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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 August 2007
JULIA L. WEBB, and husband,
No. 04 CVS 1220
ALAMANCE REGIONAL MEDICAL
CENTER, INC., KERNODLE CLINIC,
INC., MARK D. DONER, M.D., and
DOUGLAS W. PEED, M.D.,
Appeal by Plaintiffs from orders entered 22 December 2005 and
3 January 2006 by Judge J.B. Allen, Jr., in Alamance County
Superior Court. Heard in the Court of Appeals 12 October 2006.
Law Offices of Grover C. McCain, Jr., by Grover C. McCain,
Jr., for Plaintiffs-Appellants.
Sharpless & Stavola, P.A., by Joseph P. Booth, III, for
Defendant-Appellee Alamance Regional Medical Center, Inc.
Parker Poe Adams & Bernstein LLP, by John H. Beyer and
Leigh A. Kite, for Defendants-Appellees Kernodle Clinic, Inc.,
Mark D. Doner, M.D., and Douglas W. Peed, M.D.
In this medical malpractice case, Plaintiffs appeal from the
trial court's orders granting summary judgment in favor of
Defendants. For the reasons stated herein, we dismiss Plaintiffs'
appeal as it pertains to Defendant Alamance Regional Medical
Center, Inc. (ARMC)
and affirm the trial court's order granting
summary judgment in favor of Defendants Kernodle Clinic, Inc.(Kernodle Clinic), Mark D. Doner, M.D., and Douglas W. Peed, M.D.
(collectively, the Kernodle Defendants)
I. FACTS AND PROCEDURE
In 1995, Dr. Doner began serving as Plaintiff Julia Webb's
primary care physician . Since that time, Dr. Doner saw Ms. Webb at
Kernodle Clinic's facilities in Burlington, North Carolina, every
three to four weeks for multiple medical problems including chronic
obstructive pulmonary disease, hypertension, diabetes, and sleep
apnea . On 20 June 2001, Dr. Doner admitted Ms. Webb to ARMC for
shortness of breath, chest pain, cough[,] and inability to sleep.
That day, and as part of her course of treatment, ARMC's nurses
placed an intravenous line (IV) in Ms. Webb's left hand . On 21
June 2001, the IV was moved to Ms. Webb's right hand after pain
and irritation developed at the left hand site . Immediately after
injections were made through the IV in her right hand, Ms. Webb's
hand began swelling, and, later that day, Ms. Webb began
complaining of pain in the hand[.] On 22 June 2001, Ms. Webb was
discharged from ARMC.
On 25 June 2001, Ms. Webb met with Lisa Ray, a physician's
assistant at Kernodle Clinic's Acute Care Clinic, complaining of
pain in her right hand. Ms. Ray instructed Ms. Webb to apply cold
compresses to the hand and to return the following day if her pain
continued . On 26 June 2001, Ms. Webb returned to the Acute Care
Clinic and was examined by Dr. Peed . After his examination, Dr.
Peed sent Ms. Webb home and told her to return if her pain
continued. Ms. Webb met with Dr. Peed again on 28 June 2001, andDr. Peed again sent her home after an examination . On 29 June
2001, Ms. Webb returned to the Acute Care Clinic and was seen by
another of the clinic's doctors. That doctor diagnosed probable
significant deep venous thrombosis in right upper arm with possible
arterial compromise due to increasing edema and possible
compartment syndrome and admitted Ms. Webb on an emergency basis
to ARMC's intensive care unit. Thereafter, Ms. Webb was
transferred to Wake Forest University Baptist Medical Center where
a surgeon diagnosed right hand compartment syndrome and performed
a fasciotomy on Ms. Webb's hand .
By complaint filed 28 May 2004, Plaintiffs sought damages
alleging that Defendants were negligent in their treatment of Ms.
, resulting in permanent injury to Ms. Webb's right hand.
Plaintiffs further sought damages on the theory that Plaintiff
Donald Webb suffered loss of consortium as a result of Ms. Webb's
injury . Pursuant to the trial court's discovery scheduling order
entered 10 January 2005, Plaintiffs identified Dr. Robert Scott
Harris of Boston, Massachusetts, as an expert witness expected to
testify (1) as to the standards of care for [medical
professionals] in communities similar to Burlington and (2) that
had Ms. Webb received appropriate treatment in a timely manner, she
reasonably could have avoided the complications and surgery that
she later had. Dr. Harris was deposed on 21 April 2005.
