Date: 05-21-2009

Case Style: Ronald Crocker v. H. Peter Roethling, M.D. and Wayne Women's Clinic, P.A.

Case Number: 374PA07

Judge: Hudson

Court: Supreme Court of North Carolina on appeal from the Superior Court for Johnston County

Plaintiff's Attorney: The McLeod Law Firm, P.A., by Joe McLeod; and Law Wade Byrd, Offices of Wade E. Byrd, P.A., Fayetteville, North Carolina, for plaintiff-appellants.

Patterson Harkavy LLP, by Burton Craige, for North Carolina Academy of Trial Lawyers, amicus curiae.

Defendant's Attorney: Sam Thompson and Bill Moss, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., for defendant-appellees.

Description: In this medical malpractice case, we consider whether the trial court properly excluded plaintiffs’ expert and granted summary judgment for defendants when the expert’s opinions of his familiarity with the community at issue and of defendants’ breach of the standard of care satisfy the requirements of N.C.G.S. § 90-21.12. We conclude that here, the expert’s deposition and affidavit demonstrate “sufficient familiarity” with the “same or similar” community and that the trial court erred by excluding his testimony. Because the expert’s evidence also provides opinions that create a genuine issue as to the material fact of defendants’ breach of the standard of care, summary judgment should not have been granted.

Plaintiffs allege that their daughter, Reagan Elizabeth Crocker, was born to them in September 2001 in Goldsboro and died on 28 September 2003 due to severe, permanent birth-related injuries. Defendant H. Peter Roethling, M.D., an obstetrician with defendant Wayne Women’s Clinic, delivered Reagan on 14 September 2001. During delivery, Reagan’s shoulder became lodged against her mother’s pelvis, preventing natural passage through the birth canal. This condition, called shoulder dystocia, delayed Reagan’s birth and allegedly caused serious injuries.

Plaintiffs contend that Dr. Roethling was negligent in failing to perform various maneuvers, including the Zavanelli maneuver, to dislodge Reagan’s shoulder and hasten her delivery.

On 9 September 2004, plaintiffs, acting as coadministrators of Reagan’s estate, filed a medical malpractice action in the superior court in Johnston County against Dr. Roethling, Wayne Women’s Clinic, and other defendants later dismissed from the action. Plaintiffs sought damages for wrongful death, based on the alleged negligence of Dr. Roethling in delivering Reagan. On 1 March 2006, the trial court entered summary judgment for defendants after concluding that the testimony of plaintiffs’ sole expert witness should be excluded.

Plaintiffs appealed to the Court of Appeals, which filed a unanimous, unpublished opinion on 3 April 2007 affirming the trial court. The Court of Appeals granted a petition for rehearing on 6 June 2007 and reconsidered the case without additional briefs and without oral argument. The Court of Appeals filed a unanimous, unpublished superseding opinion on 3 July 2007, again affirming the trial court. That opinion stated that “the record before [the Court of Appeals] does not include sufficient facts tending to support [the expert’s]” assertion in his 7 February 2006 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.’” Crocker v. Roethling, 184 N.C. App. 377, 646 S.E.2d 442, 2007 WL 1928681, at *3 (2007) (unpublished). On 8 November 2007, this Court allowed plaintiffs’ petition for discretionary review. As discussed below, we conclude that summary judgment for defendants was not proper on this record. We reverse and remand.

The standard for granting summary judgment is well established. Summary judgment is proper when “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.G.S. § 1A-1, Rule 56(c) (2007). The trial court must consider the evidence in the light most favorable to the non-moving party. E.g., McCutchen v. McCutchen, 360 N.C. 280, 286, 624 S.E.2d 620, 625 (2006) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)).

“One of the essential elements of a claim for medical negligence is that the defendant breached the applicable standard of medical care owed to the plaintiff.” Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 751 (1999). To meet their burden of proving the applicable standard of care, plaintiffs must satisfy the requirements of N.C.G.S. § 90-21.12, which states in full:

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.G.S. § 90-21.12 (2007) (emphasis added). Plaintiffs must establish the relevant standard of care through expert testimony. Ballance v. Wentz, 286 N.C. 294, 302, 210 S.E.2d 390, 395 (1974) (citation omitted); Smith v. Whitmer, 159 N.C. App. 192, 195, 582 S.E.2d 669, 671-72 (2003) (citations omitted). When plaintiffs have introduced evidence from an expert stating that the defendant doctor did not meet the accepted medical standard, “[t]he evidence forecast by the plaintiffs establishes a genuine issue of material fact as to whether the defendant doctor breached the applicable standard of care and thereby proximately caused the plaintiffs’ injuries.” Mozingo v. Pitt Cty. Mem’l Hosp., Inc., 331 N.C. 182, 191, 415 S.E.2d 341, 346 (1992) (citing Turner v. Duke Univ., 325 N.C. 152, 162, 381 S.E.2d 706, 712 (1989)). This issue is ordinarily a question for the jury, and in such case, it is error for the trial court to enter summary judgment for the defendant. Id.; see also Rouse v. Pitt Cty. Mem’l. Hosp., Inc., 343 N.C. 186, 197, 470 S.E.2d 44, 50 (1996).

