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North Carolina v. Miller5/6/1986
2d 110 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169, 105 S. Ct. 1877 (1985). In Huffstetler, the issue was whether the defendant was deprived of his sixth amendment right to confront his accusers when the court admitted into evidence the opinion testimony of a forensic serologist who based his opinion in part on the results of blood tests and the appellant was unable to cross-examine the person who actually performed the blood tests. Our Supreme Court held that the defendant was not denied his right to confront and cross-examine his accusers guaranteed by the sixth amendment because the information relied upon by the expert was inherently reliable and because the expert was available to be cross-examined. Id. at 108, 322 S.E.2d at 121. Recognizing the factual distinctions between the two cases we are nonetheless persuaded by the Court's reasoning in Huffstetler. Because defendant had the opportunity to vigorously cross-examine both the nurse present when the blood was withdrawn and the attending physician concerning the procedures followed in withdrawing and analyzing defendant's blood and because we regard the blood test a reliable source of information, we hold defendant's right to confront his accusers guaranteed by the sixth and fourteenth amendments was not denied.
In defendant's last Assignment of Error, defendant contends that admission of the results of defendant's blood test violates the physician patient privilege protected by G.S. 8-53. We disagree.
G.S. 8-53 protects as privileged:
any information which [the physician] may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon. . . .
G.S. 8-53. However, G.S. 8-53 also provides that a resident or presiding judge in the district may "compel disclosure if in his opinion disclosure is necessary to a proper administration of justice." G.S. 8-53.
On 1 January 1985, the Office of the District Attorney, Mecklenburg County, filed a motion requesting the court to compel disclosure of defendant's medical records. On 2 January 1985, the court found "the results of the analysis of the Defendant's blood is needed for evidence" and ordered Charlotte Memorial Hospital to furnish the reports of all tests and treatment of defendant for 26 December 1984 and 27 December 1984. We find this constitutes substantial compliance with the statute G.S. 8-53. Defendant maintains that reversible error occurred regarding the 2 January 1985 order because defendant was not given notice of the hearing of the motion to compel disclosure and was not present when the motion was heard. Defendant's challenge is without merit for two reasons. One, defendant could have appealed the 2 January 1985 order. An appeal will lie from an order to compel disclosure of medical testimony and reports. Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964). Two, any prejudice to defendant was cured when defendant had the opportunity to be heard on this matter at the 28 May 1985 pre-trial voir dire hearing of defendant's motion to suppress the results of defendant's blood test.
Each of defendant's Assignments of Error is overruled.
No error.
Disposition
No error.
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