On 16 November 2005, ARMC filed a motion for summary judgment
on the ground that Plaintiffs failed to produce any evidence that
its alleged negligence proximately caused Plaintiffs' injuries . On17 November 2005, the Kernodle Defendants moved for summary
judgment on the grounds that Plaintiffs failed to prove the
Kernodle Defendants proximately caused any injury or damage to
and that Plaintiffs failed to designate a medical expert
who was qualified to testify that Defendants breached the
applicable standard of care . Dr. Harris's deposition transcript
was attached to the Kernodle Defendants' motion. In response,
Plaintiffs filed a motion in opposition and included with their
motion an affidavit of Dr. Harris in which he stated, inter alia,
that (1) [h]e is familiar with the standards of care for
physicians with similar training and experience of Mark Doner and
Douglas Peed in communities similar to Burlington, North Carolina
in 2001[,] (2) [h]e is familiar with the standards of care for
physician assistants with similar training and experience of Lisa
Ray in communities similar to Burlington, North Carolina in
2001[,] (3) it is his opinion that the treatment and care of Ms.
Webb did not comply with such applicable standards of care[,] and
(4) the failure to comply with the applicable standards of care
and to appropriately diagnose and treat [Ms.] Webb's right hand
subsequent to the IV infiltration was a direct and proximate cause
of the . . . compartment syndrome[.]
On 22 December 2005, the trial court granted summary judgment
in favor of the Kernodle Defendants . On 3 January 2006, the trial
court granted summary judgment in favor of ARMC . Plaintiffs timely
filed their notice of appeal on 11 January 2006 .
Summary judgment is appropriate 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. Gen. Stat. § 1A-1, Rule 56(c)
(2005). On appeal of a trial court's allowance of a motion for
summary judgment, we consider whether, on the basis of materials
supplied to the trial court, there was a genuine issue of material
fact and whether the moving party is entitled to judgment as a
matter of law. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d
247, 249 (2003). Evidence presented by the parties is viewed in
the light most favorable to the non-movant. Id. (citing Dobson v.
Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)).
In a medical malpractice case, a plaintiff has the burden of
showing '(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
Mem'l Hosp. Serv. 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)).
Plaintiffs bring forward two assignments of error on appeal.
By their second assignment of error, Plaintiffs argue that the
trial court erred in granting summary judgment in favor of ARMC
because there was a genuine issue of material fact that ARMCproximately caused Plaintiffs' injuries. By motion filed 1 June
2006, ARMC asserts that Plaintiffs have abandoned their second
assignment of error because [P]laintiffs have failed to cite even
one case or other legal authority in support [thereof].
It is well settled that the Rules of Appellate Procedure 'are
mandatory and not directory.' State v. Hart, 361 N.C. 309, 311,
644 S.E.2d 201, 202 (2007) (quoting Reep v. Beck, 360 N.C. 34, 38,
619 S.E.2d 497, 500 (2005)). Pursuant to Rule 2 of the Rules of
Appellate Procedure, however, this Court may suspend or vary the
requirements or provisions of any of [the] rules in order [t]o
prevent manifest injustice to a party, or to expedite decision in
the public interest. N.C. R. App. P. 2. Before exercising Rule
2 to prevent a manifest injustice, [this Court] must be cognizant
of the appropriate circumstances in which the extraordinary step of
suspending the operation of the appellate rules is a viable
option. Hart, 361 N.C.
at 317, 644 S.E.2d at 206.
Rule 28 of the Rules of Appellate Procedure provides, in part,
that [a]ssignments of error not set out in the appellant's brief,
or in support of which no reason or argument is stated or authority
cited, will be taken as abandoned. N.C. R. App. P. 28(b)(6)
(emphasis added). We read this rule as setting out two scenarios
under which an appeal may be deemed abandoned, (1) assignments of
error are not set out in the appellant's brief, or (2) in support
of which no reason or argument is stated or authority cited.
