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1. Medical Malpractice_standard of care_contemporaneous knowledge
Summary judgment was correctly granted for defendant in a Greensboro medical malpractice case where the doctor who testified about the standard of care had never been to Greensboro, had no colleagues there, had reviewed no demographic information about Greensboro, and had relied on Internet materials dated about four and a half years after the birth in question. N.C.G.S. § 90-21.12.
2. Estates_survival of action_substitution of executrix_not automatic
A summary judgment in a medical malpractice action was remanded where the defendant died, his executrix was not substituted as a party, and there was no party in favor of whom summary judgment could be granted. The right to defend any action against the deceased survives against the personal representative under N.C.G.S. § 28A-18-1(a), but substitution is not automatic. Furthermore, although the parties urged the Court of Appeals to address the merits of a substitution motion, it must be decided in the first instance by the trial court. N.C.G.S. § 1A-1, Rule 25(a).
Greeson Law Offices, by Harold F. Greeson; and Shar, Rosen &
Warshaw, LLC, by Michael S. Warshaw, for plaintiffs-
Cranfill, Sumner & Hartzog, L.L.P., by David H. Batten, Leigh Ann Smith, and Kari R. Johnson, for defendant-appellee Bernard A. Marshall, M.D.
Yates, McLamb & Weyher, L.L.P., by Jason D. Newton, for defendant-appellee McArthur Newell, M.D.
Plaintiffs Keisha and Philip Purvis, along with their son Aeron Purvis through his Guardian ad Litem Monica Cooper Edwards, brought a medical malpractice action against defendants Bernard A. Marshall, M.D. and McArthur Newell, M.D., alleging negligence in connection with Aeron's delivery. Plaintiffs appeal from a grant of summary judgment in favor of defendants. While we hold that summary judgment was proper as to Dr. Marshall because plaintiffs failed to establish that their sole standard of care expert was qualified to testify under N.C. Gen. Stat. § 90_20.12 (2003), we must reverse as to defendant Newell. Although Dr. Newell had died during the pendency of the lawsuit, the trial court did not rule on plaintiffs' motion to substitute the executrix for the estate as a party defendant. Without the substitution of the executrix, there was no party to seek summary judgment, and there was no party on whose behalf the court could enter judgment.
A motion for summary judgment may be granted "if the
pleadings, depositions, answers to interrogatories, and admissions
on 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.R. Civ. P. 56(c).
In deciding the motion, "'all inferences of fact . . . must be
drawn against the movant and in favor of the party opposing themotion.'" Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379,
381 (1975) (quoting 6 James W. Moore et al., Moore's Federal
Practice § 56-15, at 2337 (2d ed. 1971)). The party moving for
summary judgment has the burden of establishing the lack of any
triable issue. Collingwood v. Gen. Elec. Real Estate Equities,
Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving
party meets its burden, then the non-moving party must "produce a
forecast of evidence demonstrating that the plaintiff will be able
to make out at least a prima facie case at trial." Id. We review
a trial court's grant of summary judgment de novo. Coastal Plains
Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 340-41, 601
S.E.2d 915, 920 (2004).
Q. And did you review that information when I provided it to you?
A. Yes, I did.
Q. And I happen to know, since we've met earlier today, you don't have that with you today, do you?
Q. That information was just for counsel's edification and I'm sure you recall was attached to Dr. Bootstaylor's deposition as an exhibit.
If I were to proffer to you, Dr.
Overstreet, that the information provided and
placed on the Internet by Women's Hospital
represented that hospital to be 130-bed, state
of the art facility dedicated to the treatment
of women and infants containing a level 2 and
level 3 NICU, on staff neonatologist, a
perinatologist and 24-hour anesthetic care, do
you recall those features of Women's Hospital
from what you reviewed?
A. Yeah, that's pretty much what I remember.
Q. Are you familiar with any hospitals
here in the Atlanta area that are similar in
nature to that description of Women's
Q. And what hospitals would those be?
A. I'm sure there are quite a few, but I've only practiced out of three of them, and all three would fit in that category.
. . . .
Q. Are you familiar with the standards
of care practiced in those facilities here in
Atlanta that are comparable to Women's
Hospital of Greensboro?
Q. And in reviewing this case and offering opinions in this case, are you applying the standards of care that you are familiar with that are practiced at facilities that are comparable to Women's Hospital of Greensboro?
. . . .
THE WITNESS: Yes.
Review of Dr. Overstreet's deposition reveals that he had never
been to Greensboro, had no colleagues there, had reviewed no
demographic information regarding Greensboro, and was relying
solely on the Internet materials supplied by plaintiffs' counsel as
the source of his information about Women's Hospital.
