Medical Malpractice--expert witness--standard of care--general practitioner
The trial court did not err in a medical malpractice action by ruling that plaintiff's expert
witnesses were not qualified to testify as to the applicable standard of care, resulting in a proper
directed verdict for defendant, where defendant was a general practitioner and all three of
plaintiff's witnesses were specialists as that term is used in the statute. N.C.G.S. § 8C-1, Rule
702 requires that an expert witness against a general practitioner must be a general practitioner;
doctors who are either board certified in a specialty, who hold themselves out to be specialists, or
who limit their practice to a specific field of medicine are properly deemed specialists.
Britt & Britt, P.L.L.C., by William S. Britt, for plaintiff-
appellant.
Walker, Clark & Allen, L.L.P., by Robert D. Walker, Jr. and O.
Drew Grice, Jr., for defendant-appellee.
SMITH, Judge.
Plaintiff Marie T. FormyDuval, administratrix of the estate of
Hartwell B. FormyDuval (decedent), appeals from the trial court's
orders (1) prohibiting her expert witnesses from testifying as to
the applicable standard of care and (2) dismissing her wrongful
death claim against defendant. We affirm.
Defendant is a physician practicing as a general practitioner
in Whiteville, North Carolina, whose medical training included four
years of medical school and a one year internship. Decedent first
became a patient of defendant in 1976. On 26 August 1993,
decedent, complaining of red spots on his legs and ankles and bluespots on his forearms and legs, was seen by defendant in
defendant's office. It appears from the record that defendant drew
blood from decedent and sent the blood sample to a lab in
Burlington for analysis.
Plaintiff alleges the analysis of the blood sample was
returned to defendant's office Friday, 27 August 1993, but that
defendant did not inform decedent or plaintiff of the results of
the analysis until 31 August 1993. On that date, decedent returned
for a scheduled follow-up visit with defendant, at which defendant
diagnosed decedent with thrombocytopenia purpura. Defendant
alleges he implored decedent to be hospitalized to treat his
condition, but decedent refused hospitalization.
Plaintiff called defendant after decedent's appointment, and
alleges she was not informed of defendant's recommendation that
decedent be hospitalized. On 2 September 1993, decedent complained
of a severe headache and blurry vision, and was taken to
defendant's office by plaintiff. Defendant advised plaintiff to
immediately take decedent to the emergency room. Decedent died at
the hospital 3 September 1993.
Plaintiff originally filed suit against defendant in 1995, but
took a voluntary dismissal of that action and subsequently refiled
on 19 August 1997. See N.C.G.S. § 1A-1, Rule 41(a) (1999).
Plaintiff's refiled action alleged, inter alia, defendant “failed
to properly refer [decedent] to specialists,” should have “taken amore aggressive approach to [decedent's] treatment, including
hospitalization,” and upon receiving the blood test results,
“should have called [d]ecedent . . . and insisted that he go to the
hospital.” Defendant answered 28 August 1997 denying hisnegligence and asserting decedent's contributory negligence in bar
of plaintiff's claims.
Trial began 12 April 1999. After hearing opening statements
from both parties, the trial court heard argument regarding whether
the expert medical witnesses plaintiff wished to call at trial, Dr.
Lloyd McCaskill (Dr. McCaskill), Dr. Douglass Hammer (Dr. Hammer),
and Dr. Eugene Paschold (Dr. Paschold), were qualified to testify
against defendant pursuant to N.C.G.S. § 8C-1, Rule 702(c) (1999)
(Rule 702). The parties also conducted a voir dire examination of
Dr. McCaskill. The trial court then ruled, pursuant to defendant's
Motion to Exclude Testimony of Expert Witnesses, that plaintiff's
experts were not qualified to testify as to the applicable standard
of care. Plaintiff thereupon rested her case, and defendant's
subsequent motion for directed verdict was granted by the trial
court. The sole issue on appeal is whether plaintiff's witnesses
were properly disqualified.
Rule 702 governs the admissibility of expert testimony. Prior
to 1996, Rule 702 stated:
If scientific, technical or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion.
Rule 702 was amended in 1995, with the amendments effective 1
January 1996 and applicable to all cases filed on or after that
date. See 1995 N.C. Sess. Laws ch. 309, § 1. The parties concede
that the amended version of the Rule applies to the instant action,which was refiled 19 August 1997. We assume without deciding that
the parties are correct, and thus apply Rule 702, as amended, to
the case sub judice.