Here, the trial court appears to have granted summary judgment to defendants on grounds that plaintiffs’ only proposed medical expert, John P. Elliott, M.D., was insufficiently familiar with Goldsboro and was applying a national standard of care, thus requiring exclusion of his evidence. Having excluded the doctor from testifying, the court granted summary judgment for defendants. Ordinarily, we review the decision to exclude or admit expert testimony for an abuse of discretion. DOT v. Haywood Cty,, 360 N.C. 349, 351, 626 S.E.2d 645, 646 (2006); see also N.C.G.S. § 8C-1, Rule 104 (2007). “[T]his Court has uniformly held that the competency of a witness to testify as an expert is a question primarily addressed to the court, and his discretion is ordinarily conclusive, that is, unless there be no evidence to support the finding, or unless the judge abuse his discretion.” State v. Moore, 245 N.C. 158, 164, 95 S.E.2d 548, 552 (1956). However, here, the pertinent inquiry is whether the trial court properly applied the statutory requirements of N.C.G.S. § 90-21.12 and the Rules of Evidence in considering Dr. Elliott’s opinions at this stage of the proceedings. If we determine that the exclusion was erroneous, we then consider whether this testimony sufficiently forecast a genuine issue of material fact under Mozingo.

We note that the ruling at issue here occurred at the hearing solely calendared for the motion for summary judgment, not for a motion to exclude testimony. In fact, our review of the record reveals no motion to exclude, written or oral, nor was any motion to exclude listed on the calendar notice. Moreover, the reasons given in the transcript for the ruling (none appear in the order) include: that Dr. Elliott’s information about Goldsboro showed that its hospital was different from the one in Phoenix where he practices; that all of the hospitals where Dr. Elliott has practiced are larger than the one in Goldsboro; and that “the Court finds that the [witness] was testifying . . . to a national standard of care and will exclude the evidence of that expert.” We conclude that this ruling and the order based thereupon result from a misapplication of Rule 702 and N.C.G.S. § 90-21.12.

The trial court must decide the preliminary question of the admissibility of expert testimony under the three-step approach adopted in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995). The trial court thereunder must assess: 1) the reliability of the expert’s methodology, 2) the qualifications of the proposed expert, and 3) the relevance of the expert’s testimony. Id. at 527-29, 461 S.E.2d at 639-41). Applying Goode in the context of N.C.G.S. § 90-21.12, we note that North Carolina law has established a “workable” and “flexible system for assessing” the admissibility of expert testimony under Rule 702. Id. at 469, 597 S.E.2d at 692. Here, the first two steps of the Goode analysis are not at issue; there is no controversial or novel “proffered scientific or technical method of proof” which defendants challenge as unreliable, nor have they questioned Dr. Elliott’s qualifications as a medical expert. 358 N.C. at 460-61, 597 S.E.2d at 687-88. Instead, defendants in essence dispute the relevance of Dr. Elliott’s testimony, arguing that his testimony was not admissible because it did not address the relevant standard of care: that of Goldsboro or similar communities.

Dr. Elliott, plaintiffs’ sole expert witness, practiced obstetrics in Phoenix, Arizona. In the hearing on the motion for summary judgment, counsel for defendants indicated he did not dispute Dr. Elliott’s other qualifications, but that “the key issue” was whether he had “‘sufficient familiarity’ with the standards of practice” in Goldsboro or similar communities. We note Dr. Elliott gave this testimony at a discovery deposition, conducted by the defense attorney, and not in response to direct examination by plaintiffs, who would later have the burden of tendering the qualifications of the expert. At such a discovery deposition, plaintiffs’ attorney had no obligation to expand upon or clarify any of Dr. Elliott’s qualifications or opinions; rather, the deposition was the defendants’ opportunity to learn what they could about the other side’s expert and his opinions. Even so, at his deposition on 30 August 2005, Dr. Elliott was able to accurately describe a number of features of the community at issue here, including the location and population of Goldsboro, and the number of obstetricians privileged at Wayne Memorial Hospital. He did testify that he believed a physician in either Phoenix or Goldsboro would have the “same” knowledge, but also correctly described the applicable standard of care as “that of a reasonably trained physician practicing in the same or similar circumstances.”

