Appeal by plaintiffs from an order entered 1 March 2006 by
Judge W. Russell Duke, Jr. in Johnston County Superior Court.
Heard in the Court of Appeals 7 February 2007.
The McLeod Law Firm, P.A., by William W. Aycock, Jr., and Law
Offices of Wade E. Byrd, P.A., by Wade E. Byrd, for plaintiff-
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Samuel G. Thompson and William H. Moss, for defendant-
Ronald and Paulette Crocker (plaintiffs), as co-administrators
of the estate of Reagan Elizabeth Crocker, appeal from an order
entered 1 March 2006 granting summary judgment in favor of H. Peter
Roethling, M.D., and Wayne Women's Clinic, P.A. (defendants). We
affirm the order of the trial court.
Facts and Procedural History
Reagan Elizabeth Crocker was born to plaintiffs on 14
September 2001. Defendant Roethling, an obstetrician withdefendant Wayne Women's Clinic, was Mrs. Crocker's doctor for the
labor and delivery. During the delivery, Reagan suffered from
shoulder dystocia, a condition in which Reagan's shoulder became
lodged against the pelvis of her mother, inhibiting natural passage
through the birth canal. Reagan had to be resuscitated upon
delivery and suffered various injuries.
Reagan died on 28 September 2003 and plaintiffs filed a
medical malpractice suit against defendants on 9 September 2004.
Following depositions of both defendant Roethling and plaintiffs'
medical expert, Dr. John P. Elliott, defendants filed a Motion for
Summary Judgment and a supporting affidavit from defendant
Roethling on 1 February 2006. On 10 February 2006, plaintiffs
filed an opposing affidavit of their expert, Dr. John P. Elliott.
Defendant's Motion for Summary Judgment was heard on 13 February
2006 in Johnston County Superior Court, before the Honorable W.
Russell Duke, Jr., Judge presiding. After hearing arguments and
reviewing submissions from all counsel, the trial court excluded
all testimony of plaintiff's expert, Dr. Elliott, and granted
summary judgment in favor of defendants. Plaintiffs appeal.
Under Rule 56(c) of the North Carolina Rules of Civil
Procedure, summary judgment shall be rendered forthwith 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). The burden is upon the moving party to
show that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. McGuire
, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005)
(citing Lowe v. Bradford
, 305 N.C. 366, 369, 289 S.E.2d 363, 366
(1982)). Once the moving party meets its burden, the nonmovant, in
order to survive the summary judgment motion, must produce a
forecast of evidence demonstrating that the [nonmovant] will be
able to make out at least a prima facie
case at trial.
Collingwood v. Gen. Elec. Real Estate Equities, Inc.
, 324 N.C. 63,
66, 376 S.E.2d 425, 427 (1989) (citation omitted).
asserted by the [nonmoving] party are taken as true and their
inferences must be viewed in the light most favorable to that
party. Dobson v. Harris
, 352 N.C. 77, 83, 530 S.E.2d 829, 835
(2000) (internal citations omitted). On appeal, this Court reviews
an order granting summary judgment de novo
. McCutchen v.
, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006).
In their medical malpractice action, plaintiffs have 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[s] were proximately caused by such
breach; and (4) the damages resulting to the plaintiff[s].'
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'required burden as to the applicable standard of care is
established by N.C. Gen. Stat. § 90-21.12, which states:
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). Further, plaintiff must
establish the relevant standard of care through expert testimony.
Smith v. Whitmer
, 159 N.C. App. 192, 195, 582 S.E.2d 669, 672
(2003) (citation omitted).
This Court has recently held that:
In opposing a motion for summary judgment in a
medical malpractice case, a plaintiff must
demonstrate that his expert witness is
competent to testify as an expert witness to
establish the appropriate standard of care in
the relevant community. In other words, in
order 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 in similar communities. In
the absence of such a showing, summary
judgment is properly granted.
, 175 N.C. App. at 477-78, 624 S.E.2d at 384 (internal
citations and quotations omitted). Additionally,
[w]hen determining whether an expert is
familiar with the standard of care in the
community where the injury occurred, a courtshould 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
Billings v. Rosenstein
, 174 N.C. App. 191, 194, 619 S.E.2d 922,
924-25 (2005) (quoting 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 267-68 (2005)). Plaintiffs' expert must also be
familiar with the experience and training of the defendant
, 175 N.C. App. at 477, 624 S.E.2d at 384 (citations
and quotations omitted).
In the instant case, defendants have argued that summary
judgment was proper because plaintiffs failed to offer competent
evidence of the standard of care and of proximate cause.
Plaintiffs' expert, Dr. Elliott, states in his affidavit that he is
familiar with the prevailing standard of care for handling
shoulder dystocia in the same or similar community to Goldsboro,
North Carolina in 2001 . . . . However, the record before this
Court does not include sufficient facts tending to support Dr.
Elliott's conclusion. There are no facts in the record before this
Court indicating Dr. Elliott is familiar with the standard of care
applicable in communities similar to Goldsboro, North Carolina.
The only facts in the record as to his qualifications to give an
opinion on the applicable standard of care in this case establish
that he has practiced in much larger hospitals than that found in
Goldsboro, North Carolina. Plaintiffs have thus not shown Dr. Elliott is familiar with a
community that is similar to defendants' community in regard to
physician skill and training, facilities, equipment, funding, and
also the physical and financial environment of a particular medical
community. As Dr. Elliott is plaintiffs' only expert regarding the
applicable standard of care in this case, plaintiffs cannot meet
their burden as set forth under N.C. Gen. Stat. § 90-21.12 and the
trial court properly entered summary judgment in favor of
defendants. These assignments of error are overruled.
Plaintiffs argue the trial court erred in granting summary
judgment in favor of defendants regardless of the testimony from
their expert witness because Dr. Roethling himself established the
applicable standard of care in his deposition testimony.
Plaintiffs' medical malpractice claim rests on an allegation that
Dr. Roethling should have, but did not, use the Zavanelli maneuver
during the delivery of Reagan and this was a breach of the
applicable standard of care. In his deposition testimony, Dr.
Roethling clearly states that the Zavanelli maneuver is an
extremely desperate maneuver and was not indicated during the
deliver of Reagan. Thus, Dr. Roethling did not testify that the
Zavanelli maneuver was part of the applicable standard of care.
This assignment of error is overruled.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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