NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
ROBERT V. PHILLIPS and
CECILIA R. PHILLIPS,
v. Mecklenburg County
No. 04 CVS 1182
HOSPITAL AUTHORITY, CAROLINAS
MEDICAL CENTER, A FACILITY OF
AUTHORITY, THE SANGER CLINIC,
P.A., ROBERT MARK STIEGEL, M.D.,
WILLIAM M. MASSEY, M.D., and
WILLIAM HAYMOND COOK, M.D.,
Appeal by plaintiffs from order entered 1 December 2004 by
Judge Richard D. Boner in the Superior Court in Mecklenburg County.
Heard in the Court of Appeals 12 October 2005.
Charles G. Monnett III & Associates, by Charles G. Monnett,
III, for plaintiff-appellants.
Parker, Poe, Adams and Bernstein, L.L.P., by Harvey L. Cosper,
Jr., and Richard J. Rivera, for defendant-appellees The Sanger
Clinic and Robert Mark Stiegel, M.D.
Shumaker, Loop & Kendrick, L.L.P., by Scott M. Stevenson and
John D. Kocher, for defendant-appellees Charlotte-Mecklenburg
Hospital Authority, Carolinas Medical Center, and William
Haymond Cook, M.D.
In 2004, plaintiffs filed this medical malpractice suit
against defendant doctors and medical care facilities. On 1
December 2004, the trial court granted summary judgment to
defendants and dismissed plaintiffs' claims with prejudice, for
failure to comply with Rule 9(j) of the North Carolina Rules of
Civil Procedure. Plaintiffs appeal. For the reasons discussed
below, we affirm the trial court's dismissal.
The evidence tends to show the following. On 24 January 2001,
Dr. William Massey, a cardiologist, admitted plaintiff Robert V.
Phillips to Carolinas Medical Center for evaluation of coronary
artery disease. The following day, Dr. Massey performed a cardiac
catheterization on Mr. Phillips, which revealed multiple lesions in
the coronary arteries. Dr. Robert Stiegel, a cardiothoracic
surgeon, examined and evaluated Mr. Phillips and agreed to perform
coronary artery bypass grafting (CABG) surgery. On 26 January 2001,
Dr. Stiegel and Dr. William Cook, a resident in thoracic surgery,
performed the CABG surgery.
In the months following the CABG surgery, Mr. Phillips saw Dr.
Massey for recurrent chest pain. Mr. Phillips subsequently suffered
a myocardial infarction and had a second CABG surgery in December
2001, performed by a different surgeon at a different hospital.
Plaintiffs allege that Drs. Stiegel and Cook bypassed the wrong
arteries: that they failed to bypass certain coronary arteries withlesions that either should have been or were intended to be bypassed
and that they instead bypassed other healthy coronary arteries that
should not have been and were not intended to be bypassed.
Plaintiffs further allege that the second CABG surgery was necessary
to correct these errors.
Prior to trial, pursuant to Rule 9(j) of the North Carolina
Rules of Civil Procedure, plaintiffs had Dr. Bahij Khuri, an
interventional cardiologist, review the medical care that Drs.
Stiegel and Cook provided to Mr. Phillips. Dr. Khuri was willing
to testify that the medical care did not comply with the applicable
standard of care.
Plaintiffs argue that the trial court erroneously granted
defendants' motions for summary judgment when it concluded that they
had failed to comply with Rule 9(j) of the North Carolina Rules of
Civil Procedure. We disagree.
The trial court may grant summary judgment only where there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Barbour v. Little
, 37 N.C. App.
686, 692, 247 S.E.2d 252, 256, disc. review denied,
295 N.C. 733,
248 S.E.2d 862 (1978). The evidence must be viewed in the light
most favorable to the plaintiff. Bruce-Terminix Co. v. Zurich Ins.
130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). On appeal,we review the grant of summary judgment de novo
. Virginia Elec. &
Power Co. v. Tillett
, 80 N.C. App. 383, 385, 343 S.E.2d 188, 191
(1986). Similarly, a plaintiff's compliance with Rule 9(j)
requirements clearly presents a question of law . . . [that] is
reviewable by this Court de novo
. Phillips v. A Triangle Women's
Health Clinic, Inc.,
155 N.C. App. 372, 376, 573 S.E.2d 600, 603
(2002) (citations omitted), aff'd per curiam,
357 N.C. 576, 597
S.E.2d 669 (2003).
Rule 9(j) states, in pertinent part, that:
[a]ny complaint alleging medical malpractice by
a health care provider as defined in G.S.
