In December the Supreme Court of North Carolina issued its opinion in
Hammond v. Saini. While it is not new law, it is a resounding confirmation of the need
to establish and operate hospital medical review committees consistent
with the letter of the statute that offers protection against disclosure
during discovery and at trial of "[t]he proceedings of a medical
review committee, the records and materials it produces and the material
it considers." NCGS 131E-95(b).
Most hospitals seek protection under a definition of "medical review
committee" contained in NCGS 131E76(5)c.:
A committee of a hospital or hospital system, if created by the governing
board or medical staff of the hospital or system operating under written
procedures adopted by the governing board or medical staff of the hospital
At issue in
Hammond was whether a root cause analysis report and other materials produced
or produced by the hospital's Root Cause Analysis Team investigating
an operating room fire were discoverable. The critical language in the
The party asserting the privilege has the burden to demonstrate each of
its essential elements and cannot meet this burden by mere conclusory
assertions.... [T]o establish the applicability of the definition in subdivision
(c), the evidence must set forth either how the committee was "created"
or how the "written procedures" it "operat[es] under"
The Supreme Court, as had the Court of Appeals and the trial court in Cumberland
County, found that the hospital had not carried that burden and confirmed
the trial court's order for the hospital to produce all of the information
it obviously believed would not be disclosed.
It is a good idea for hospitals in North Carolina to examine carefully
the formalities by which they create medical review committees and the
procedures by which those committees conduct their investigations. Clearly,
experienced plaintiffs' attorneys are seeking disclosure through discovery
of any information following a sentinel event or other incident that results
in a lawsuit. Since the Court's decision inHammond v. Saini, we have begun to assist some of our hospital clients in that kind of proactive
examination before facing discovery requests that may yield the same results
the hospital system faced in
Hammond v. Saini.
About the Author:
Allan R. Tarleton is a partner at The Van Winkle Law Firm. He can be reached
in the firm’s Asheville office at (828) 258-2991 or
Click here for more information about Allan and his practice.