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Medical Malpractice--proximate cause--expert testimony--specialities of witnesses
In a medical malpractice action, expert testimony on causation (rather than the standard of
care) is competent as long as it is helpful to the jury and is based on information reasonably
relied upon. The trial court here erred by granting a judgment NOV for defendants in an action
arising from a back injury where defendants contended that plaintiffs' evidence of proximate
causation did not come from appropriate experts.
Knott, Clark & Berger, L.L.P., by Joe Thomas Knott, III,
Michael W. Clark and Kenneth R. Murphy, III, for plaintiffs-
appellants.
Young Moore & Henderson, P.A., by William P. Daniell; and
Ellis & Winters, LLP, by Leslie C. O'Toole, for defendants-
appellees.
SMITH, Judge.
Kenneth and Ann Weaver (hereinafter Mr. Weaver and Mrs. Weaver
respectively and collectively plaintiffs) appeal entry of judgment
notwithstanding the verdict (herein JNOV) pursuant to N.C. Gen.
Stat. § 1A-1, Rule 50(b) in favor of defendants. We reverse.
The pertinent facts may be summarized as follows: At
approximately 5:00 a.m. on 29 September 2000, Mr. Weaver was unable
to stand after sitting down in the bathroom of his home. The
symptoms were worse on the left side of his body than the right,
and he “felt numb all over.” Upon Mr. Weaver's arrival byambulance at Rex Hospital's Emergency Department (Emergency
Department), he informed nursing personnel of neck pain and
symptoms in his back and arms.
Soon thereafter, defendant, Dr. Charles Sheppa, examined Mr.
Weaver. Defendant Dr. Sheppa informed plaintiff's wife Mrs. Weaver
that he had not suffered a heart attack, but surmised that he had
some kind of a problem with a disk in his neck. Dr. Sheppa then
informed Mrs. Weaver that a MRI could be performed on Mr. Weaver's
neck, which would enable diagnosis of such problem as might exist
with a disk. However, Dr. Sheppa did not order a MRI of Mr.
Weaver's neck. Instead, Dr. Sheppa ordered lab work and
radiographic studies including a cervical spine film, prescribed
pain medication and fitted Mr. Weaver with a soft cervical collar.
After Dr. Sheppa discharged Mr. Weaver from the Emergency
Department, he still had difficulty walking and continued to
experience numbness in both arms and legs.
The following morning of 30 September 2000, Mr. Weaver
informed Mrs. Weaver that he was getting weaker and was unable to
walk unassisted. Consequently, Mrs. Weaver took Mr. Weaver back to
the Rex Hospital Emergency Department, where he came under the care
of defendant Dr. Leslie Marshall (Dr. Marshall). Mr. Weaver
reported his continuing pain and numbness to Dr. Marshall. Upon
returning from Radiology after a CT scan, Mr. Weaver continued to
experience complete numbness of his entire left side and
progressive numbness with tingling and burning of his entire right
side. After completing a physical examination, Dr. Marshall toldMrs. Weaver that Mr. Weaver was being discharged and he needed to
follow up with his regular physician on Monday. However, while
being assisted to the bathroom in a wheelchair, Mr. Weaver fell out
of the wheelchair and proceeded to urinate on himself.
At this juncture, Mr. Weaver was admitted to Rex Hospital but
did not receive a MRI until the following day, 1 October 2000. The
MRI revealed a large central herniated disk accompanied by
significant compression of Mr. Weaver's cervical spinal cord.
Findings of the MRI were discussed with the on-call neurologists,
Dr. Perkins. Dr. Michael Bowman (a neurologist) and Dr. Robert
Allen (a neurosurgeon) subsequently informed Mrs. Weaver that
emergency surgery had to be performed immediately.
Dr. Allen performed an anterior cervical discectomy and
decompression of Mr. Weaver's spinal cord. Mr. Weaver required
hospitalization and rehabilitation for approximately two months.
