CLAUDIUS C. JOHNSTON, SR. v. UNITED INSURANCE COMPANY OF AMERICA, 262 N.C. 253

Bobbitt, J. Plaintiff’s assignments of error are based on his exceptions to Findings of Fact Nos. 2 and 7, to Conclusions of Law Nos. 1 and 2 and to the order. Plaintiff did not tender findings of fact or except to the court’s failure to find additional facts. Plaintiff excepted to the court’s finding (Finding of Fact No. 2) that notice of defendant’s motion was “duly” served on Duke University Medical Center of Duke Hospital on the ground “such person is not a party to this action'.” Plaintiff admits “such notice was actually received” by Duke University Medical Center.

We perceive nothing prejudicial to plaintiff in the court’s finding. Plaintiff’s exceptions to Finding of Fact No. 7 and to Conclusion of Law No. 2 may be considered together. The statute now codified as G.S. 8-53 created a privileged relationship between physician and patient. Capps v. Lynch, 253 N.C. 18, 116 S.E. 2d 137, and cases cited. The extent this statutory privilege applies to hospital records is discussed by Moore, J., in Sims v. Insurance Co., 257 N.C. 32, 125 S.E. 2d 326. In Lockwood v.

McCaskill, 261 N.C. 754, 136 S.E. 2d 67, decided May 6, 1964, it was held that the words, “the presiding judge of a superior court” as used in the proviso of G.S. 8-53, refer to the superior court judge who presides at the trial. This case was calendared as stated in Finding of Fact No. 1. There was no trial. The hearing was on defendant’s motion. Under our decision in Lockwood, Judge Carr did not have discretionary authority under the proviso in G.S. 8-53 to compel disclosure of the privileged portion, if any, of the hospital records.

Hence, there is merit in plaintiff’s exceptions to Finding of Fact No. 7 and to Conclusion of Law No. 2. The crucial question is whether the unchallenged findings of fact support Conclusion of Law No. 1 and the order.

Upon the facts found, nothing else appearing, we are of opinion, and so decide, that defendant, by reason of the authorizations set forth in Findings of Fact Nos. 5 and 6, is entitled as of right (as between plaintiff and defendant) to inspect and to copy hospital records relevant to plaintiff’s claim; and that, to the extent the hospital records contain entries privileged under G.S. 8-53, such authorizations constitute a waiver of the privilege. As to waiver of privilege, see Capps v. Lynch, supra, and cases cited; 16 N.C.L.R. 53 et seq.

Whether such hospital records are incompetent, in whole or in part, on grounds other than the privilege created by G.S. 8-53 is not presented. Plaintiff contends the authorization (waiver) set out in Finding of Fact No. 5 refers only to physician (

s) who attended him prior to the issuance of the policy. He cites Bryant v. Modern Woodmen of America (Neb.), 125 N.W. 621, 27 L.R.A. (N.S.) 326, and Pride v. Interstate Business Men’s Acc. Ass’n (Iowa), 216 N.W. 62, 62 A.L.R. 31. In Bryant, the evidence related to consultations, diagnoses, etc., prior to the issuance of the policy. In Pride, the authorization (waiver) referred expressly to any physician or surgeon who had been consulted by the insured. Here, while the authorization (waiver) set out in Finding of Fact No. 5 is not as full and complete as the authorizations (waivers) considered in Fuller v.

Knights of Pythias, 129 N.C. 318, 40 S.E. 65, and Metropolitan Life Ins. Co. v. Brubaker (Kan.), 96 P. 62, 18 L.A.R. (N.S.) 362, it does apply expressly to any physician who has attended or may attend the insured. Clearly, if and when authorized, such disclosure is not “prohibited by law” within the meaning of that phrase as used in the authorization (waiver) set out in Finding of Fact No. 5. We need not determine whether the authorization (waiver) set out in Finding of Fact No. 5, standing alone, would be sufficient to support Conclusion of Law No. 1 and the order.

Incompleteness therein, if any, is fully supplied by the full and complete authorizations (waivers) set out in Finding of Fact No. 6, all executed subsequent to the alleged injury (February 9, 1960) on which plaintiff bases this action. The unchallenged findings of fact and Conclusion of Law No. 1 support Judge Carr’s order “that the defendant, its agents, or attorneys, be, and they are hereby allowed to inspect and copy such hospital records of the Duke University Medical Center of Duke Hospital as relate to the injury alleged in the complaint.” (Our italics).

This, in effect, adjudges only that plaintiff has waived the statutory privilege (G.S. 8-53) with reference to such records. However, the records here involved are records of said Duke University Medical Center. They are not in the possession or under the control of plaintiff within the meaning of G.S. 8-89 et seq. Whether Duke University Medical Center should be required to produce the records “in response to a subpoena duly issued and served upon Duke University Medical Center of Duke Hospital pursuant to the statute relating to the taking of depositions” was not presented.

Hence, these words (quoted in the preceding sentence) are stricken from the order. As so modified, Judge Carr’s order is affirmed. Whether plaintiff’s appeal should be dismissed as premature is not presented or considered. Compare Buick Co. v. General Motors Corp., 251 N.C. 201, 110 S.E. 2d 870. Since Judge Carr’s order was entered prior to our decision in Lockwood, it has seemed appropriate that the appeal be considered as properly before us. Modified and affirmed.