Coffman v. Roberson

• Decision Date: 05 November 2002
• Docket Number: No. COA02-100.,COA02-100.
• Citation: 571 S.E.2d 255,153 NC App. 618
• Parties: Sarah H. COFFMAN and Harse H. Coffman, Plaintiffs v. W. Earl ROBERSON, M.D., P.A., William Earl Roberson, M.D., and Stephen L. Brewbaker, M.D., Defendants. Sarah H. Coffman and Harse H. Coffman, Plaintiffs v. Delaney Radiologists Group, L.L.P.; and Mark William Ragozzino, M.D., Defendants.
• Court: North Carolina Court of Appeals

571 S.E.2d 255

153 NC App. 618

Sarah H. COFFMAN and Harse H. Coffman, Plaintiffs v. W. Earl ROBERSON, M.D., P.A., William Earl Roberson, M.D., and Stephen L. Brewbaker, M.D., Defendants.

Sarah H. Coffman and Harse H. Coffman, Plaintiffs v. Delaney Radiologists Group, L.L.P.; and Mark William Ragozzino, M.D., Defendants.

No. COA02-100.

Court of Appeals of North Carolina.

November 5, 2002.

Law office of William F. Maready by Gary V. Mauney, Winston-Salem, for plaintiffs-appellees.

Wilson & Iseman, L.L.P. by G. Gray Wilson and Kevin B. Cartledge, Winston-Salem, for defendants-appellants.

TYSON, Judge.

I. Facts

On 28 May 1997, Sarah H. Coffman ("Sarah") went to her treating obstetrician/gynecologist, W. Earl Roberson, M.D. ("Dr. Roberson"), after a urine pregnancy test showed she was pregnant. Dr. Roberson performed an hCG test which revealed that the human chorionic gonadotropin hormone level in her blood was elevated, suggestive of pregnancy, although his physical exam "did not show a pregnancy in the uterus." Dr. Roberson referred Sarah for an ultrasound test. On 29 May 1997, an ultrasound was performed by Mark W. Ragozzino, M.D. ("Dr. Ragozzino") that led him to suspect that Sarah had an ectopic pregnancy. Dr. Roberson was called in his car on the way to vacation and was read the ultrasound report over the phone. He never reviewed the ultrasound personally. The report stated that the radiologist "strongly suspect[ed]" an ectopic pregnancy. While still driving to vacation, Dr. Roberson called Sarah to discuss the ultrasound. Because of the danger from an ectopic pregnancy, Dr. Roberson referred Sarah to Stephen L. Brewbaker, M.D. ("Dr. Brewbaker") who, based on the opinion of Dr. Roberson, prescribed the administration of a shot of Methotrate to terminate the pregnancy which was administered on 30 May 1997 at New Hanover Regional Medical Center. In late June 1997, Sarah began having cramps and feeling sick. On 26 June 1997, a second ultrasound revealed an intrauterine pregnancy without a heartbeat. A dilation and evacuation procedure was performed by Dr. Roberson on Sarah on 27 June 1997.

On 13 October 1998, Sarah and her husband Harse H. Coffman ("plaintiffs") filed a complaint alleging medical malpractice against Dr. Roberson, W. Earl Roberson, M.D. P.A. ("Roberson P.A."), Dr. Brewbaker, Dr. Ragozzino, and Delany Radiologists Group, L.L.P. ("Delany"). On 3 August 1999, plaintiffs voluntarily dismissed without prejudice their claims as to Dr. Ragozzino and Delaney. On 28 September 1999, plaintiffs filed a separate complaint against Dr. Ragozzino and Delany. On 21 July 2000, the trial court granted plaintiffs' motion to consolidate the two actions pursuant to Rules 20 and 21 of the North Carolina Rules of Civil Procedure. On 23 October 2000, a jury returned a verdict finding that plaintiff Sarah was injured by the negligence of Dr. Roberson and Roberson P.A. in the amount of $250,000. It further found Sarah was not injured by the negligence of Drs. Brewbaker and Ragozzino. It also found plaintiff Harse Coffman was not injured by the negligence of any defendant. On 7 December 2000, the trial court denied defendants' Dr. Roberson and Roberson, P.A. motion for judgment notwithstanding the verdict ("JNOV") and their motion for a new trial. The trial court also granted Sarah's motion for costs against defendants Dr. Roberson and Roberson, P.A. Only defendants Dr. Roberson and Roberson, P.A. appealed. On 27 August 2001, the trial court dismissed defendants' appeal. On 3 October 2001, this Court granted a Writ of Certiorari to Dr. Roberson and Roberson, P.A. only.