Mr. Weaver regained some use of his arms and legs; however, he
needed to re-learn certain everyday functions such as dressing
himself, brushing his teeth, and feeding himself using a special
spoon. Mr. Weaver also required a standing frame and, eventually,
pool therapy in order to learn how to walk again. Over time, Mr.
Weaver achieved limited mobility through use of a walker,
three-pronged walker, cane and scooter.
On 2 July 2003, plaintiffs' (Mr. and Mrs. Weaver) filed the
instant action, alleging inter alia, negligence. The action was
heard by a jury on 3 April 2006, before Judge A. Leon Stanback, Jr.
At trial, plaintiffs offered a litany of expert testimony from,among others, neurologists and emergency room physicians.
Defendants moved for directed verdict at the close of plaintiffs'
evidence and again at the close of all evidence in accordance with
N.C. Gen. Stat. § 1A-1, Rule 50 (2005). The trial court denied
both motions. On 18 April 2006, the trial court declared a
mistrial as the jury was unable to reach a unanimous verdict on the
issues submitted to them. Defendants then moved for JNOV pursuant
to N.C. Gen. Stat. § 1A-1, Rule 50(b), which provides in pertinent
part:
Not later than 10 days after entry of
judgment, a party who has moved for a directed
verdict may move to have the verdict and any
judgment entered thereon set aside and to have
judgment entered in accordance with his motion
for a directed verdict; or if a verdict was
not returned such party, within 10 days after
the jury has been discharged, may move for
judgment in accordance with his motion for a
directed verdict. In either case the motion
shall be granted if it appears that the motion
for directed verdict could properly have been
granted. (emphasis added).
On 20 July 2006, the trial court granted defendants motion for
JNOV. Plaintiffs filed timely notice of appeal.
In plaintiffs' sole argument on appeal, they contend the trial
court erred by granting JNOV in favor of defendants because
plaintiffs presented more than a scintilla of competent evidence at
trial which tended to satisfy the element of proximate cause. This
argument has merit.
A ruling on a motion for JNOV is a question of law for which
we provide de novo review. Bahl v. Talford, 138 N.C. App. 119,122, 530 S.E.2d 347, 350 (2000). When considering a motion for
JNOV,
all the evidence must be considered in the
light most favorable to the nonmoving party.
The nonmovant is given the benefit of every
reasonable inference . . . from the evidence
and all contradictions are resolved in the
nonmovant's favor. If there is more than a
scintilla of evidence supporting each element
of the nonmovant's case, the motion for . . .
judgment notwithstanding the verdict should be
denied.
Ace Chemical Corp. v. DSI Transports, Inc., 115 N.C. App. 237, 242,
446 S.E.2d 100, 103 (1994) (citations omitted).
Evidence of medical malpractice sufficient to withstand a
motion for JNOV must establish each of the following essential
elements: “'(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.'” Purvis v. Moses H. Cone
Memorial Hosp. Service Corp., 175 N.C. App. 474, 477, 624 S.E.2d
380, 383 (2006) (quoting Weatherford v. Glassman, 129 N.C. App.
618, 621, 500 S.E.2d 466, 468 (1998)). Accordingly, plaintiff must
“demonstrate by the testimony of a qualified expert that the
treatment administered by 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).
“Proximate cause is a cause which in natural and continuous
sequence, unbroken by any new and independent cause, produced the
plaintiff's injuries, and without which the injuries would not haveoccurred[.]” Hairston v. Alexander Tank & Equip. Co., 310 N.C.
227, 233, 311 S.E.2d 559, 565 (1984). Specifically, “[e]xpert
medical witnesses are called to testify on issues of causation in
disease or illness for the purpose of giving their expert opinions
as to the reasonable scientific certainty of a causal relation or
the lack thereof.” Ballenger v. Burris Industries, Inc., 66 N.C.
App. 556, 567, 311 S.E.2d 881, 887 (1984); see also Tice v. Hall,
63 N.C. App. 27, 28, 303 S.E.2d 832, 833 (1983) (“expert testimony
is required to establish . . . that such negligent violation [of
the requisite standard of care] was the proximate cause of the
injury complained of.”). Because causation is, in essence, a
factual inference to be garnered from attendant facts and
circumstances, it is a question generally best answered by a jury.