The amended rule retains the language quoted above and adds
several provisions relating specifically to expert witnesses
testifying to the appropriate standard of care in medical
malpractice actions. See Andrews v. Carr, 135 N.C. App. 463, 469,
521 S.E.2d 269, 273 (1999), disc. review denied, 351 N.C. 471, ___
S.E.2d ___ (2000). Rule 702(b)(1) governs expert testimony on the
“appropriate standard of health care” offered against or on behalf
of a “specialist,” while Rule 702(c) governs such testimony offered
against or on behalf of a “general practitioner:”
(b) In a medical malpractice action as defined
in G.S. 90-21.11, a person shall not give
expert testimony on the appropriate standard
of health care as defined in G.S. 90-21.12
unless the person is a licensed health care
provider in this State or another state and
meets the following criteria:
(1) If the party against whom or on whose
behalf the testimony is offered is a
specialist, the expert witness must:
a. Specialize in the same specialty as the
party against whom or on whose behalf the
testimony is offered; or
b. Specialize in a similar specialty which
includes within its specialty the performance
of the procedure that is the subject of the
complaint and have prior experience treating
similar patients.
(2) During the year immediately preceding the
date of the occurrence that is the basis for
the action, the expert witness must have
devoted a majority of his or her professional
time to either or both of the following:
a. The active clinical practice of the same
health profession in which the party against
whom or on whose behalf the testimony is
offered, and if that party is a specialist,
the active clinical practice of the same
specialty or a similar specialty which
includes within its specialty the performance
of the procedure that is the subject of the
complaint and have prior experience treating
similar patients; or
b. The instruction of students in an
accredited health professional school or
accredited residency or clinical research
program in the same health profession in which
the party against whom or on whose behalf the
testimony is offered, and if that party is a
specialist, an accredited health professional
school or accredited residency or clinical
research program in the same specialty.
(c) Notwithstanding subsection (b) of this
section, if the party against whom or on whose
behalf the testimony is offered is a general
practitioner, the expert witness, during the
year immediately preceding the date of the
occurrence that is the basis for the action,
must have devoted a majority of his or her
professional time to either or both of the
following:
(1) Active clinical practice as a general
practitioner; or
(2) Instruction of students in an accredited
health professional school or accredited
residency or clinical research program in the
general practice of medicine.
Both parties agree that (1) defendant in this case is a “general
practitioner,” such that Rule 702(c) governs the instant action;
and, (2) none of plaintiff's proffered witnesses were engaged in
instruction of students in the year preceding August 1993, such
that section (c)(2) is inapplicable. Thus, to testify against
defendant as to the applicable standard of care, plaintiff's
experts must have, in the year preceding August 1993, (1) devoteda majority of their “professional time” (2) to “active clin
ical
practice” (3) as a “general practitioner.” Rule 702(c)(1). All
three statutory requirements must be met in order to testify.
“[O]rdinarily, whether a witness qualifies as an expert is
exclusively within the discretion of the trial judge.” State v.
Underwood, 134 N.C. App. 533, 541, 518 S.E.2d 231, 238 (1999),
cert. allowed, 351 N.C. 368, ___ S.E.2d ___ (2000). However, where
an appeal presents questions of statutory interpretation, full
review is appropriate, and a trial court's conclusions of law are
reviewable de novo. Mark IV Beverage, Inc. v. Molson Breweries
USA, Inc., 129 N.C. App. 476, 480, 500 S.E.2d 439, 442, disc.
review denied, 349 N.C. 231, 515 S.E.2d 705 (1998).
De novo review is appropriate in the instant case, as
plaintiff contends the trial court's decision was based on an
incorrect “reading and construction of Rule 702,” specifically the
trial court's interpretation of the terms “clinical practice” and
“general practitioner.”
(See footnote 1)
See id.; see also Trapp v. Maccioli, 129
N.C. App. 237, 239, 497 S.E.2d 708, 710, disc. review denied, 348
N.C. 509, 510 S.E.2d 672 (1998) (whether medical malpractice
plaintiff could reasonably expect witness who reviewed complaint to
qualify as expert witness under Rule 702(b), as required by N.C.R.
Civ. P. 9(j), is question of law subject to de novo review).
Accordingly, this Court must determine
(1) whether the trial court's conclusions of
law support its judgment or determination, (2)whether the trial court's conclusions of law
are supported by its findings of fact, and (3)
whether the findings of fact are supported by
a sufficiency of the evidence.
Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714
(1989). Plaintiff herein did not assign error to the trial court's
findings of fact. Thus, we presume the findings are supported by
sufficient evidence, and they are binding on appeal. Steadman v.
Pinetops, 251 N.C. 509, 514-15, 112 S.E.2d 102, 106 (1960).
