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. Unpublished opinion
filed 3 April 2007. Petition for rehearing granted 6 June 2007,
reconsidering the case without the filing of additional briefs and
without oral argument. The following opinion supersedes and
replaces the opinion filed 3 April 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-
appellants.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Samuel G. Thompson and William H. Moss, for defendant-
appellees.
BRYANT, Judge.
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. PeterRoethling, 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 with
defendant 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. 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 plaintiffs' 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
v. Draughon, 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).
“All facts
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.
McCutchen, 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 injuriessuffered 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
action.
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. Inthe absence of such a showing, summary
judgment is properly granted.
Purvis, 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 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.”
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 (2005)). Plaintiffs' expert must also be
“familiar with the experience and training of the defendant”
doctor.
Purvis, 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.
Dr. Elliott, in his affidavit, states: 3. I am familiar with the training, education
and experience of Dr. Peter Roethlihg and have
reviewed the transcript of Dr. Roethling's
deposition wherein he discusses his training,
education and experience and his practice in
Goldsboro, North Carolina. . . .
4. I have reviewed information about the
community of Goldsboro, North Carolina, Wayne
County and Wayne Memorial Hospital for the
period 2001 and am familiar with the size of
the population, the level of care available at
the hospital, the facilities and the number of
health care providers for obstetrics. I am
familiar with the prevailing standard of care
for handling shoulder dystocia in the same or
similar community to Goldsboro, North Carolina
in 2001 by a physician with the same or
similar training, education and experience as
Dr. Roethling. . . .
Notwithstanding the foregoing, neither Dr. Elliott's affidavit nor
the record before this Court includes sufficient
facts, as opposed
to conclusions, to support Dr. Elliott's statements that he is
familiar with the standard of care applicable in communities
similar to Goldsboro, North Carolina. “Although Dr. [Elliott]
asserted that he was familiar with the applicable standard of care,
his [affidavit and deposition] testimony is devoid of support for
this assertion.”
Whitmer, 159 N.C. App. at 196, 582 S.E.2d at 672.
Plaintiffs cite to
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), in support of their argument that Dr. Elliott's
knowledge of Goldsboro, North Carolina, and the medical facilities
located there, was sufficient to qualify Dr. Elliott to testify to
the relevant standard of care. In
Steffes this Court held that Dr.
Joseph C. Donnelly, Jr., the testifying expert, supported his
assertion that he was familiar with the applicable standard of careby testifying “that he had, prior to trial, received written
information regarding the Fayetteville area from plaintiffs'
counsel and had reviewed it again prior to testifying before the
jury.”
Id. at 244, 587 S.E.2d at 914. However, in
Steffes, the
evidence before the trial court also established that Fayetteville,
North Carolina was a community similar to that in which Dr.
Donnelly practiced (Reading, Pennsylvania) and thus he could
testify to the standard of care applicable to Fayetteville, North
Carolina:
With respect to his knowledge of communities
similar to Fayetteville, he explained that he
was board-certified in general surgery (like
Dr. Steffes) and had practiced at a Level 2
hospital in Reading, Pennsylvania. Dr.
Donnelly expressed his belief that Cape Fear
was also a Level 2 hospital; Dr. McGuire
confirmed that fact. Dr. McGuire also
confirmed that the standard of care at his
Level 2 hospital in Asheville was the same as
the standard of care at Cape Fear. In
addition, Dr. Donnelly's and Dr. McGuire's
testimony together supported the conclusion
that the Reading hospital's size was
comparable to that of Cape Fear. Dr. Donnelly
also more specifically expressed his view that
Reading was similar to Fayetteville with
respect to board-certified physicians,
sophisticated lab services, x-ray departments,
anesthesia services, hospital certification,
and access to specialists.
Id.
In the instant case, there are no facts in evidence tending to
establish that Goldsboro, North Carolina is a community similar to
Phoenix, Arizona, the community in which Dr. Elliott has practiced.
The only facts in the record as to Dr. Elliott's qualifications to
give an opinion on the applicable standard of care in this caseestablish 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.
See Whitmer, 159
N.C. App. at 197, 582 S.E.2d at 673 (holding where the testifying
expert “provided no meaningful evidence to establish that Abingdon,
Virginia, was similar to Tarboro or Rocky Mount, North Carolina[,]”
the expert “failed to make the statutorily required connection to
the community in which the alleged malpractice took place or to a
similarly situated 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 also 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 anextremely desperate maneuver and was not indicated during the
delivery 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.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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