Strader v. Sunstates Corp., 129 N.C. App. 562, 567, 500 S.E.2d 752,755, disc. review denied, 349 N.C. 240, 514 S.E.2d 274 (1998)
The first requires the party to direct the court to the
appropriate assignment of error in the record and the second
requires the party to cite authority or to make a legal argument
for the extension or modification of the law. Id. at 567-68, 500
S.E.2d at 755.
In their brief, Plaintiffs clearly direct our attention to
their second assignment of error, which states:
Plaintiff-Appellant assigns as error the
action of the Superior Court in granting the
motion for summary judgment of [ARMC] in that
there exists a genuine issue of material fact
that defendant's negligence was a cause of
However, Plaintiffs have submitted no authority in support of their
contention that a genuine issue of material fact exists on the
issue of proximate cause. Neither have Plaintiffs argued for the
extension or modification of existing law. Thus, Plaintiffs have
abandoned their second assignment of error. See Goodson v. P.H.
Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (It is
not the duty of this Court to supplement an appellant's brief with
legal authority or arguments not contained therein. This
assignment of error is deemed abandoned . . . .), disc. review
denied, 360 N.C. 63, 623 S.E.2d 582 (2005). In light of our
Supreme Court's decision in Hart, supra, we elect not to suspend
the rules in order to reach the merits of Plaintiffs' claim.
conclude that the circumstances herein presented do not warrant
suspension of Rule 28(b)(6). Even were we to exercise our discretion to alter or suspend
[the] rule in this case, Hart, 361 N.C. at 316, 644 S.E.2d at
205, we would conclude that there is no genuine issue of material
fact on the issue of whether ARMC proximately caused Plaintiffs'
injuries. In his deposition testimony, Dr. Harris stated that an
IV can spontaneously infiltrate or extravasate for no known reason
even when all due care has been exercised
and that he had no
criticism of the care provided by ARMC's nurses
. Dr. Harris's
affidavit does not speak to the issue of proximate cause as it
pertains to ARMC. Finally, we are wholly unconvinced that the
designation of two nurses
expected to testify that continuing to
administer vesicant drugs (tissue destroying) to an already
symptomatic IV site was not compliant with the applicable standards
of care for nurses without submission of an affidavit or
deposition creates a genuine issue of material fact . As there is
no genuine issue of material fact on the issue, suspending or
altering the rule in this case would not prevent manifest
Plaintiffs' second assignment of error is deemed
abandoned and Plaintiffs' appeal as it pertains to ARMC is
B. THE KERNODLE DEFENDANTS
By their first assignment of error, Plaintiffs argue that the
trial court erred in granting summary judgment in favor of the
Kernodle Defendants because there was a genuine issue of material
fact that (1) Dr. Harris was competent to testify as to thestandard of care and that (2) the Kernodle Defendants proximately
caused Plaintiffs' injuries. We disagree.
The applicable standard of care in a medical malpractice case
is set forth in N.C. Gen. Stat. § 90-21.12:
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
N.C. Gen. Stat. § 90-21.12 (2005)
. 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. Smith v.
, 159 N.C. App. 192, 195, 582 S.E.2d 669, 671-72 (2003).
[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 meets criteria set forth in N.C. Gen. Stat. § 8C-1, Rule
702. N.C. Gen. Stat. § 8C-1, Rule 702 (2005).
To establish the relevant standard of care, 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. Billings v. Rosenstein
, 174 N.C. App. 191,
194, 619 S.E.2d 922, 924 (2005), disc. review denied
, 360 N.C. 478,630 S.E.2d 664 (2006). In determining whether an expert has
demonstrated familiarity with the standard of care, a trial 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) (citations omitted), aff'd per curiam
359 N.C. 626, 614 S.E.2d 267 (2005). In the absence of such a
showing, summary judgment is properly granted. Purvis
, 175 N.C.
App. at 478, 624 S.E.2d at 384 (citations omitted).
Dr. Harris was the only expert identified by Plaintiffs to
testify regarding the appropriate standard of care for the Kernodle
. Assuming arguendo
that Dr. Harris qualified under Rule
702 to give standard of care testimony, Dr. Harris never testified
at his deposition that he was familiar with the standard of care in
the community where the injury occurred or in similar communities.