The starting point for our analysis of the issues raised by
plaintiff is Rule 702 itself. The “cardinal principle” of
statutory construction “is to ensure accomplishment of the
legislative intent.” Polaroid Corp. v. Offerman, 349 N.C. 290,
297, 507 S.E.2d 284, 290 (1998), cert. denied, ___ U.S. ___, 143 L.
Ed. 2d 671 (1999).
To determine legislative intent, a court must
analyze the statute as a whole, considering
the chosen words themselves, the spirit of the
act, and the objectives the statute seeks to
accomplish.
Brown v. Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 895 (1998).
Words not defined in the statute “are given their plain meaning so
long as it is reasonable to do so.” Polaroid Corp., 349 N.C. at
297, 507 S.E.2d at 290.
We begin with an analysis of sections (b) and (c). Rule
702(b) is a default provision, applicable to all medical
malpractice actions except those against “general practitioners,”
as provided in section (c). Pursuant to section (b)(1), if thedefendant in a medical malpractice action is a specialist
practicing in the area of his or her specialty, then any expert
witness testifying as to the standard of care applicable to the
defendant must also be a specialist; similarly, if the defendant is
a general practitioner practicing in that area of medicine, the
expert witness must be a general practitioner. Rule 702(c).
Portions of section (b) and (c) at first glance appear to
overlap. By its terms, Rule 702(b) applies to all medical
malpractice actions against any “health care provider.” See
N.C.G.S. § 90-21.11 (1999). Section (b)(2)(a) requires expert
witnesses to have engaged in “active clinical practice of the same
health profession” as the defendant, or, if the defendant is a
specialist, in “active clinical practice of the same specialty” as
the defendant. The first part of section (b)(2)(a), which applies
to non-specialists only, thus could be construed to overlap with
section (c), which contains a similar provision regarding “active
clinical practice as a general practitioner,” if the term “general
practitioner” is equated with a non-specialist.
However, it appears the intent of the legislature was to limit
the applicability of section (c) to physicians, as section (c)(2)
refers specifically to instruction of students “in the general
practice of medicine.” See N.C.G.S. § 90-18 (1999) (defining the
“practice of medicine” to exclude the practice of, inter alia,
dentistry, pharmacy, optometry, chiropractic, and nursing); cf.
G.S. § 90-21.11 (defining health care provider as one who, inter
alia, practices dentistry, pharmacy, optometry, chiropractic, ornursing). This interpretation avoids any potential redundancy.
See, e.g., State v. Bates, 348 N.C. 29, 35, 497 S.E.2d 276, 279
(1998) (statute must be construed, if possible, to give meaning to
all its provisions).
Thus, we interpret the statute to apply as follows: health
care providers other than physicians are governed exclusively by
section (b). Section (c) applies only to physicians who are
“general practitioners,” while section (b) applies only to
physicians who are “specialists.”
The terms “general practitioner” and “specialist” are not
defined in Rule 702. We thus look to the “plain meaning” of these
terms. Polaroid Corp., 349 N.C. at 297, 507 S.E.2d at 290.
Dictionaries may be used to determine the plain meaning of words.
Hunter v. Kennedy, 128 N.C. App. 84, 86, 493 S.E.2d 327, 328
(1997).
“General practitioner” is variously defined as a physician
“who does not limit his practice to a specialty,” Webster's Third
New International Dictionary 945 (1966), a “physician whose
practice covers a variety of medical problems in patients of all
ages,” American Heritage College Dictionary 567 (3d ed. 1997), and
a “physician who does not hold specialty qualifications, and who
does not restrict his practice to any particular field of
medicine,” Vergil N. Slee, Debora A. Slee, & H. Joachim Schmidt,
Health Care Terms 476 (3d ed. 1996) (hereinafter Health Care
Terms).
“Specialist” is defined as a “physician whose practice islimited to a partic
ular branch of medicine or surgery, esp. one
certified by a board of physicians.” American Heritage College
Dictionary 1307; see also 5 J.E. Schmidt, Attorney's Dictionary of
Medicine S-219 (1999) (defining specialist as a “medical
practitioner who limits his practice to certain diseases . . .; a
person who is a diplomate of one of the specialty boards”). Board
certification in a speciality area of medicine is voluntary, and is
available to physicians who, after graduating from medical school,
complete a residency of at least three years, pass a written
examination in the specialty, and in some cases, practice full-time
in the specialty for an additional period of time following
completion of the residency. See 1 American Board of Medical
Specialties, The Official ABMS Directory of Board Certified Medical
Specialists xxi (32d ed. 1999); see also American Medical
Association, Physician Characteristics and Distribution in the U.S.