Leatherwood v. Ehlinger, 151 N.C. App. 15, 24, 564 S.E.2d 883, 889
(2002). However, expert testimony based merely on speculation and
conjecture “is not sufficiently reliable to qualify as competent
evidence on issues of medical causation.” Young v. Hickory Bus.
Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000).
In the case sub judice, we initially observe that defendants
concede that “plaintiffs did offer evidence that the failure [of
Drs. Sheppa and Marshall] to order an MRI was a deviation from the
applicable standard of care[.]” Regarding causation, defendants
also concede that plaintiffs “offered evidence that earlier surgery
would likely have improved the outcome for Mr. Weaver.” However,
defendants contend pursuant to N.C. Gen. Stat. § 8C-1, Rule 702(b)
(2005) that because plaintiffs' evidence regarding proximatecausation did not come from a neurosurgeon, but rather from experts
qualified in the specialized fields of emergency medicine and
neurology, such evidence was not competent for purposes of
plaintiffs' meeting their burden of production in order to
withstand JNOV. Defendants, though, fail to cite any legal
authority for this proposition of law and we find none.
(See footnote 1)
Nevertheless, we observe that it is indeed “undisputed that a
person is not permitted to offer expert testimony on the
appropriate standard of care unless he qualifies under the
provisions of Rule 702(b)(2) of the Rules of Evidence. Andrews v.
Carr, 135 N.C. App. 463, 469, 521 S.E.2d 269, 273 (1999)(emphasis
added). However, when the challenged expert testimony relates to
causation such admitted testimony is competent “as long as the
testimony is helpful to the jury and based sufficiently on
information reasonably relied upon under Rule 703[.]” Johnson v.
Piggly Wiggly Of Pinetops, Inc., 156 N.C. App. 42, 49, 575 S.E.2d
797, 802 (2003).
After a careful review of the record on appeal, we conclude
that plaintiffs presented more than a scintilla of evidence
supporting the proximate causation element of their medical
negligence action. For example, Dr. Bruce Dobkin, an expertqualified in neurology, testified without objection on direct
examination:
Q: Now going back to Mr. Weaver on September
29th, 2000, do you have an opinion,
satisfactory to yourself and to a reasonable
degree of medical certainty, as to whether or
not surgical intervention on that day, the
29th, would have improved Mr. Weaver's ultimate
outcome?
A: Yes
Q: And what is that opinion?
A: . . . [W]ith a high degree of certainty,
[plaintiff] would have had virtually no
neurological impairments, no trouble with
coordination, if he had been operated on []
the 29th.
In addition, Dr. Jackson Allison, an expert qualified in the field
of emergency medicine testified, also without objection as follows:
Q: Doctor, would you please explain, in as
much detail as you care to explain, why you
feel so strongly that an MRI should have been
ordered during Dr. Sheppa's watch on the 29th?
A: I'd be glad to, because the MRI was the
only thing that was going to seal the
diagnosis. . . . . He had some symptomatology,
and from my experience, that the sooner that
you intervene with somebody who has got
some[thing] pushing against the cord, the
sooner you intervene, the better the outcome
is going to be for the patient. . . . MRI
then a neurosurgical consultant, admit the
patient, go to surgery immediately. . . .
That's the answer.
Finally, Dr. Gregory Henry, also an expert qualified in emergency
medicine, testified, without objection to the following question on
direct examination:
Q: Did that decision [to not perform an MRI on
plaintiff on 29 September] cause any damage to
Mr. Kenneth Weaver?
A: I believe that had this diagnose - - been
diagnosed earlier, he would more than likely
have had a better neurologic outcome.
Accordingly, as plaintiffs offered competent evidence of proximate
causation sufficient to withstand JNOV, the trial court erred by
granting the same in favor of defendants.
Reversed.
Judges MCGEE and STEPHENS concur.
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