Crocker v. Roethling, No. 374PA07.

Docket NºNo. 374PA07.
Citation363 N.C. 140, 675 S.E.2d 625
Case DateMay 01, 2009
CourtUnited States State Supreme Court of North Carolina
675 S.E.2d 625
363 N.C. 140
Ronald CROCKER and Paulette Crocker as Co-Administrators of the Estate of Reagan Elizabeth Crocker
H. Peter ROETHLING, M.D. and Wayne Women's Clinic, P.A.
No. 374PA07.
Supreme Court of North Carolina.
May 1, 2009.

[675 S.E.2d 627]

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, 184 N.C.App. 377, 646 S.E.2d 442, 2007 WL 1928681 (2007), affirming an order granting summary judgment for defendants entered on 1 March 2006 by Judge W. Russell Duke, Jr., in Superior Court, Johnston County. Heard in the Supreme Court 18 March 2008.

The McLeod Law Firm, P.A., by Joe McLeod; and Law Offices of Wade E. Byrd, P.A., by Wade E. Byrd, Fayetteville, for plaintiff-appellants.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Samuel G. Thompson and William H. Moss, Raleigh, for defendant-appellees.

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

HUDSON, Justice.

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 co-administrators 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.

675 S.E.2d 628

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.,

675 S.E.2d 629

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 of assessing" the admissibility of expert testimony under Rule 702. Howerton, 358 N.C. 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...

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