Summary
holding the trial court abused its discretion where the trial court concluded the expert's trial testimony did not satisfy N.C. Gen. Stat. § 90-21.12 ’s requirements
Summary of this case from Miller v. Carolina Coast Emergency Physicians, LLCOpinion
No. COA03-558
Filed 7 December 2004
Medical Malpractice — expert testimony excluded — standard of care — similar community
The trial court erred by excluding a doctor's expert testimony from a medical malpractice trial based on the conclusion that the witness was articulating a national standard of care. Although the doctor testified that the standard of care for the surgery in question is national, the issue is whether his testimony as a whole meets the requirements of N.C.G.S. § 90-21.12. He established his knowledge of the standard of care in a similar community in light of his equivalent skill and training, familiarity with the equipment and techniques used in the surgery at issue, his first-hand investigation of the town where the surgery was performed (Rocky Mount) and its hospital, and his testimony about the similarity of Rocky Mount to the communities where he had practiced.
Judge STEELMAN dissenting.
Appeal by plaintiff from order entered 19 December 2002 by Judge Milton F. Fitch, Jr. in Nash County Superior Court. Heard in the Court of Appeals 18 March 2004.
Rountree Boyette, L.L.P., by Charles S. Rountree, for plaintiff-appellant. Yates, McLamb Weyher, L.L.P., by Barry S. Cobb, for defendants-appellees.
Jennifer L. Pitts ("plaintiff"), administratrix of the estate of Felicia Hope Lynch, appeals from order of the trial court excluding the testimony of plaintiff's expert witness and directing a verdict in favor of defendants, Englewood OB-GYN Associates, Inc. ("Englewood"), Tommy R. Harris ("Dr. Harris"), and Moses E. Wilson ("Dr. Wilson"). For the reasons stated herein, we reverse.
Plaintiff previously took a voluntary dismissal of all claims against Nash Day Hospital, Inc. with prejudice.
This lawsuit arose out of allegations of negligence surrounding laparoscopic surgery performed on Felicia Hope Lynch ("Ms. Lynch") by Dr. Harris on 13 January 1998. Due to chronic pelvic pain and an adnexa cyst, Ms. Lynch's physician referred her to Dr. Harris, a board-eligible but not board-certified specialist in obstetrics and gynecology with operative privileges at Nash Day Hospital. Ms. Lynch's sonogram revealed an ovarian cyst measuring five centimeters. Dr. Harris scheduled Ms. Lynch for surgery to remove the cyst.
On 13 January 1998 at Nash Day Hospital after Ms. Lynch was placed under anesthesia and examined, Dr. Harris commenced the laparoscopic surgery for removal of the cyst and possibly an ovary. During the surgery, Dr. Harris discovered the cyst was much smaller than originally anticipated but multiple adhesions in Ms. Lynch's pelvic region connected her organs to her abdominal wall. Dr. Harris changed his surgical plan and attempted to cut and release the adhesions but stopped when he deemed it was no longer safe and saw that he could not remove all the adhesions. Upon completion of the surgery, Dr. Harris placed a clear fluid in the abdominal cavity to ensure there was no remaining internal bleeding and found no indication of any bleeding. After surgery, Ms. Lynch was taken to the Nash Day Hospital recovery room, where it was noted that her blood pressure had dropped. Nevertheless, Dr. Harris never examined or observed Ms. Lynch after the surgery. He testified that Ms. Lynch was not yet awake, "so there was nothing for me to say to her." Dr. Harris also testified that, after surgery, it was standard practice for the anesthesiologist, rather than the operating surgeon, to manage the care of the patient in the recovery room.
Following discharge, Ms. Lynch experienced nausea, vomiting, abdominal cramps, and was also lethargic and pale. James Lee Williams ("Mr. Williams"), Ms. Lynch's boyfriend, called Dr. Harris' office, Englewood, multiple times reporting the problems Ms. Lynch was experiencing. The office staff, on behalf of Dr. Harris' partner, Dr. Wilson, told Mr. Williams the symptoms were normal. On the night of 14 January 1998, Ms. Lynch stopped breathing and efforts to resuscitate her were unsuccessful. She was pronounced dead in the emergency room at Halifax Memorial Hospital. The medical examiner determined the cause of her death was "exsanguination from the left ovarian artery." Stated another way, Ms. Lynch bled to death internally from a cut to her left ovarian artery, either by "scalpel or trochar injury" or while the "adhesions were being lysed." At the time of her death, Ms. Lynch was twenty-eight years old.
