1. Medical Malpractice--affidavit concerning standard of care--
motion to strike
The trial court did not err in a medical malpractice case by
denying plaintiff patient's motion to strike defendant doctor's
affidavit stating that he was familiar with the standards of
practice among physicians with training and experience similar to
his own and that his treatment of plaintiff conformed in all
respects to the accepted standards of practice in his community,
because: (1) there is no mention of this motion to strike being
denied in the trial court's order of 27 June 2000 or in any other
order included in the record; (2) plaintiff failed to properly
preserve this assignment for appeal, N.C. R. App. P. 10(b); and
(3) even though defendant's affidavit did not meet the scheduling
order deadline for disclosing medical experts, denying
plaintiff's motion to strike this affidavit would not have been
error since it would not have precluded defendant from testifying
on his own behalf.
2. Medical Malpractice--affidavit concerning standard of care--
medical expert required--summary judgment
The trial court did not err in a medical malpractice case by
granting defendant's motion for summary judgment under N.C.G.S. §
1A-1, Rule 56, because: (1) defendant met his initial burden by
establishing that plaintiff could not provide a medical expert to
support an essential element of his claim; and (2) plaintiff
attempted to use only his own affidavit to forecast evidence
showing medical malpractice, and the Court of Appeals has
previously held that the applicable standard of care in medical
malpractice cases must be established by other practitioners in
the particular field of practice or by other expert witnesses
equally familiar and competent to testify as to that limited
field of practice.
C. Gary Triggs, P.A., by C. Gary Triggs, for plaintiff-
appellant.
Bell, Davis, & Pitt, P.A., by Joseph T. Carruthers and Jon L.
Spargur, Jr., for defendant-appellee.
CAMPBELL, Judge.
Plaintiff appeals from an order denying his motion to strike
defendant's affidavit and granting defendant's motion for summary
judgment pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure. We affirm.
In February of 1991, defendant undertook the care and
treatment of plaintiff. Plaintiff was under defendant's care until
at least June of 1995. During that time, defendant prescribed
various medications to plaintiff to assist plaintiff with allergies
and related conditions.
On 17 June 1999, plaintiff filed a complaint in the Superior
Court of Burke County alleging that defendant committed medical
malpractice by failing to inform plaintiff of potential side
effects of medication prescribed to him by defendant. Plaintiff
also alleged:
That prior to the filing of this complaint,
the Plaintiff has retained services of a
qualified medical expert who upon information
and belief will be qualified to testify under
the rules of Civil Procedures. The expert
possesses the same or similar skills or
training as that of the Defendant who has
reviewed this information and has determined
an opinion that the course of care provided by
the Defendant does in fact deviate from the
standard of care thus constitutes malpractice
as required by the North Carolina General
Statutes.
Defendant timely filed an answer denying all allegations in the
complaint.
On 11 October 1999, defendant filed a motion to compel
discovery and for sanctions on the grounds that plaintiff had
either failed to answer discovery requests or obtain an extensionof time in which to answer the requests. After a hearing on
defendant's motion, Judge Jesse B. Caldwell (“Judge Caldwell”)
entered an order on 18 November 1999 ordering plaintiff to answer
outstanding discovery within thirty days. In addition, Judge
Caldwell entered a separate scheduling order with consent of the
parties and pursuant to Rule 26 of the Rules of Civil Procedure.
See N.C. Gen. Stat. § 1A-1, Rule 26(f1) (1999) (requiring the court
to establish an appropriate schedule for designating expert
witnesses in a medical malpractice action). This order stated, in
part, that:
1. Plaintiffs shall designate all expert
witnesses whom they expect to call at trial
and shall answer all pending North Carolina
Rules of Civil Procedure interrogatories and
requests for production on or before December
15, 1999.
. . . .
3. Defendants shall designate all expert
witnesses whom they expect to call at trial
and shall answer all pending North Carolina
Rules of Civil Procedure 26(b)(4)
interrogatories on or before March 15, 2000.
. . . .
8. Expert witnesses not designated and made
available for deposition as required by this
Order shall not be permitted to testify at
trial.
As a result of plaintiff's failure to designate any experts,
defendant filed a motion to dismiss or, in the alternative, for
sanctions based on plaintiff's failure to comply with both the 18
November 2000 order and the scheduling order. This motion came on
for hearing before Judge Jerry Cash Martin (“Judge Martin”).
Although by then plaintiff had answered outstanding discovery,which included the designation of a medical expert, Judge Martin
entered an order on 28 March 2000 striking the expert and ordering
that plaintiff be precluded from offering the testimony of this
expert.