Dr. Harris testified that he practiced medicine only in
Massachusetts and that he had never received training or practiced
medicine in North Carolina. He did not know any physicians
practicing medicine in North Carolina. Although Dr. Harris had
visited North Carolina one time to play golf, he had never been to
Burlington and did not know where Burlington is located or in what
county Burlington sits
. Nevertheless, Plaintiffs contend that Dr. Harris demonstrated
his familiarity with the applicable standard of care in his
Q. Can you tell me what you know about the
medical community in or about Burlington,
A. The only thing I can say is that it sounds
from my little bit of research that I did
about [ARMC's] hospital, [it] sounds very
similar to Winchester Hospital in its size and
Q. Other than the fact that there's some
familiarity between the size and services of
Winchester Hospital where you practice here in
Massachusetts and [ARMC], do you have any
familiarity with the medical community in or
A. No, I don't.
. . . .
Q. And other than some similarities between
[ARMC] and Winchester Hospital, I understand
it's your testimony you don't have any other
familiarity with the medical community in
Alamance County as it existed in July 2000 to
. . . .
Q. And in terms of how Dr. Doner, Dr. Peed,
Ms. Ray, were to act within the standards of
their community, isn't it fair to say that
you're not familiar with those community
standards beyond the size and scope of the
hospital at [ARMC]?
[Plaintiff's Counsel]: Objection.
A. I think I have some familiarity with a
similar medical system, similar in size and in
number of patients treated, and so forth by
working at Winchester Hospital.
Q. When you say a similar medical system,
you're speaking of a hospital, true?
Q. And you would agree, wouldn't you, that in
terms of local standards, there may be
different standards for a hospital, its staff,
its nurses and those physicians who practice
[Plaintiff's Counsel]: Objection.
A. I think there are standards that apply to
different communities, yes. For example,
academic medical centers versus community
Q. I'm trying to understand whether or not
you would agree that the standard that you may
be familiar with at a particular hospital may
not give you familiarity with how physicians
in that community practice?
[Plaintiff's Counsel]: Objection.
A. I think that that is probably a fair
Dr. Harris's little bit of research consisted of his review of
[w]ebsite pages which he testified did not define the applicable
standard of care
. The extent of Dr. Harris's familiarity with the
community in or about Burlington is that ARMC sounds very similar
to Winchester Hospital in its size and services offered.
Winchester Hospital is located in a suburb of Boston, ten miles
north of [the city]. Dr. Harris demonstrated no familiarity with
the physician skill and training, facilities, equipment, funding,
[or] the physical and financial environment of [Burlington, North
167 N.C. App. at 197, 605 S.E.2d at 156. In
fact, Dr. Harris testified that his familiarity with Winchester
Hospital, a hospital similar in size and services offered toARMC, does not make him familiar with how physicians in ARMC's
community practice. Thus, there is no genuine issue of material
fact, based on Dr. Harris's deposition testimony, on the issue of
Dr. Harris's familiarity with the standard of care in the
community where the injury occurred, or the standard of care of
similar communities. Billings
, 174 N.C. App. at 194, 619 S.E.2d
Plaintiffs, however, contend that Dr. Harris's affidavit,
filed in response to Defendants' motions for summary judgment, by
itself creates a genuine issue of material fact regarding Dr.
Harris's familiarity with the applicable standard of care. We
disagree. In his affidavit, Dr. Harris avers only that he is
familiar with the [applicable] standards of care . . . in
communities similar to Burlington, North Carolina in 2001.
However, given Dr. Harris's deposition testimony, this affidavit
alone is insufficient to create an issue of material fact to
overcome summary judgment. Belcher v. Fleetwood Enterprises,
, 162 N.C. App. 80, 86, 590 S.E.2d 15, 19 (2004) (citing
Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc.
39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978), aff'd per curiam by
an equally divided court
, 297 N.C. 696, 256 S.E.2d 688 (1979)).
Plaintiffs' argument is without merit.
Because there is no genuine issue of material fact on the
issue of standard of care, we need not address the contention that
the Kernodle Defendants proximately caused Plaintiffs' injuries.
See Shore v. Brown
, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)(If the granting of summary judgment can be sustained on any
grounds, it should be affirmed on appeal.).
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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