90-21.11 in failing to comply with the
applicable standard of care under G.S. 90-21.12
shall be dismissed unless:
(1) The pleading specifically asserts that the
medical care has been reviewed by a person who
is reasonably expected to qualify as an expert
witness under Rule 702 of the Rules of Evidence
and who is willing to testify that the medical
care did not comply with the applicable
standard of care.
N.C. Gen. Stat. § 1A-1, Rule 9(j) (2005). Plaintiffs' complaint
includes a section entitled Rule 9(j) Certification, which states
[t]he medical care received by Plaintiff Robert
V. Phillips and complained of herein and the
medical records arising therefrom, have been
reviewed by a person who is reasonably expected
to qualify as an expert under Rule 702 . . .
and who is willing to testify that the medicalcare did not comply with the applicable
standard of care.
Thus, plaintiffs' complaint complies with the pleading requirements
of Rule 9(j)(1).
Although the statute does not specify that Rule 9(j) has a
substantive requirement, plaintiff concedes that there is a
substantive requirement. This Court has interpreted Rule 9(j) as
requiring not merely that plaintiffs assert that the medical care
was reviewed by a person reasonably expected to qualify as an expert
witness, but that the plaintiffs must have in fact reasonably
the witness to qualify as an expert under Rule 702 of the
North Carolina Rules of Evidence. See Allen v. Carolina Permanente
Med. Group, P.A.,
139 N.C. App. 342, 533 S.E.2d 812 (2000); Trapp
129 N.C. App. 237, 497 S.E.2d 708 (1998)
. Rule 702
states, in pertinent part, that:
(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
(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
N.C. Gen. Stat. § 8C-1, Rule 702(b)(1) (2005). However, the
question under Rule 9(j) is not whether the proposed expert would
qualify under Rule 702, but rather,
whether it was reasonably expected
witness would qualify under Rule 702. In other
words, were the facts and circumstances known
or those which should have been known to the
pleader such as to cause a reasonable person to
believe that the witness would qualify as an
expert under Rule 702.
, 129 N.C. App. at 241, 497 S.E.2d at 711 (emphasis added)
case dealt with a procedure called a central venous
access, which involves the insertion of a plastic tube into a
patient's vein. Id.
at 238, 497 S.E.2d at 709. The Trapp
show that the defendant, an anesthesiologist, attempted central
venous access into Mrs. Trapp's internal jugular vein on the right
side of her neck and was unsuccessful in that location[.] . . .
[Then,] a hemotoma [sic] developed on Mrs. Trapp's neck and led to
further complications which resulted in her death. Id.
witness whom the plaintiffs sought to qualify as a medical expert
testified that although he was not board certified in eitheranesthesia or critical care and had no other anesthesia training,
he was an emergency medicine specialist, had served as the
physician involved in inserting a central venous line in the last
year, and that emergency medicine specialists performed central
venous accesses. Id.
, the defendant argued the witness did not satisfy the
requirements of Rule 702(b)(1)(b) because the 'procedure that is the
subject of the complaint' is a central venous access for the
specific purpose of plasmapheresis and the witness admitted that
he did not know the standard of care for a central venous access for
the specific purpose of plasmapheresis. Id.
at 240, 497 S.E.2d at
710. However, although the central venous access was conducted in
preparation for a plasmapheresis procedure, the witness testified
that a central venous access is a 'procedure' and . . . it 'is not
driven by what is the treatment later on. The procedure is the
at 238, 497 S.E.2d at 709.
Accordingly, this Court
held that a reasonable person could believe the witness would
qualify under Rule 702(b)(1)(b), which specifically requires that
the expert witness must . . . [s]pecialize 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. N.C.G.S. § 8C-1, Rule 702(b)(1)(b)(2005); Trapp
, 129 N.C. App. at 241, 497 S.E.2d at 711. Trapp
however, is distinguishable from the instant case.
Here, Dr. Bahij Khuri, a board certified interventional
cardiologist, reviewed the medical care received by Mr. Phillips and
was willing to testify that the care provided did not comply with
the applicable standard of care. Plaintiffs readily concede that
Dr. Khuri is not a cardiothoracic surgeon, but argue that Dr. Khuri
is nevertheless qualified to state opinions regarding deviation from
the standards of practice for performance of CABG, because the
alleged malpractice involved the incorrect identification of healthy
and unhealthy arteries, not surgical procedure. In his affidavit,
Dr. Khuri stated the following:
3. As an interventional cardiologist I
routinely perform invasive procedures designed
to restore normal blood flow to the heart in
patients like Mr. Phillips in January 2001.