On 10 February 2006, prior to the hearing on defendants’ motion for summary judgment, plaintiffs filed Dr. Elliott’s affidavit, which stated, in pertinent part:

3. I am familiar with the training, education and experience of Dr. Peter Roethling 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. The applicable standard in Goldsboro in 2001 for a board certified obstetrician such as Dr. Roethling who is also a clinical teacher required, among other things, that when progress is not made in delivery of a shoulder dystocia using standard maneuvers, the Zavenelli [sic] maneuver should be used.

The affidavit was discussed by plaintiffs’ counsel at the argument on defendants’ motion for summary judgment on 13 February 2006.

As noted above, the record does not reflect a written or oral motion to exclude the testimony of Dr. Elliott, but nevertheless defense counsel argued to the trial court, at the Court of Appeals, and again here that the doctor’s testimony should be excluded because it was either based on a national standard or failed to “demonstrate that [Dr. Elliott] really [was] familiar with the standard of practice for similar communities,” citing Purvis v. Moses H. Cone Mem’l Hosp. Serv. Corp., 175 N.C. App. 474, 624 S.E.2d 380 (2006), Smith v. Whitmer, 159 N.C. App. 192, 582 S.E.2d 669, and Henry v. Se. OB-GYN Assocs., 145 N.C. App. 208, 550 S.E.2d 245, aff’d, 354 N.C. 570, 557 S.E.2d 530 (2001). On the other hand, plaintiffs’ counsel has argued at every level that Dr. Elliott’s affidavit, particularly paragraphs three and four quoted above, should put the issue of familiarity with the same or similar community “to rest” if viewed according to the appropriate legal standard.

We agree with plaintiffs that the cases cited by defendants are distinguishable. In Purvis, the Court of Appeals held that an expert’s testimony was properly excluded when his only stated knowledge of the community pertained to a period more than four years after the alleged injury occurred. 175 N.C. App. at 480-81, 624 S.E.2d at 385. Here, in contrast, Dr. Elliott specifically referred to the standard in effect at the time of the alleged negligence. In Smith, the expert “offered no testimony regarding defendants’ training, experience, or the resources available in the defendants’ medical community.” 159 N.C. App. at 196, 582 S.E.2d at 672. The expert further testified that “the sole information he received or reviewed concerning the relevant standard of care in [the relevant community] was verbal information from plaintiff’s attorney regarding ‘the approximate size of the community and what goes on there’” and that he could not even recall what he had been told. Id. at 196-97, 582 S.E.2d at 672. He then stated that, in any event, there was a national standard of care. Id. Henry involved an expert who testified that he knew nothing about the community at issue, but gave an opinion that the standard of care for the particular procedure was the same across the nation. 145 N.C. App. at 210, 550 S.E.2d at 246-47. In none of these cases did the plaintiffs have a qualified expert like Dr. Elliott produce an affidavit clearly stating that he was familiar with the training and experience of the defendant physician and with the specific standard of care in the relevant community at the time of the alleged injury.

We conclude that, unlike the experts in Purvis, Smith, and Henry, Dr. Elliott demonstrated specific familiarity with and expressed unequivocal opinions regarding the standard of care in Goldsboro and similar communities, as well as in Dr. Roethling’s own practice. While Dr. Elliott did state in his deposition that he expected “a physician in Phoenix [Arizona] to have the same knowledge as Dr. Roethling irrespective of their location,” his subsequent affidavit expanded and clarified his familiarity with Dr. Roethling’s obstetrical practice and with Goldsboro and Wayne County. The trial court may not automatically disqualify an expert witness simply because the witness indicates reliance on a national standard of care during a discovery deposition. Where, as here, the basis of the opinion and the expert’s familiarity with the same or a similar community is undeveloped, the proponent must be given an opportunity to establish the witness’s competency. However, the proponent does not have the duty to do so at the discovery deposition.

Dr. Elliott’s sworn affidavit states that he had reviewed information about obstetrical care in Goldsboro and Wayne County and about Dr. Roethling’s background and practice. Dr. Elliott also stated that he was familiar with the standard of care for handling shoulder dystocia in the community in 2001. Any questions as to whether Dr. Elliott had actually reviewed such information or whether he was truthful in stating that he was familiar with the relevant standard of care go to the credibility of the witness. Nothing in our statutes or case law suggests that a prospective medical expert must produce documentation of his research or attempt to explain to the trial judge how his knowledge about the community enabled him to ascertain the relevant standard of care. Nor do they prescribe any particular method by which a medical doctor must become “familiar” with a given community. Many methods are possible, and our jurisprudence indicates our desire to preserve flexibility in such proceedings. The witness must show only that “other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.C.G.S. § 8C-1, Rule 702(a).