5-6 (2000) (hereinafter Physician Characteristics). A licensed
physician may practice in any specialty area, however, regardless
of certification. Physician Characteristics at 6.
Our case law indicates that a physician who “holds himself out
as a specialist” must be regarded as a specialist, even though not
board certified in that specialty. See Wall v. Stout, 310 N.C.
184, 195, 311 S.E.2d 571, 578 (1984) (where defendant held himself
out to be board-certified specialist in family practice, such
defendant “is required to bring to the care of his patients more
than the average degree of skill possessed by general
practitioners”); see also Belk v. Schweizer, 268 N.C. 50, 56, 149S.E.2d 565, 569 (1966) (physician “who holds himself out
as
specialist” must be held to higher standard than general
practitioner); Dunn v. Nundkumar, 463 N.W.2d 435, 436-37 (Mich. Ct.
App. 1990) (board certification not required to be “specialist;”
physician who limits practice to obstetrics and gynecology is
specialist in that field).
We thus hold that a doctor who is either board certified in a
specialty or who holds himself out to be a specialist or limits his
practice to a specific field of medicine is properly deemed a
“specialist” for purposes of Rule 702. Actions by the legislature
prior to passage of the amended Rule 702 support this
interpretation. See Utilities Com. v. Coach Co., 233 N.C. 119,
123, 63 S.E.2d 113, 117 (1951) (construing statute by reference to
prior version of enacted bill). Several versions of House Bill
730, the bill that ultimately resulted in the amendment to Rule
702, were submitted to the House Select Committee on Tort Reform
and the Senate Judiciary I Committee. In at least four of these
preliminary drafts of the bill, section (b), governing specialists,
separated specialists into two groups. For example, proposed
committee substitute PCS6142 provided:
(b) In a medical malpractice action as
defined in G.S. 90-21.11, a person shall not
give expert testimony on the appropriate
standard of health care as defined in G.S. 90-
21.12 unless the person is a licensed health
care provider in this State or another state
and meets the following criteria:
(1) If the party against whom or on whose
behalf the testimony is offered is a
specialist, the expert witness must specialize
in the same specialty as the party againstwhom or on whose behalf the testimony is
offered. However, if the party against whom
or on whose behalf the testimony is offered is
a specialist who is board certified or
otherwise certified by a specialty health care
group, the expert witness must be a specialist
who is similarly certified in that specialty .
. . .
This version of the bill indicates the legislature considered
specialists to be of two categories: specialists who are board
certified, and specialists who are not board certified. The final,
adopted version of section (b) does not contain this division.
Though the legislative history does not reveal the reason the
division was removed, several committee members did express
discomfort with the board certification language. See 26 April
1995 Minutes of the House Select Comm. on Tort Reform. One
committee member specifically “questioned the reasoning for having
to be board certified in order to be an expert witness.” Id.
Regardless, had the legislature wished to limit the term
“specialists” to only those physicians who are board certified, it
had the language before it to do so. By removing the more
restrictive category of “board certified” specialists from the
statute, we believe the legislature expressed its intent that the
term “specialist” include a broader category of physicians than
only those who are board certified.
(See footnote 2)
We further believe that the legislature intended the term
“specialist” to include a physician who is either board certified
in a specialty or who holds himself out as a specialist or limits
his practice to a specialty. This definition is dispositive of the
case sub judice, and it is thus unnecessary for us to outline the
contours of the term “general practitioner.” We hold that all
three of plaintiff's witnesses are specialists as that term is used
in the statute. Thus, they are all disqualified from testifying
against defendant pursuant to Rule 702(c). The trial court found
as a fact, and plaintiff does not dispute, that Dr. Paschold is
board certified in oncology, while Dr. Hammer is board certified in
emergency medicine and family practice. By virtue of their board
certifications, both doctors are specialists and thus may not
testify against defendant, a general practitioner.
Plaintiff argues that because Dr. Paschold and Dr. Hammer are
“more qualified than defendant” they should be able to testify
against him. Such interpretation of Rule 702 is completely
contrary to the intent of the statute. The language of the statute
is unambiguous: only general practitioners are allowed to testify
against general practitioners. Specialists, who are more qualified
than general practitioners, may testify only against other
specialists. This interpretation is consistent with N.C.G.S. § 90-
21.12 (1999), which requires that the plaintiff in a medical
malpractice action prove by the greater weight of the evidence that
the care of the health care provider at issue “was not in
accordance with the standards of practice among members of the samehealth care profession with similar training and experience.”
; G.S.
§ 90-21.12 (emphasis added).
As stated by another court, this rule
is designed to protect the defendant from
being compared with the higher standard of
care required from one who holds himself out
as an expert in the field.
Moore v. Foster, 292 N.W.2d 535, 538 (Mich. Ct. App. 1980), rev'd
on other grounds, 302 N.W.2d 146 (Mich. 1980); see also 19 April
1995 Minutes of the House Select Comm. on Tort Reform (sponsor of
House Bill 730 noting that purpose of amendment to N.C.R. Civ. P.
9 is to insure that malpractice actions are “reviewed by qualified
practitioners of a competence similar to” defendant of suit).
Plaintiff's third expert witness, Dr. McCaskill, is not board
certified in any specialty. However, the trial court found, and
again plaintiff does not dispute, that Dr. McCaskill has been
“work[ing] on a full-time basis since 1973 as Chief of Emergency
Medicine at Scotland Memorial Hospital and as an emergency
department physician.” Evidence was also introduced that Dr.
McCaskill works part-time at a general medical clinic in Maxton,
North Carolina. Further, plaintiff introduced evidence that Dr.
McCaskill, when reporting to the North Carolina Medical Board,
lists his primary specialty as “emergency medicine.” We thus hold
that Dr. McCaskill is a specialist in emergency medicine, in that
he holds himself out to be such a specialist and largely limits his
practice to that specialty.
Plaintiff contends Dr. McCaskill is a general practitioner
because he has similar training to defendant and his work in theemergency room is sufficiently similar to that of a general
practitioner. While it appears that Dr. McCaskill's initial
medical training was similar to defendant's, in that both completed
medical school and a one year internship, we cannot agree that
practicing in an emergency room equates to “[a]ctive clinical
practice as a general practitioner.” Rule 702(c)(1) (emphasis
added). As the trial court found, Dr. McCaskill during the course
of his practice has access to “laboratory resources, nursing
personnel, active staff physicians, [and] intensive care support,”
resources which defendant in this case, and arguably most general
practitioners, do not have. Further, emergency medicine is a
specialty recognized by the American Board of Medical Specialties,
thus indicating that the practice of emergency medicine itself is
a specialized field.
It is also questionable whether Dr. McCaskill devoted the
majority of his professional time during the year preceding the
incident in question to the “active clinical practice” of medicine
as required by Rule 702(c)(1). Clinical is defined as “based on or
pertaining to actual experience in the observation and treatment of
patients.” 2 J.E. Schmidt, Attorney's Dictionary of Medicine C-310
(1999).
On voir dire, Dr. McCaskill testified that some of his duties
as Chief of Emergency Medicine at Scotland Memorial were
administrative in nature. Plaintiff's brief to this Court
indicates that Dr. McCaskill spent only seven and one-half hours
per week dealing “hands on [with] patients” at Scotland Memorial,and an additional five hours per week admitting patients seen at
the Maxton clinic. This amounts to at most thirteen hours per
week out of what plaintiff admits is Dr. McCaskill's normal forty-
five to sixty hour work week. When asked on voir dire if he would
agree “that in the year preceding August of 1993 you did not devote
the majority of your time as a general practitioner,” Dr. McCaskill
answered, “That's true.” However, the trial court did not make
findings of fact on this issue, and our decision herein does not
rest on this point.
To reiterate, we hold the trial court properly disqualified
plaintiff's expert witnesses. As plaintiff tendered no other
expert witness to testify on the standard of care applicable to
defendant, the trial court also properly granted defendant's motion
for directed verdict. See Lowery v. Newton, 52 N.C. App. 234, 237,
239, 278 S.E.2d 566, 570, 571 (directed verdict proper if plaintiff
does not offer evidence on standard of care; standard of care in
medical malpractice action must be established by expert witness),
disc. review denied, 303 N.C. 711 (1981).
In closing, we are mindful of plaintiff's contention that
there are virtually no general practitioners still practicing who
could testify against each other, such that general practitioners
“will be free to treat their patients negligently without having to
worry about the consequences of any medical malpractice
litigation.” Without passing on the merits of this contention,
(See footnote 3)
wedo observe that the record on appeal is silent as to whether
plaintiff sought to avail herself of Rule 702(e), which provides:
Upon motion by either party, a resident judge
of the superior court in the county or
judicial district in which the action is
pending may allow expert testimony on the
appropriate standard of health care by a
witness who does not meet the requirements of
subsection (b) or (c) of this Rule, but who is
otherwise qualified as an expert witness, upon
a showing by the movant of extraordinary
circumstances and a determination by the court
that the motion should be allowed to serve the
ends of justice.
For the reasons stated herein, the trial court is
Affirmed.
Judges WYNN and HORTON concur.
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