Medical Malpractice_standard of care_out-of-state expert_sufficiently qualified
A Johns Hopkins professor was competent to testify as an expert to the appropriate
standard of care of a neurologist in Wilkes County where he based his opinion on demographic
data and his familiarity with similar communities, was licensed in North Carolina and had
practiced in multiple communities in the State, and was board certified in the same specialty as
defendant. Moreover, his testimony presented issues of fact as to whether defendant breached
the standard of care, and summary judgment for defendant was reversed. N.C.G.S. § 90-21.12.
Knott, Clark & Berger, L.L.P., by Bruce W. Berger, and L.G.
Gordon, Jr., for plaintiff-appellants.
Wilson & Iseman, L.L.P., by G. Gray Wilson, Linda L. Helms,
and Maria C. Papoulias, for defendant-appellee Thomas J.
Mascenik.
WYNN, Judge.
To establish the relevant standard of care for a medical
malpractice action, an expert 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.
N.C. Gen. Stat. § 90-21.12 (2004). In this case, the doctor could
testify, as an expert witness, about the relevant standard of care,
as he established that he was familiar with the community or a
similar community. Accordingly, we reverse the trial court's
summary judgment in favor of Defendant. The facts tend to show that in February 2003, Plaintiffs
Jennie Lynn Billings and Everette Billings brought an action
against Defendants Thomas J. Mascenik, M.D., Jerome H. Rosenstein,
M.D., and Foothills Center for Women, P.A., alleging that
Defendants negligently treated Ms. Billings, resulting in her
“becoming physically debilitated and incapacitated[,]” after having
a stroke due to undiagnosed eclampsia.
(See footnote 1)
The Complaint further
alleged that Dr. Mascenik, a specialist in the filed of neurology,
treated Ms. Billings at Wilkes Regional Medical Center in Wilkes
County, North Carolina.
In support of their allegations, the Billingses presented
expert medical testimony by Dr. Peter Kaplan, M.D., a neurologist
practicing in Baltimore, Maryland and a professor at John Hopkins
University School of Medicine. Dr. Kaplan worked at Duke
University Medical Center in Durham, North Carolina for three
years, where he completed his residency and fellowship. Dr. Kaplan
had a license to practice medicine in the State of North Carolina,
but had not practiced in North Carolina in over fifteen years.
While practicing in North Carolina, Dr. Kaplan worked with an
outreach program in Fayetteville, North Carolina.
During his deposition testimony, Dr. Kaplan testified that he
was familiar with the standard of care for neurologists practicing
in the Wilkes County, North Carolina area. Dr. Kaplan said that
his familiarization with the standard of care in that area camefrom his personal experience working in North Carolina,
specifically, his work in Fayetteville, his experience with
patients that are sent from outlining areas, as well as studying
the demographic data of Wilkes County. However, Dr. Kaplan did
admit that he had never been to Wilkes Regional Medical Center and
had no personal knowledge about Wilkes Regional Medical Center.
On 17 May 2004, Dr. Mascenik filed a Motion for Summary
Judgment on the grounds that Dr. Kaplan was not qualified to
testify as an expert witness as to the relevant standard of care,
and the Billingses therefore failed to prove the standard of care.
On 16 August 2004, the trial court granted summary judgment in
favor of Dr. Mascenik, and later dismissed the claim without
prejudice against the two remaining Defendants, Jerome H.
Rosenstein, M.D. and Foothills Center for Women, P.A. Plaintiffs
appeal from the 16 August 2004 order granting summary judgment.
______________________________________
On appeal, Plaintiffs argue that the trial court erred in
granting Dr. Mascenik's Motion for Summary Judgment. We agree.
“[T]he standard of review on appeal from summary judgment is
whether there is any genuine issue of material fact and whether the
moving party is entitled to a judgment as a matter of law.”
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998). Also, the evidence presented by the
parties must be viewed in the light most favorable to the
non-movant. Id. The court should grant summary judgment when “the
pleadings, depositions, answers to interrogatories, and admissionson file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.” N.C. Gen. Stat. §
1A-1, Rule 56(c) (2004). But summary judgment is rarely
appropriate in negligence cases. Vassey v. Burch, 301 N.C. 68, 73,
269 S.E.2d 137, 140 (1980); Beaver v. Hancock, 72 N.C. App. 306,
310, 324 S.E.2d 294, 298 (1985).
“In a medical malpractice action, a plaintiff must show (1)
the applicable standard of care; (2) a breach of such standard of
care 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 (emphasis added). “Because questions
regarding the standard of care for health care professionals
ordinarily require highly specialized knowledge, the plaintiff mustestablish the relevant standard of care through expert testimony.”
