Lavelle v. Guilford County Area Mental Illness, Mental Retardation & Substance Abuse Authority

WYNN, Judge. Plaintiff Janelle M. Lavelle received outpatient mental health services from defendant Guilford County Area Mental Illness, Mental Retardation and Substance Abuse Authority (Mental Health) for approximately two years. In April 1991 plaintiff disagreed with Mental Health’s proposed course of treatment which included termination of her therapy. Plaintiff filed a grievance with Mental Health and obtained an external advocate pursuant to N.C. Gen. Stat. § 122C-53 to assist her with the grievance process. Plaintiff and her advocate [76] requested a copy of plaintiff’s confidential records but Mental Health refused to release them. Plaintiff then retained an attorney who requested access to plaintiffs records and provided a release signed by plaintiff. Dr. Jan D. Lhotsky, a Mental Health employee, replied that he would only give plaintiffs attorney copies of plaintiff’s grievance form and her involuntary commitment certificate and would not release any other of plaintiffs mental health records. Dr. Lhotsky said the other records in plaintiff’s file would be injurious to plaintiff’s physical or mental health if shown to her. Plaintiff then filed this action seeking a temporary restraining order and a preliminary injunction directing defendants to release plaintiff’s complete file with Mental Health, a permanent injunction to the same effect, a declaratory judgment that N.C. Gen. Stat. § 122C-53(i) requires Mental Health to release all confidential information to an attorney upon the request of a client without restrictions, and attorney’s fees. On 19 September 1991 the trial court granted plaintiff a preliminary injunction which provided in pertinent part: 1. That the Defendants and all other persons who are their officers, agents, servants, employees and attorneys are hereby enjoined from refusing to release Plaintiff’s confidential records with Defendants to counsel for Plaintiff upon Plaintiff’s request; 2. That the attending physician or facility director or his designee must identify and mark which specific documents in Plaintiff’s confidential Mental Health record may be injurious to Plaintiff’s mental or physical well-being; [[Image here]] 5. That counsel for Plaintiff must not release to Plaintiff such confidential records that have been marked as injurious to plaintiff as set out in paragraph 2 (two) above, unless or until a psychiatrist or psychologist of Plaintiff’s choice determines that such marked documents would not be injurious to Plaintiff’s mental or physical well-being, or unless or until a judgment or order in this action or an action superceding (sic) this action finds that Plaintiff may have access to such documents; Subsequently both plaintiff and defendants moved for summary judgment. The trial court granted defendants’ motion for summary judgment. From that judgment, plaintiff appeals. [77] Plaintiff assigns error to the trial court’s granting of defendants’ motion for summary judgment on the grounds that N.C. Gen. Stat. § 122C-53 “requires defendants to release to an attorney all confidential information relating to a client upon the request of that client.” Our review of the record reveals, however, that plaintiff has not raised the issue of the proper construction of N.C. Gen. Stat. § 122C-53 before the trial court nor presented any argument in her brief that she is entitled to a permanent injunction or a declaratory judgment interpreting this statute. Questions not presented and discussed in a party’s brief are deemed abandoned. N.C.R. App. P. 28(a); see Gentile v. Town of Kure Beach, 91 N.C. App. 236, 371 S.E.2d 302 (1988); State v. Oliver, 82 N.C. App. 135, 345 S.E.2d 697 (1986), cert. denied, 321 N.C. 123, 361 S.E.2d 601 (1987). Since plaintiff has received the relief she requested, there is no question of law remaining and summary judgment was properly entered for defendants. Summary judgment shall “be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990). The moving party must carry the burden of establishing the lack of a genuine issue as to any material fact and its entitlement to judgment as a matter of law. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Myers v. Barringer, 101 N.C. App. 168, 398 S.E.2d 615 (1990). An issue is genuine if it can be supported by substantial evidence. Martin v. Ray Lackey Enterprises, Inc., 100 N.C. App. 349; 396 S.E.2d 327 (1990). A fact is material if would establish any material element of a claim or defense. City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 268 S.E.2d 190 (1980). The purpose of summary judgment is to eliminate formal trials where only questions of law are involved. Baumann v. Smith, 298 N.C. 778, 260 S.E.2d 626 (1979). In the instant case, plaintiff has already received the relief which she requested. The preliminary injunction ordered defendants to provide plaintiff’s attorney with her mental health records which is what she requested in her complaint. Although plaintiff’s contention that N.C. Gen. Stat. § 122C-53 requires that no confidential information may be withheld from the client’s attorney by a facility was not properly preserved for appeal, we note that the statute explicitly prohibits [78] a client from access to information in the client’s record that would be injurious to the client’s physical or mental well-being as determined by the attending physician. N.C. Gen. Stat. § 122C-53(c) (1989). It would subvert the purpose of this prohibition to allow the client’s attorney to obtain the injurious information and then pass such material to the client without restriction. Common sense requires the conclusion that an attorney should not, of his own accord, contradict the opinion of a medical professional that certain medical records would be harmful if released to the patient. The statute does not require such an absurd result. Since plaintiff received the relief to which she requested, the release of her medical file to her attorney, there were no remaining issues to be determined and the trial court properly entered summary judgment for defendants. Affirmed. Judge LEWIS concurs. Judge ORR dissents.