The Internet materials forwarded to Dr. Overstreet consisted of printouts of web pages from Women's Hospital's website, listing programs and services provided by the hospital and describing thetypes of specialist care available to patients. The printouts bear the date of 1 August 2003, approximately four and a half years after Aeron's birth in February 1998.
Plaintiffs argue that this testimony is sufficient to establish Dr. Overstreet's competency to give standard of care testimony under Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908 (2003), disc. review denied, 358 N.C. 233, 595 S.E.2d 148 (2004) and Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002), disc. review denied, 356 N.C. 668, 577 S.E.2d 111 (2003), in both of which cases the expert witness relied upon information obtained from the Internet. N.C. Gen. Stat. § 90-21.12, however, specifically states that the expert must be familiar with the standard of care in the same or similar community "at the time of the alleged act giving rise to the cause of action." Dr. Overstreet only had knowledge of Women's Hospital's resources _ and thus the applicable standard of care _ at a time more than four years after the alleged malpractice.
The record does not contain any indication that the resources available at Women's Hospital and the standard of care were the same in 1998 as in 2003. We cannot assume _ as we would have to do in order to deem Dr. Overstreet competent to testify _ that the resources and standard of care remained unchanged at Women's Hospital for a period of more than four years. Dr. Overstreet has, therefore, failed to meet the requirement of contemporaneousness set forth in the plain language of the statute. See Cox, 161 N.C. App. at 244, 587 S.E.2d at 913 ("Dr. Donnelly specificallytestified that he was familiar with the standard of care for board- certified physicians such as Dr. Steffes practicing in Fayetteville or a similar community in 1994 with respect to post-operative care after a Nissen fundoplication procedure." (emphasis added)).
Although summary judgment is a drastic remedy, Capital Outdoor, Inc. v. Tolson, 159 N.C. App. 55, 59, 582 S.E.2d 717, 720, disc. review denied, 357 N.C. 504, 587 S.E.2d 662 (2003), and it has long been established that "issues of negligence are rarely appropriate for summary judgment," Diorio v. Penny, 103 N.C. App. 407, 405 S.E.2d 789 (1991), aff'd, 331 N.C. 726, 417 S.E.2d 457 (1992), we are compelled to affirm summary judgment in favor of Dr. Marshall in this case. Dr. Overstreet was plaintiffs' sole standard of care expert. As he was not competent to testify regarding the standard of care under N.C. Gen. Stat. § 90_20.12 as it existed in 1998, the trial court correctly concluded that plaintiffs had failed to forecast sufficient evidence to meet one of the essential elements of their claim and that summary judgment should be granted.
Pierce v. Johnson, 154 N.C. App. 34, 40, 571 S.E.2d 661, 665
(2002). In recognition of this principle, N.C. Gen. Stat. § 28A-
18-1(a) (2003) provides that upon the death of any person, all
right to defend any action existing against the deceased "shall
survive . . . against the personal representative or collector of
As a result, when Dr. Newell died, this action did not abate, but it could not be continued against Dr. Newell or his estategenerally. The action survived only against the personal representative or collector of Dr. Newell's estate. Shaw v. Mintz, 151 N.C. App. 82, 86, 564 S.E.2d 593, 596 (Greene, J., dissenting) ("An injured party's right to proceed with a claim against a person she claims to have negligently caused her injuries is not abated by the death of the party alleged to have been negligent, as the action survives against the personal representative or collector of the decedent's estate."), adopted per curiam, 356 N.C. 603, 572 S.E.2d 782 (2002). The personal representative must then be substituted under N.C.R. Civ. P. 25(a). Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 720 (2005) (reversing grant of summary judgment against deceased defendant when the administrator of the estate, although having knowledge of the claim, had not yet been substituted as a party); In re Estate of Etheridge, 33 N.C. App. 585, 587, 235 S.E.2d 924, 926 (1977) ("If, as in the case at bar, there is a death of a party to an action, then G.S. 1A-1, Rule 25(a) . . . requires the substitution of either a personal representative or a successor in interest.").
Thus, at the present moment, the trial court's summary judgment order with respect to Dr. Newell has no effect: it cannot be effective as to Dr. Newell's estate because the executrix for that estate has never been made a party to the action, and it cannot be effective as to Dr. Newell himself because he passed away. Although the parties urge the Court to address the merits of plaintiffs' substitution motion on appeal, we cannot do so because the trial court entered no ruling on that motion. Rule 10 of the North Carolina Rules of Appellate Procedure states:
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.
N.C.R. App. P. 10(b)(1) (emphasis added). Substitution in the event of death is not automatic and, accordingly, whether or not to allow substitution must be decided in the first instance by the trial court. We have no choice but to vacate the trial court's summary judgment order with respect to "Dr. Newell (and his estate)" and remand for further proceedings.
Vacated and remanded in part, and affirmed in part.
Judges HUNTER and HUDSON concur.
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