Smith v. Whitmer, 159 N.C. App. 192, 195, 582 S.E.2d 669, 671-72
(2003); see Heatherly v. Indus. Health Council, 130 N.C. App. 616,
625, 504 S.E.2d 102, 108 (1998); see also N.C. Gen. Stat. § 8C-1,
Rule 702(a) (2004).
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 Indus., Inc., 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., Smith, 159 N.C. App. at 197, 582
S.E.2d at 673; Henry v. Southeastern OB-GYN Assocs., P.A., 145 N.C.
App. 208, 210, 550 S.E.2d 245, 246-47, aff'd 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).
When determining whether an expert is familiar with the
standard of care in the community where the injury occurred, “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.” Pitts v. Nash Day Hosp., Inc., 167 N.C. App. 194, 197,
605 S.E.2d 154, 156 (2004), aff'd per curiam, 359 N.C. 626, 614
S.E.2d 267 (2005). In Coffman v. Roberson, 153 N.C. App. 618, 624, 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 could testify regarding the
standard of care when the doctor testified that: (1) he practiced
in the Charlotte, North Carolina area and was licensed to practice
throughout the State; (2) he was familiar with the standard of care
of communities similar to Wilmington, North Carolina; and (3) he
based his opinion on “Internet research about the size of the
hospital, the training program, and the AHEC (Area Health Education
Center) program.”
In Pitts, this Court held that a doctor could testify
regarding the standard of care when the doctor was licenced in the
State of North Carolina and practiced in multiple communities
within the State, observed the community of Rocky Mount, North
Carolina as well as noted the size of the hospital, and testified
that the population and median income of Rocky Mount was similar to
communities in which he practiced. Pitts, 167 N.C. App. at 198,
605 S.E.2d at 156-57.
In this case, Dr. Kaplan completed two years of his residency
training and one year for a fellowship at Duke University in North
Carolina. Dr. Kaplan is licensed in North Carolina and worked in
Durham and Fayetteville. He has also given lectures in North
Carolina on eclampsia and epilepsy seizures. Although Dr. Kaplan
has never been to Wilkes Regional Medical Center and has no
personal knowledge about Wilkes Regional Medical Center, he studied
the demographic data of Wilkes County. Dr. Kaplan testified thathe was familiar with the standard of care for a neurologist in the
Wilkes County area based on his “own experience in North Carolina,
and working in Fayetteville, as well as [his] experience with the
patients being sent in from outlining areas. And it's based on
[his] learning of the demographic data of Wilkes County.”
Like in Coffman, where the doctor based his opinion of the
relevant standard of care on demographic data and his familiarity
with similar communities, Coffman, 153 N.C. App. at 624, 571 S.E.2d
at 259, Dr. Kaplan based his opinion of the standard of care of
neurologists in Wilkes County on demographic data and his
familiarity with similar communities. Also, like in Pitts and
Coffman, Dr. Kaplan is licensed in the State of North Carolina and
has practiced in multiple communities in the State. See Pitts, 167
N.C. App. at 198, 605 S.E.2d at 156; Coffman, 153 N.C. App. at 624,
571 S.E.2d at 259. Accordingly, we find that Dr. Kaplan
demonstrated that he was familiar with the standard of care in
Wilkes County. See Pitts, 167 N.C. App. at 197, 605 S.E.2d at 156.
Also, the standard of care must be established by a licenced
health care provider who specializes in the same or similar
specialty as the medical professional. N.C. Gen. Stat. § 8C-1,
Rule 702(b) (2004). Dr. Mascenik testified that he has a specialty
in general consulting neurology. Dr. Kaplan is a board certified
neurologist. Therefore, Dr. Kaplan specializes in the same
specialty as Defendant Dr. Mascenik. N.C. Gen. Stat. § 8C-1, Rule
702(b). We conclude that the Billingses' expert witness demonstrated
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 Dr. Mascenik. N.C. Gen. Stat. § 90-21.12.
Accordingly, Dr. Kaplan was competent to testify as an expert
witness to establish the appropriate standard of care of a
neurologist in Wilkes County.
Dr. Kaplan also offered testimony that raised issues of
material fact regarding whether Dr. Mascenik breached the standard
of care. See Bruce-Terminix Co., 130 N.C. App. at 733, 504 S.E.2d
at 577. Dr. Kaplan testified that he “believed [Dr. Mascenik]
breached the standard of care in not making the diagnosis of the
eclampsia.” As the evidence, taken in the light most favorable to
the Billingses, presents issues of material fact regarding Dr.
Mascenik's breach of the standard of care, summary judgment was not
appropriate. Id.
Accordingly, we reverse the trial court's grant of summary
judgment and remand this case for trial.
Reversed and remanded.
Judges CALABRIA and LEVINSON concur.
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