Cornett v. Watauga Surgical Group, P.A.
| Decision Date | 16 December 2008 |
| Docket Number | No. COA08-485.,COA08-485. |
| Citation | 669 S.E.2d 805 |
| Parties | Harold CORNETT, Administrator of the Estate of Dianne M. Morin (Deceased), Plaintiff v. WATAUGA SURGICAL GROUP, P.A., and Frank Y. Chase, M.D., Defendants. |
| Court | North Carolina Court of Appeals |
Charles G. Monnett III & Associates, by Charles G. Monnett III, Charlotte, for plaintiff-appellant.
Carruthers & Roth, P.A., by Richard L. Vanore, Robert N. Young, and Norman F. Klick, Jr., Greensboro, for defendants-appellees.
Harold Cornett, administrator of the estate of Dianne M. Morin, ("plaintiff") appeals the trial court's order and judgment granting Watauga Surgical Group, P.A.'s ("Watauga Surgical") and Frank Y. Chase's ("Dr. Chase") (collectively referred to as "defendants") motion to exclude plaintiff's expert witness and motion for summary judgment. We affirm.
Plaintiff alleges that on 13 March 2004, Dianne Morin ("the deceased") was admitted to the emergency room of Watauga Medical Center complaining of abdominal pain, nausea and vomiting. After Dr. Chase evaluated her, he performed a surgical procedure. Following surgery, the deceased remained in the hospital for nine days and experienced an increase in abdominal symptoms. On 22 March 2004, Dr. Chase performed exploratory surgery on the deceased and found further complications in her bowels. On 24 March 2004, Dr. Chase placed two drains in her abdomen. On 28 March 2004, the deceased was transferred to Wake Forest University Baptist Medical Center for treatment. On 2 April 2004, the deceased passed away.
On 28 March 2006, plaintiff filed a negligence complaint against Dr. Chase and Watauga Surgical. Pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure, plaintiff certified in his complaint that the deceased's medical care was reviewed by a person reasonably expected to qualify as an expert witness willing to testify that "the medical care provided did not comply with the applicable standard of care."
On 14 August 2007, defendants deposed Dr. Martin Litwin, M.D. ("Dr.Litwin"), plaintiff's proposed expert witness. On 1 November 2007, defendants moved to exclude Dr. Litwin, and moved for summary judgment. The case was called for trial on 12 November 2007. The trial court granted defendants' motions. At the pre-trial hearing on the motion to exclude, plaintiff moved under North Carolina Rules of Evidence, Rule 702(e), for the court to permit Dr. Litwin's standard of care testimony upon showing extraordinary circumstances and a determination that justice requires it. The trial court refused to hear the motion because the trial court judge was not a resident superior court judge as required by Rule 702(e). The trial court judge also stated in his order that if he had reached the motion, he would have denied it because plaintiff did not show either extraordinary circumstances or that justice required allowing a non-qualified expert witness to testify. Plaintiff also moved to continue the trial. This motion was denied. Plaintiff appeals.
Plaintiff contends the trial court erred in excluding Dr. Litwin as an expert witness on the basis that he did not meet the requirements of N.C. Gen.Stat. § 8C-1, Rule 702(b). We disagree.
Where the plaintiff contends the trial court's decision is based on an incorrect reading and interpretation of the rule governing admissibility of expert testimony, the standard of review on appeal is de novo. See FormyDuval v. Bunn, 138 N.C.App. 381, 385, 530 S.E.2d 96, 99, review denied, 353 N.C. 262, 546 S.E.2d 93 (2000); Smith v. Serro, 185 N.C.App. 524, 527, 648 S.E.2d 566, 568 (2007).
This Court also determines "(1) whether the trial court's conclusions of law support its judgment or determination, (2) whether the trial court's conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence." FormyDuval, 138 N.C.App. at 385, 530 S.E.2d at 100 (quoting Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989)).
The relevant portion of N.C. Gen. Stat. § 8C-1, Rule 702 provides:
(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.
N.C. Gen.Stat. § 8C-1, Rule 702(b) (2007).
It is undisputed that Dr. Litwin is a licensed physician specializing in the same specialty as defendants. In order to satisfy the threshold requirements of N.C. Gen.Stat. § 8C-1, Rule 702(b), Dr. Litwin must have devoted the majority of his professional time to either clinical practice in the specialty of surgery ("clinical surgery") or, instructing medical students in the specialty of surgery ("instructing surgery") or both clinical surgery and instructing surgery from March 2003 until March 2004. Id.
Dr. Litwin's testimony revealed that he was not devoting a majority of his professional time to clinical surgery or instructing surgery in the year prior to the occurrence at issue. Dr. Litwin testified that he ceased practicing general surgery in 2000 or 2001, except for minor cases once or twice a month. In 2002, Dr. Litwin took a medical leave of absence to undergo surgery for the removal of a pituitary tumor. Dr. Litwin returned to work in either the early part of 2004, or the latter part of 2003. Dr. Litwin worked half days for a month and then returned to a full-time schedule. Dr. Litwin's full-time work schedule consisted of sixty hours a week at this time.
Although Dr. Litwin did not perform any minor cases in 2003, he performed minor surgeries once a month in early 2004. Therefore, from March 2003 until March 2004, his clinical surgery consisted of an occasional minor surgery once or twice a month for up to two hours at a time. At the most, in a sixty-hour work week, the total time Dr. Litwin devoted to clinical surgery was one hour a week.
Although plaintiff contends the trial court failed to consider Dr. Litwin's occasional performance of minor surgery, it appears from the trial court's order that the court did consider Dr. Litwin's minor surgeries. In finding of fact number nine, the trial court states, "[t]he court has considered whether Dr. Litwin's teaching time together with the `minor surgeries' performed without general anesthesia and his other duties are sufficient to meet the requirements of Rule 702(b), and the court finds that they are not."
Dr. Litwin was employed as a professor of surgery at Tulane Medical School. In 2004, he assisted residents on one case per month and personally performed one case a month. Dr. Litwin participated in grand rounds with residents once a week which lasted an hour at a time. Twice a week, for two to three hours at a time, Dr. Litwin attended hospital rounds with residents. Dr. Litwin testified his teaching duties totaled from two to four hours per week. The remainder of his time was spent performing administrative functions, attending conferences and participating in committee meetings.
Plaintiff also argues Dr. Litwin's teaching activities amounted to all of his professional time. However, as previously noted, Dr. Litwin testified he spent significant time performing administrative duties such as attending committee meetings. Even considering all of his teaching time, it does not amount to more than half of his professional time.
The trial court did not err in determining that Dr. Litwin did not meet the requirements of Rule 702(b), since, in a sixty-hour work week, at the most, Dr. Litwin spent five hours a week in clinical surgery and instructing surgery. This was less than half of his professional time.
After the trial court excluded Dr. Litwin as an expert witness, plaintiff submitted an affidavit by Dr. Litwin contradicting his deposition testimony. Dr. Litwin asserted in his affidavit that his work schedule in the year preceding the alleged malpractice consisted of a thirty-four hour work week. Dr. Litwin's affidavit was not considered by the trial court because it was filed after the trial court entered its order excluding Dr. Litwin as an expert witness. Accordingly, we do not consider the affidavit in...
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