Plaintiff brought suit for wrongful death and medical malpractice. Plaintiff alleges Dr. Harris was negligent in his surgical performance and administration of post-operative care. Plaintiff also contends Dr. Wilson failed to properly respond to the telephone calls from Mr. Williams alerting him and his staff of Ms. Lynch's failing condition.
At trial, plaintiff tendered one expert witness, Daniel M. Strickland ("Dr. Strickland"), as an "expert in the standards of practice in this case." Three separate times, plaintiff attempted to tender Dr. Strickland as an expert witness. Defendants objected each time, contending plaintiff had failed to establish Dr. Strickland was familiar with the standard of care in Rocky Mount or a similar community, as required by N.C. Gen. Stat. § 90-21.12 (2003). The trial court allowed plaintiff to reopen Dr. Strickland's testimony in order to make a further showing on the issue of "similar community." After finding that plaintiff failed to present competent medical testimony establishing the relevant standard of care, the trial court granted defendants' motion for directed verdict. Plaintiff appeals.
Plaintiff assigns error to the trial court's finding of fact that Dr. Strickland was not familiar with "the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act." Plaintiff also assigns error to the trial court's conclusions of law that Dr. Strickland's testimony was irrelevant, immaterial, and inadmissible. We agree with plaintiff and reverse the trial court.
The trial court directed a verdict in the case sub judice after determining that Dr. Strickland could not show personal knowledge of the standard of care for laparoscopic surgery in Rocky Mount or a similar community. We initially note that "[t]he competency of a witness to testify as an expert is addressed to the sound discretion of the trial court and the trial court's determination will not be disturbed by the reviewing court in the absence of an abuse of discretion." Barham v. Hawk, 165 N.C. App. 708, 711-12, 600 S.E.2d 1, 4 (2004). In determining whether the trial court abused its discretion, we consider N.C. Gen. Stat § 90-21.12, which sets forth the standard of care in medical malpractice cases:
In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
In analyzing N.C. Gen. Stat. § 90-21.12, the trial court opined that the legislature "intended in every way to say as strongly as they could say it that North Carolina wishes to avoid a national standard of care." The court concluded that "Dr. Strickland has articulated a national standard rather than the local standard of Rocky Mount."
Although Dr. Strickland testified that the standard of care for laparoscopic surgery is a national standard, we are not of the opinion that such testimony inexorably requires that his testimony be excluded. Rather, the critical inquiry is whether the doctor's testimony, taken as a whole, meets the requirements of N.C. Gen. Stat. § 90-21.12. In making such a determination, a court should consider whether an expert is familiar with a community that is similar to a defendant's community in regard to physician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community. See Henry v. Southeastern OB-GYN Assocs., P.A., 145 N.C. App. 208, 211, 550 S.E.2d 245, 247 (2001); Tucker v. Meis, 127 N.C. App. 197, 198-99, 487 S.E.2d 827, 829 (1997).
There appears to be some conflict concerning what testimony sufficiently obviates the need to show an expert's familiarity with a defendant's community under N.C. Gen. Stat. § 90-21.12. This Court has previously held that "while `it was the intent of the General Assembly to avoid the adoption of a national or regional standard of care for health care providers,' if the standard of care for a given procedure is `the same across the country, an expert witness familiar with that standard may testify despite his lack of familiarity with the defendant's community[.]'" Marley v. Graper, 135 N.C. App. 423, 428, 521 S.E.2d 129, 133-34 (1999) (internal citations omitted) (emphasis added). See also Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 656-57, 535 S.E.2d 55, 67 (2000); Haney v. Alexander, 71 N.C. App. 731, 736, 323 S.E.2d 430, 434 (1984). Subsequent opinions of this Court more stringently focused on the intent of the General Assembly to avoid a national standard of care. See Henry, 145 N.C. App. at 210-11, 550 S.E.2d at 246 (2001) (noting the "similar community" standard "encompasses more than mere physician skill and training" and includes variations in facilities, equipment, funding, and also "the physical and financial environment"); Tucker v. Meis, 127 N.C. App. 197, 198, 487 S.E.2d 827, 829 (1997). As such, Henry requires some level of familiarity with a defendant's community even if an expert testifies the standard is the same across the country. Yet, a recent opinion has questioned whether Henry constitutes controlling authority, see Cox v. Steffes, 161 N.C. App. 237, 245 n. 1, 587 S.E.2d 908, 914 n. 1 (2003), disc. rev. denied, 358 N.C. 233, 595 S.E.2d 148 (2004), and distinguished Henry. Id.