Defendant then filed a motion for summary judgment. Attached
to this motion was defendant's own affidavit stating that he was
familiar with the standards of practice among physicians with
training and experience similar to his own and that his treatment
of plaintiff conformed in all respects to the accepted standards of
practice in his community. Plaintiff responded by filing a motion
to strike defendant's affidavit on the grounds that defendant had
not designated himself as an expert by the deadline set in Judge
Caldwell's scheduling order. In addition, plaintiff filed his own
affidavit stating that defendant failed to warn him of potentially
dangerous side effects, asserting that he had consulted with
numerous physicians about the standard of care applicable to
physicians in his community and that defendant had deviated from
this standard of care (all as more particularly outlined in the
affidavit).
Defendant's motion for summary judgment was heard by Judge
Richard D. Boner (“Judge Boner”). After hearing arguments and
having reviewed the file and the affidavits of both parties, Judge
Boner entered an order granting summary judgment in favor of
defendant on 27 June 2000. Plaintiff appeals from this order.
Plaintiff brings forth two assignments of error. For the
following reasons, we affirm the trial court's order.
[1]By his first assignment of error, plaintiff contends thatprejudicial error was committed when the trial court d
enied his
motion to strike defendant's affidavit. However, there is no
mention of this motion to strike being denied in Judge Boner's
order of 27 June 2000 nor in any other order included in the
record. Since plaintiff failed to properly preserve this
assignment for appeal, it is dismissed. See N.C. R. App. P. 10(b)
(2001). Nevertheless, we note that even though defendant's
affidavit did not meet the scheduling order deadline for disclosing
medical experts, denying plaintiff's motion to strike this
affidavit would not have been error because it would not have
precluded defendant from testifying on his own behalf. See N.C.
Gen. Stat. § 1A-1, Rule 26(b)(4) cmt. (1999) (stating that: “[T]he
subsection does not address itself to the expert whose information
was not acquired in preparation for trial but rather because he was
an actor or viewer with respect to transactions or occurrences that
are part of the subject matter of the lawsuit.”).
[2]In his second assignment of error, plaintiff contends that
the trial court erred in granting defendant's motion for summary
judgment. We disagree.
In a medical malpractice action, plaintiff must “demonstrate
by the testimony of a qualified expert that the treatment
administered by the defendant was in negligent violation of the
accepted standard of medical care in the community and that
defendant's treatment proximately caused the injury.” Ballenger v.
Crowell, 38 N.C. App. 50, 54, 247 S.E.2d 287, 291 (1978) (citation
omitted). To support his motion for summary judgment, defendanthas the initial burden of showing either that plaintiff cannot
produce evidence to support an essential element of his claim, an
essential element of plaintiff's claim does not exist, or plaintiff
cannot provide an affirmative defense that would save his claim.
See Evans v. Appert, 91 N.C. App. 362, 372 S.E.2d 94 (1988). Once
this initial burden is met, plaintiff must then produce a forecast
of evidence showing the existence of a genuine issue of material
fact with respect to the issues raised by the movant. Rorrer v.
Cooke, 313 N.C. 338, 350, 329 S.E.2d 355, 363 (1985).
In the present case, Judge Caldwell had entered both an order
compelling plaintiff to provide outstanding discovery to defendant,
and a discovery scheduling order requiring plaintiff to produce the
names of all expert witnesses he planned to call at trial by 15
December 1999. Plaintiff did not comply. Judge Martin then
entered an order striking plaintiff's subsequently designated
expert. Plaintiff did not appeal this order. Thus, defendant met
his initial burden by establishing that plaintiff could not provide
a medical expert to support an essential element of his claim.
Plaintiff attempted to use only his own affidavit to forecast
evidence showing medical malpractice. The affidavit asserted that
defendant deviated from the required standard of care by failing to
inform plaintiff of the potential side effects of prescribed
medication. Plaintiff argues that this affidavit creates a genuine
issue of material fact because there is a discrepancy between his
position and defendant's. However, this Court has held that in
medical malpractice cases the applicable “standard of care must beestablished by other practitioners in the particular field of
practice . . . or by other expert witnesses equally familiar and
competent to testify as to that limited field of practice.”
Heatherly v. Industrial Health Council, 130 N.C. App. 616, 625, 504
S.E.2d 102, 108 (1998) (citing Lowery v. Newton, 52 N.C. App. 234,
239, 278 S.E.2d 566, 571 (1981)). Plaintiff, a lay person and not
a medical expert, simply cannot establish the applicable standard
of care in this case on his own.
Accordingly, for the aforementioned reasons, the trial court
properly granted defendant's motion for summary judgment.
Affirmed.
Judges GREENE and BRYANT concur.
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