The restoration of normal blood flow to the
heart in a patient like Mr. Phillips can be
accomplished surgically (coronary artery by-
pass grafting or CABG), invasively
(percutaneous transluminal coronary angioplasty
or PTCA), or medically (thrombolytic
therapy). Both CABG and PTCA are procedures
designed to restore normal blood flow to the
4. . . . I believe that I am qualified to
serve as an expert witness under the provisions
of Rule 702 . . . because this case involves a
procedure to restore normal blood flow to the
heart . . . .
5. I believe I am qualified to state opinions
with regard to deviations from the acceptable
standards of practice for performance of [CABG]
by the cardiothoracic surgeons in this case
because they relate to the proper
identification of coronary arteries and the
proper location of clinically significant
lesions in the coronary arteries. When either
CABG or PTCA procedures are utilized to restore
normal blood flow to the heart, the standard of
care requires proper identification of the
coronary arteries and the location of any
clinically significant lesions in those
arteries. I frequently consult with
cardiothoracic surgeons regarding the
identification of clinically significant
lesions after I have done the catheterization
and in anticipation of CABG surgery in that
. Furthermore, I am frequently
called upon to evaluate post-CABG patients who
have complications such as continued symptoms
of chest pain due to incomplete
revascularization like Mr. Phillips.
(Emphasis added). The trial court concluded that because Dr. Khuri
is not a cardiothoracic surgeon and had not performed CABG surgery,
he would not qualify as an expert witness under Rule 702. Most
importantly to this matter, however, is that the trial court
concluded, and we agree, that Dr. Khuri could not have reasonably
been expected to qualify as an expert witness pursuant to Rule 702.
The facts of the instant case would not lead a reasonable
person to believe that Dr. Khuri would qualify as an expert under
Rule 702. Dr. Khuri was not a cardiothoracic surgeon; rather, he
was a board certified interventional cardiologist. There is no
evidence of record that an interventional cardiologist operateswithin a similar speciality as a cardiothoracic surgeon.
Conversely, Dr. Cook's affidavit reveals, Cardiologists do not
perform any surgical procedures, including coronary artery bypass,
valve replacement, or aneurism repair. Cardiologists are not
qualified to perform surgical procedures. Dr. Khuri also
specifically admits he has never performed a coronary artery bypass
grafting. Moreover, although plaintiffs argue that Dr. Khuri was
qualified to state medical opinions because the alleged malpractice
involved the incorrect identification of arteries as opposed to
surgical procedure, the pleadings reveal that the procedure at
issue was not the identification of arteries but rather the coronary
artery bypass grafting. In the pleadings, plaintiffs specifically
alleged, in pertinent part:
35. In performing or supervising the CABG
surgery on Mr. Phillips, Drs. Stiegel and Cook
inserted a graft proximal to, rather than
distal to, at least one lesion that should have
been or was intended to be bypassed.
36. In performing or supervising the CABG
surgery on Mr. Phillips, Drs. Steigel and Cook
inserted a graft that, although distal to the
lesion was improperly placed resulting in
improper blood flow.
These allegations would lead a reasonable person to believe that Dr.
Khuri, who was not a specialist in a similar specialty which
includes within its speciality the performance of [coronary artery
bypass grafting,] the procedure that is the subject of thecomplaint[,] and who has no prior experience treating similar
patients [with coronary artery bypass grafting], would not qualify
as an expert under Rule 702. See
N.C.G.S. § 8C-1, Rule 702(b)(1)(b)
Plaintiffs also argue the trial court's grant of summary
judgment in favor of defendants was improper because they should
have been allowed to file a motion pursuant to Rule 702(e) to show
that Dr. Khuri was qualified to testify as an expert under these
circumstances. Under Rule 702(e), the trial court may allow expert
testimony on the appropriate standard of health care by an otherwise
qualified expert upon a showing . . . of extraordinary
circumstances and a determination by the court that the motion
should be allowed to serve the ends of justice. N.C. Gen. Stat.
§ 8C-1, Rule 702(e) (2005). However, Rule 9(j)(2) requires
plaintiffs to specifically assert that the medical care has been
reviewed by a person that the [plaintiffs] will seek to have
qualified as an expert witness by motion under Rule 702(e) . . . .
N.C. Gen. Stat. § 1A-1, Rule 9(j)(2) (2005). Here, plaintiffs did
not specifically assert in their complaint that they were seeking
to have this witness qualified as an expert by motion under Rule
702(e). This argument is without merit.
Judge HUDSON concurs in the result only.
Judge CALABRIA concurs.
Report per Rule 30(e).
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