II. Issues

Defendants contend that the trial court erred by (1) allowing Dr. Linton to testify without being properly qualified as an expert witness; (2) allowing Dr. Horner and Dr. Otto to testify because they were not familiar with the community standard of care; (3) allowing Dr. Warren and Dr. Tonn to testify without a limiting instruction because they were not properly designated during discovery; (4) allowing Dr. Tonn and Dr. Warren to testify to plaintiffs' damages; (5) denying defendants' motion for JNOV; and (6) awarding costs to plaintiff.

III. Testimony of Dr. Linton

Defendants contend that the trial court erred by admitting the medical expert testimony of Eugene Linton, M.D. ("Dr. Linton") "on the ground that he was not properly qualified under Rule 702 of the North Carolina Rules of Evidence." We disagree.

Rule 702 of the North Carolina Rules of Evidence states in part:

(b) In a medical malpractice action as defined in G.S. 90-21.11, 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 is a licensed health care provider in this State or another state and meets the following criteria:

(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

a. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or

b. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.

(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:

a. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or

b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.

Ordinarily, the determination of whether a witness qualifies as an expert lies within the discretion of the trial court. Edwards v. Wall, 142 N.C.App. 111, 115, 542 S.E.2d 258, 262 (2001). "However, `[w]here an appeal presents questions of statutory interpretation, full review is appropriate, and [a trial court's] "conclusions of law are reviewable de novo." ` " Id. (Citations omitted).

At trial, Dr. Linton testified as follows:

Q. And have you continued any work in the medical field since [31 December 1994 when you retired from private practice]?

A. Yes, I have. I did some volunteer teaching at the medical school at Bowman Gray School of Medicine.

...

Q. Were you assisting in that program from the vantage point of an OB/GYN?

A. Yes, I was. We discussed cases other than obstetrics/gynecology but, again, as a primary care physician for women from a point of view of obstetric/gynecology, you must have a broad grasp of the other medical fields other than just the obstetrics/gynecology.

Q. Were you continuing in that endeavor the year prior to May of 1997?

A. Yes. The year 1997, that school year, I was in, I think, both semesters of that particular school year.

Q. Was that a majority of your professional time during that period of time?

A. It didn't take up a great deal of time. But that's all I did professionally during that period of time.

Dr. Linton specialized in the same specialty, obstetrics/gynecology, as Dr. Roberson. During the year preceding 29 March 1997, Dr. Linton spent all of his professional time teaching at an accredited health professional school and the majority of it teaching "from the vantage point of OB/GYN." This is sufficient evidence to meet the requirements of Rule 702. The trial court did not err in qualifying Dr. Linton as an expert and admitting his testimony into evidence. This assignment of error is overruled.

IV. Testimony of Drs. Horner and Otto

Defendant contends that the trial court erred in admitting the expert testimony of Drs. Horner and Otto "on the ground that these physicians were not familiar with the community standard" as required by N.C. Gen.Stat. § 90-21.12. We disagree.

N.C. Gen.Stat. § 90-21.12 provides:

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.

A. Dr. Horner

Dr. Horner testified that he practiced in the Charlotte, North Carolina area and was licensed to practice throughout the state. At trial, Dr. Horner testified that he was familiar with the standard of care with respect to obstetrics, gynecology and sonography in communities similar to Wilmington, North Carolina. He based this opinion on Internet research about the size of the hospital, the training program, and the AHEC (Area Health Education Center) program. He testified that the hospital involved was "a training hospital, very sophisticated." This testimony is sufficient to satisfy the requirements for N.C. Gen.Stat. § 90-21.12. The trial court did not err in admitting the expert testimony of Dr. Horner.

B. Dr. Otto

Dr. Otto, a board certified specialist in obstetrics/gynecology, is licensed to practice medicine in California and Colorado. He testified as follows:

Q. Have you

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