In the case sub judice, the evidence showed that Dr. Strickland's skill, training, and experience in obstetrics and gynecology are comparable to Dr. Harris' skill, training, and experience. Regarding the respective physician skill and training, the evidence showed that Dr. Harris is a board-eligible specialist in obstetrics and gynecology. Dr. Strickland is a board-certified specialist in obstetrics and gynecology. Dr. Harris and Dr. Strickland were trained outside of North Carolina but practiced medicine in multiple communities within the State. Dr. Harris undergoes continuing medical education including 150 hours of required credits every three years and also takes numerous courses in Maryland and Georgia. Dr. Strickland is a Fellow with the American College of Obstetricians and Gynecologists.
The evidence was also sufficient to show that facilities, equipment, funding, and the physical and financial environment of both the communities in which Dr. Strickland practiced obstetrics and gynecology and in Rocky Mount are similar. Dr. Strickland is licensed in five states, currently practices in West Jefferson, North Carolina, and has also practiced extensively in other locations throughout North Carolina including Albemarle, Boone, Elkin, Lenoir/Hickory, Mount Airy, and Wilkesboro. At trial, Dr. Strickland specifically cited the population and median income of Rocky Mount and testified that Rocky Mount is similar to communities in which he has practiced in terms of population served, rural nature, depressed economy, and limitations on resources. Additionally, prior to testifying, Dr. Strickland not only observed the community of Rocky Mount but also noted the size of Nash Day Hospital. Dr. Strickland also testified that he deduced from medical records and Dr. Harris' deposition the type of equipment and techniques Dr. Harris used in Ms. Lynch's surgery. Dr. Strickland was familiar with the equipment because he used similar to equipment in other communities in his medical practice.
Dr. Strickland's testimony falls within the scope of testimony that this Court has held to be permissible under N.C. Gen. Stat. § 90-21.12. In Cox v. Steffes, this Court summarized some of the relevant cases:
In Coffman v. W. Earl Roberson, M.D., P.A., 153 N.C. App. 618, 624-25, 571 S.E.2d 255, 259 (2002), disc. review denied, 356 N.C. 668, 577 S.E.2d 111 (2003), this Court held that a doctor's testimony regarding standard of care was sufficient when the doctor testified generally that he was familiar with the standard of care in communities similar to Wilmington, that he based his opinion on Internet research regarding the hospital, and that he knew the hospital was a sophisticated training hospital. See also Leatherwood v. Ehlinger, 151 N.C. App. 15, 22-23, 564 S.E.2d 883, 888 (2002) (reversing directed verdict when plaintiffs' expert specifically testified that he had knowledge of the standards of care in Asheville and similar communities because of his practice in communities of similar size to Asheville and because he had attended rounds as a medical student in the Asheville hospital at issue), disc. review denied, 357 N.C. 164, 580 S.E.2d 368 (2003).
Cox, 161 N.C. App. at 244-45, 587 S.E.2d at 913 (emphasis added). This Court went on to find the expert had sufficiently acquainted himself with the relevant community standards when he reviewed written information from the plaintiff's counsel prior to testifying. Id. Dr. Strickland's familiarity with Rocky Mount exceeds that previously deemed sufficient by this Court in reviewing the propriety of and reversing a directed verdict. Accordingly, we hold that Dr. Strickland established his knowledge of the standard of care in a "similar community" in light of his equivalent skill and training, familiarity with the equipment and techniques used by Dr. Harris, first-hand investigation of Rocky Mount and its hospital, and his testimony as to the similarity in the communities where he has practiced and Rocky Mount.
Because we hold that Dr. Strickland established that he had knowledge of a similar community and the trial court abused its discretion in excluding his testimony, we do not reach plaintiff's other assignments of error.
Reversed.
Judge McGEE concurs.
Judge STEELMAN dissents in a separate opinion.