Further, the dissent suggests that Dr. Elliott was required to explicate the basis for his opinion of the applicable standard of care before it could be admissible. Evidence Rule 705, “Disclosure of facts or data underlying expert opinion,” provides in pertinent part:

The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion.

N.C.G.S. § 8C-1, Rule 705 (2007). Here, defense counsel did not request the underlying basis for the opinion at the deposition. It appears that defense counsel began to ask about the basis, but then withdrew the question. After Dr. Elliott gave his opinion on the standard of care, defense counsel stated the following:

“Q: And what is it that allows you – well, strike that.” As such, Dr. Elliott was not required, under our Rules, to state the basis for his opinion prior to the court’s ruling on its admission.

As noted in the dissent, matters of credibility are for the jury, not for the trial court. Queen City Coach Co. v. Lee, 218 N.C. 320, 323, 11 S.E.2d 341, 343 (1940). We have cautioned trial courts against “asserting sweeping pre-trial ‘gatekeeping’ authority . . . [which] may unnecessarily encroach upon the constitutionally-mandated function of the jury to decide issues of fact and to assess the weight of the evidence.” Howerton, 358 N.C. at 468, 597 S.E.2d at 692 (citing, inter alia, N.C. Const. art I, § 25 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993)).

Here, the trial court exceeded its limited function under Rule 104 by making a credibility determination about Dr. Elliott’s testimony. Although the trial court’s summary judgment order states that Dr. Elliott’s affidavit was among the items reviewed, it appears from the transcript that the trial court did not properly consider the affidavit’s content according to the requirements of N.C.G.S. § 90-21.12 and our Rules of Evidence, as interpreted by this Court. In the transcript of the summary judgment hearing, the judge refers only to Dr. Elliott’s deposition and never acknowledges the affidavit’s substantive content. Specifically, he referred to parts of Dr. Elliott’s deposition that led him to conclude that Dr. Elliott would be “testifying in affect [sic] to a national standard of care.” In the affidavit, Dr. Elliott states that he has reviewed information about Goldsboro and the level of hospital care there.

Dr. Elliott’s affidavit further states 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 by a physician with the same or similar training, education and experience as Dr. Roethling.” Dr. Elliott’s affidavit and deposition comply with the requirements of N.C.G.S. § 90-21.12 and demonstrate “sufficient familiarity” with the community at issue, rendering Dr. Elliott competent to testify on the relevant standard of care pursuant to Rule 702.

In his affidavit, Dr. Elliott stated: “Based on my review of the labor and delivery records . . . for Reagan Crocker, it is my opinion within a reasonable degree of medical certainty that Dr. Roethling breached the standard of care which caused Reagan to suffer hypoxic injury that ultimately led to her death.” This statement, when considered in the light most favorable to plaintiffs, creates a genuine issue of material fact for the trier of fact under N.C.G.S. § 90-21.12 and Rule 56 regarding whether defendants breached the applicable standard of care, resulting in the injury to and death of Reagan Crocker.

Summary judgment is not proper when a medical expert gives evidence tending to show that the defendant failed to meet the standard of care in the relevant community. Mozingo, 331 N.C. at 191, 415 S.E.2d at 346. Any question as to the credibility of Dr. Elliott’s testimony on the standard of care is a matter for the jury. See N.C.G.S. § 90-21.12 (“[T]he 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 . . . .”) The trial court thus erred in granting summary judgment for defendants.

In sum, we hold that in a medical malpractice case: 1) gaps in the testimony of the plaintiff’s expert during the defendant’s discovery deposition may not properly form the basis of summary judgment for the defendant; 2) the trial court should consider affidavits submitted by the plaintiff or his witnesses in opposition to the defendant’s motion for summary judgment in accordance with Rule 56; 3) to determine whether the plaintiff has presented evidence admissible to meet his burden under N.C.G.S. § 90-21.12 and Rule 702, the trial court should apply the test set forth in State v. Goode; 4) to determine whether an expert’s testimony satisfies the third prong under Goode of familiarity with the “same or similar community” standard of care, the trial court should apply well-established principles of determining relevancy under Evidence Rules 401 and 701; and, 5) once the plaintiff raises a genuine issue as to whether the defendant’s conduct breached the relevant standard of care, the resolution of that issue is for the trier of fact, usually the jury, per N.C.G.S. § 90-21.12. We reverse and remand to the Court of Appeals for further remand to the trial court for further proceedings not inconsistent with this opinion.

* * *

See: http://www.aoc.state.nc.us/www/public/sc/opinions/2009/pdf/374-07-1.pdf

Outcome: REVERSED AND REMANDED.

Plaintiff's Experts:

Defendant's Experts:

Comments: