Medical Malpractice_standard of care_expert's knowledge not sufficient
The testimony of a medical malpractice expert witness was properly excluded where the
witness stated that he was familiar with a uniform or national standard of care, but provided no
meaningful evidence that his community was similar to the community in which the alleged
malpractice took place; offered no testimony regarding defendants' training, experience, or
resources; and there was no evidence that a national standard of care is the same standard
practiced in defendants' community. Summary judgment was properly granted for defendants
because this witness was plaintiff's only expert.
Anderson Law Firm, by Michael J. Anderson, for plaintiff
appellant.
Patterson, Dilthey, Clay & Bryson, L.L.P., by Mark E. Anderson
and Heather R. Waddell, for defendant appellees.
TIMMONS-GOODSON, Judge.
Selby Smith (“plaintiff”) appeals from orders of the trial
court excluding plaintiff's expert witness and granting summary
judgment in favor of Gilbert G. Whitmer, M.D. (“Dr. Whitmer”) and
Carolina Regional Orthopaedics (“CRO”) (collectively,
“defendants”). For the reasons stated herein, we affirm the orders
of the trial court.
The pertinent facts of the instant appeal are as follows: On
6 December 2000, plaintiff filed a complaint against defendants in
Nash County Superior Court, alleging that defendants were negligent
in their medical treatment of plaintiff, resulting in permanentinjury to plaintiff's left wrist. The complaint further alleged
that CRO was a health care facility with its principal place of
business in Nash County, and that Dr. Whitmer was an orthopedic
surgeon and partner in the practice.
In support of his complaint, plaintiff presented expert
medical testimony by Dr. Melvin Heiman (“Dr. Heiman”), an
orthopedic surgeon practicing in Abingdon, Virginia. During his
deposition testimony, Dr. Heiman verified that he was familiar with
the standard of care for orthopedic surgeons practicing in Tarboro
and Rocky Mount, North Carolina, where defendants practiced. When
further questioned, however, Dr. Heiman acknowledged that he was
not licensed to practice medicine in North Carolina, had never
visited Tarboro or Rocky Mount, and had no affiliation with any
physicians practicing in those towns. When asked to describe the
steps he had taken to familiarize himself with the relevant
standard of care, Dr. Heiman stated that he understood “about the
approximate size of the community and what goes on there. It seems
comparable to Abingdon, perhaps a little bit bigger.” Dr. Heiman
explained that his information concerning the community was based
on statements by plaintiff's counsel, but he could not remember any
information told to him, and plaintiff's counsel did not supply him
with any written materials. Dr. Heiman explained that
[a]s I understand it, [the medical community
of Tarboro and Rocky Mount is] a community not
too different from the size of Abingdon and
the hospital is somewhat the same. So, I
would say it's pretty similar to here, but
I've not personally walked in the hospital
doors and I've not personally met any
physicians there. . . .
[Defense counsel]: So, it would be fair tosay that you're not acquainted with the
medical community in Tarboro, North Carolina,
and Rocky Mount, North Carolina?
. . . .
A: That would be fair to say. I've not been
down there.
Q: Now, Doctor, I understood you to say just
a minute ago when I asked that question that
you believe that that community is similar to
Abingdon.
A: That's correct.
Q: And, therefore, you believe you can
testify about [the] standard of care. Is that
right?
A: Well, you have to understand, in the
orthopedic community, we pass certain
examinations and become qualified to be
orthopedic surgeons by adopting certain
treatment programs if you're in Nome, Alaska,
or Abingdon. It's all the same. So, it's not
like it was at the turn of the century, you
know, where medical practice was very
different in different communities. I mean,
there are some differences. We don't do open
heart surgery here in Abingdon like in
Washington, D.C. Maybe that's standard, you
know, in the bigger hospitals. But as far as
orthopedic surgeons are concerned, we're all
trained and pass qualifying exams to treat
people in similar fashions. So the standard
of care for orthopedic surgeons all over the
country is very, very similar.
Q: Are you saying there's a national
standard of care for orthopedic surgeons?
. . . .
A: Well, there is in a way. In other words,
in this day and age, orthopedic surgeons are
educated and asked to pass certain qualifying
exams such that our general way of treating
patients is pretty standard no matter where
you're practicing.
Q: Doctor, would you agree that if the
practice of medicine -- the standard care --
practice of medicine is different -- if it isdifferent -- assuming for the sake of my
question that it's different in Rocky Mount,
North Carolina, and Tarboro, North Carolina,
than it is in Abingdon, Virginia, would you
agree that you would not be able to testify
about those differences?
. . . .
A: I'm just not -- I don't know how to
answer that question. I really don't.
. . . .
A: I can comment on the standard of care as
far as a reasonably prudent orthopedic surgeon
anywhere in the country regardless of what the
medical community in Tarboro, North Carolina
might do.
On 3 June 2002, defendants filed a motion to exclude Dr.
Heiman's testimony on the grounds that he was not qualified to
testify as to the relevant standard of care. Upon consideration of
Dr. Heiman's testimony, the trial court agreed with defendants and
granted the motion to exclude his testimony. Because Dr. Heiman
was plaintiff's sole expert witness, the trial court further
granted a motion made by defendants for summary judgment. The
trial court accordingly entered orders excluding Dr. Heiman's
testimony and granting summary judgment to defendants. From the
orders of the trial court, plaintiff appeals.
_____________________________________________________
Plaintiff argues that the trial court erred in excluding Dr.
Heiman's testimony and consequently, in granting summary judgment
in favor of defendants. For the reasons stated herein, we affirm
the orders of the trial court.
“In a medical malpractice action, a plaintiff must show (1)
the applicable standard of care; (2) a breach of such standard ofcare by the defendant; (3) the injuries suffered by the plaintiff
were proximately caused by such breach; and (4) the damages
resulting to the plaintiff.” Weatherford v. Glassman, 129 N.C.
App. 618, 621, 500 S.E.2d 466, 468 (1998). Section 90-21.12 of the
North Carolina General Statutes prescribes the appropriate standard
of care in a medical malpractice action:
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.
N.C. Gen. Stat. § 90-21.12 (2001) (emphasis added). Because
questions regarding the standard of care for health care
professionals ordinarily require highly specialized knowledge, the
plaintiff must establish the relevant standard of care through
expert testimony. See Heatherly v. Industrial Health Council, 130
N.C. App. 616, 625, 504 S.E.2d 102, 108 (1998); Weatherford, 129
N.C. App. at 621, 500 S.E.2d at 468; see also N.C. Gen. Stat. § 8C-
1, Rule 702(a) (2001). Further, the standard of care must be
established by other practitioners in the particular field of
practice of the defendant health care provider or by other expert
witnesses equally familiar and competent to testify as to that
limited field of practice. See N.C. Gen. Stat. § 8C-1, Rule
702(b), (d); Heatherly, 130 N.C. App. at 625, 504 S.E.2d at 108. Although it is not necessary for the witness testifying as to
the standard of care to have actually practiced in the same
community as the defendant, see Warren v. Canal Industries, 61 N.C.
App. 211, 215-16, 300 S.E.2d 557, 560 (1983), the witness must
demonstrate that he is familiar with the standard of care in the
community where the injury occurred, or the standard of care of
similar communities. See, e.g., Henry v. Southeastern OB-GYN
Assocs., P.A., 145 N.C. App. 208, 210, 550 S.E.2d 245, 246-47,
affirmed per curiam, 354 N.C. 570, 557 S.E.2d 530 (2001); Tucker v.
Meis, 127 N.C. App. 197, 198, 487 S.E.2d 827, 829 (1997). The
“same or similar community” requirement was specifically adopted to
avoid the imposition of a national or regional standard of care for
health care providers. See Henry, 145 N.C. App. at 210, 550 S.E.2d
at 246; Page v. Hospital, 49 N.C. App. 533, 535, 272 S.E.2d 8, 10
(1980).
In Henry, the plaintiffs tendered a single expert witness, an
obstetrician practicing in South Carolina, in support of their
medical malpractice action against an obstetrician and medical
facility located in Wilmington, North Carolina. In his deposition
testimony, the expert witness failed to testify that he was
familiar with the defendants' training, experience, the standard of
care or the resources available in defendants' community. Instead,
the expert witness asserted that the standard of care was the same
throughout the United States, and that he was familiar with the
uniform standard. Concluding that plaintiffs failed to present
competent medical testimony establishing the relevant standard of
care, the trial court granted directed verdict in favor of thedefendants. On appeal, this Court rejected the plaintiffs'
argument that their expert witness was qualified to testify as to
the applicable standard of care. “[I]t is clear that the concept
of an applicable standard of care encompasses more than mere
physician skill and training; rather, it also involves the physical
and financial environment of a particular medical community.” Id.
at 211, 550 S.E.2d at 247. Because the plaintiffs failed to
establish that their expert witness was familiar with the standard
of care practiced in Wilmington or a similar community, the
testimony was properly excluded.
In the instant case, Dr. Heiman offered no testimony regarding
defendants' training, experience, or the resources available in the
defendants' medical community. Although Dr. Heiman asserted that
he was familiar with the applicable standard of care, his testimony
is devoid of support for this assertion. In preparation for his
deposition, Dr. Heiman stated that the sole information he received
or reviewed concerning the relevant standard of care in Tarboro or
Rocky Mount was verbal information from plaintiff's attorney
regarding “the approximate size of the community and what goes on
there.” Dr. Heiman could offer no further details, however,
concerning the medical community, nor could he actually remember
what plaintiff's counsel had purportedly told him. Dr. Heiman
acknowledged that he had never visited Tarboro or Rocky Mount, had
never spoken to any health care practitioners in the area, and was
“not acquainted with the medical community in Tarboro, North
Carolina, and Rocky Mount, North Carolina[.]” Instead, Dr. Heiman
stated that “the standard of care for orthopedic surgeons all overthe country is very, very similar” and that he could “comment on
the standard of care as far as a reasonably prudent orthopedic
surgeon anywhere in the country regardless of what the medical
community in Tarboro, North Carolina might do.”
Although Dr. Heiman stated that he was familiar with a uniform
or national standard of care, there was no evidence that a national
standard of care is the same standard of care practiced in
defendants' community. Dr. Heiman likewise provided no meaningful
evidence to establish that Abingdon, Virginia, was similar to
Tarboro or Rocky Mount, North Carolina. As such, Dr. Heiman
“failed to make the statutorily required connection to the
community in which the alleged malpractice took place or to a
similarly situated community.” Tucker, 127 N.C. App. at 198, 487
S.E.2d at 829; Henry, 145 N.C. App. at 210, 550 S.E.2d at 247.
Further, Dr. Heiman offered no testimony regarding defendants'
training, experience, or the resources available in the defendants'
medical community.
We conclude that plaintiff's expert witness failed to
demonstrate that he was sufficiently familiar with the standard of
care “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”
as to offer relevant and competent evidence regarding the alleged
negligence by defendants. N.C. Gen. Stat. § 90-21.12. The trial
court therefore properly excluded testimony by Dr. Heiman, and we
overrule this assignment of error. Because Dr. Heiman was
plaintiff's sole expert witness, exclusion of his testimonyrendered plaintiff unable to establish an essential element of his
claim, namely, the applicable standard of care. See Weatherford,
129 N.C. App. at 621-22, 500 S.E.2d at 468-69. As plaintiff was
unable to support an essential element of his claim, summary
judgment in favor of defendants was proper. The orders of the
trial court are hereby
Affirmed.
Judges HUDSON and STEELMAN concur.
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