A recent decision by the North Carolina Court of Appeals clarifies which documents and testimony must be disclosed in an ongoing medical malpractice lawsuit concerning the treatment of a deceased patient at UNC Medical Center. The ruling affects what information can be obtained by the plaintiff regarding alleged negligence by three physicians and related parties involved in the patient’s care.
The complaint was filed by Paula M. McGehee, acting as Executrix of the Estate of Tony Miller McGehee, against Mark Adam Farber, M.D., Fernando Motta, M.D., and Paul Brian Tessmann, M.D., all individually named as defendants. The appeal was heard on January 13, 2026, following an order entered on February 28, 2025, by Judge Thomas H. Lock in Harnett County Superior Court.
According to court documents, Tony Miller McGehee was transferred to UNC Medical Center on August 8, 2021 for evaluation of right flank pain that radiated to his groin. Initial scans indicated concerns for an aortic dissection. Subsequent imaging interpreted by UNC radiologists reported findings consistent with a Stanford Type A aortic dissection. Dr. Motta ordered further scans; Dr. Tessmann admitted Mr. McGehee to the intensive care unit for additional cardiac-gated CT scans performed on August 11 and August 13, both indicating similar findings.
Despite these results, Mr. McGehee was discharged from UNC Medical Center on August 13 with instructions to follow up in one month. He suffered cardiac arrest the next morning and died at Cape Fear Valley Medical Center due to an aortic aneurysm and dissection.
The estate alleges that the defendants were negligent in their treatment decisions leading up to Mr. McGehee’s death. In response to discovery requests from the plaintiff’s counsel—including subpoenas for incident reports related to Mr. McGehee’s care, complaints against Dr. Farber from staff or patients, and records regarding Dr. Farber’s training or discipline—UNC Health and several non-party physicians sought to quash or limit disclosure based on claims of privilege under federal and state law.
Specifically at issue were protections under the Patient Safety and Quality Improvement Act (Patient Safety Act), North Carolina’s medical review-committee privilege statute (N.C.G.S §131E-95), and physician-patient privilege (N.C.G.S §8-53). Appellants argued that certain documents—including a Safety Awareness for Everyone (SAFE) report—were protected as privileged work product or confidential committee proceedings.
The trial court denied motions to quash but granted protective orders requiring production of subpoenaed materials subject to redaction and limiting some deposition questioning.
On appeal, Judge Collins wrote that while immediate appeals are generally not allowed for interlocutory orders during ongoing litigation, exceptions exist when substantial rights are affected—such as assertions of statutory privilege over sensitive materials.
After reviewing evidence including hospital policies and affidavits submitted by UNC Health officials such as Dr. David Zvara (Chief Medical Officer), the appellate court found that UNC Health did not meet its burden under federal law to show that the SAFE report was created solely for reporting to a patient safety organization—a requirement for protection under the Patient Safety Act: “UNC Health may not shield otherwise discoverable internal documents from disclosure merely by routing them through their patient safety evaluation system.”
Regarding peer review protections under state law, the court noted that while information learned solely through medical review committee proceedings is privileged—and witnesses cannot be compelled to testify about such matters—the privilege does not extend to facts available from original sources outside those proceedings: “We add…that subpoenaed non-party physicians may not be compelled to answer such inquiries where their testimony would provide information gained solely through medical-review committee proceedings.” The order allowing broad deposition questioning was therefore vacated in part and remanded for clarification consistent with this limitation.
Finally, addressing physician-patient privilege claims over spreadsheets containing complaints about Dr. Farber submitted through hospital channels rather than directly through treating physicians or during clinical encounters—the court found no evidence these records were covered by statutory privilege: “Appellants offered no evidence that the information was communicated to a physician for treatment or derived from a physician’s examination.” The trial court’s order requiring production of redacted versions of these spreadsheets subject to protective order was affirmed.
In summary, the appellate court affirmed parts of the lower court’s discovery order relating to disclosure of certain reports and complaints but vacated portions regarding deposition testimony protected by peer review privilege; it remanded those issues back for further clarification consistent with applicable law.
Attorneys representing appellants included Matthew W. Sawchak, Erik R. Zimmerman, Clara Nieman (Robinson Bradshaw & Hinson P.A.), Ryan Shuirman and Kelley M. Petcavich (Cranfill Sumner LLP), Barry Cobb (Walker Allen LLP), Alex J. Hagan (Ellis & Winters LLP). Plaintiff-appellee Paula M. McGehee was represented by R. Bailey Melvin (The Melvin Law Firm P.A.). The case number is COA25-589.
Source: COA25589_McGehee_v_Farber_MD_Opinion_North_Carolina_Court_of_Appeals.pdf
