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Workers' Compensation

Vernon R. Sumwalt on the Physician-Patient Privilege in Workers' Compensation Cases Since the Enactment of N.C. Gen. Stat. Sec. 97-25.6

For years, many appellate decisions in North Carolina have looked at the propriety of communications between parties and medical providers during litigation. Popularized by the medical malpractice case of Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), the physician-patient privilege has become one of the most litigated evidentiary issues in workers’ compensation cases since the North Carolina Court of Appeals endorsed Crist’s application in Salaam v. North Carolina Department of Transportation, 122 N.C. App. 83, 468 S.E.2d 536 (1996). This controversy led to the enactment of N.C. Gen. Stat. § 97-25.6 in late 2005, which did not so much change the law as it provided a more detailed map for previous routes to medical information. Still, the last two years of litigation has further developed—and clarified—this issue in cases arising under the North Carolina Workers’ Compensation Act. This commentary, written by Vernon Sumwalt, lays out the basic theory of the physician-patient privilege and provides advice on how to avoid its pitfalls in practice. He points out that the risk of not complying with the proper methods of getting medical information—that is, by satisfying one of the exceptions to the physician-patient privilege through appropriate means and formal discovery—has legal consequences, too. At its heart, the privilege is an evidentiary creature, meaning that a party may get access to medical information early on, only to have it kept out of evidence at a later hearing because the means of getting it were improper. E.g., Silvers v. Mastercraft Fabrics, LLC, 2006 N.C. App. LEXIS 1162, at **15-23. This is the whole point behind Crist and Salaam: When it comes to getting medical information from an opposing party’s physicians, everyone must play by the rules.
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