Day v. Brant

• Decision Date: 20 July 2010
• Docket Number: No. COA09-573.,COA09-573.
• Parties: Duncan C. DAY and Ashley-Brook Day, as Co-Administrators of the Estate of Duncan C. Day, Jr., deceased, Plaintiffs,v.Thomas Alan BRANT, M.D., Edward William Hales, P.A., Mid-Atlantic Emergency Medical Associates, P.A. and Mooresville Hospital Management Associates, Inc. d/b/a Lake Norman Regional Medical Center, Defendants.
• Court: North Carolina Court of Appeals

697 S.E.2d 345

Duncan C. DAY and Ashley-Brook Day, as Co-Administrators of the Estate of Duncan C. Day, Jr., deceased, Plaintiffs,
v.
Thomas Alan BRANT, M.D., Edward William Hales, P.A., Mid-Atlantic Emergency Medical Associates, P.A. and Mooresville Hospital Management Associates, Inc. d/b/a Lake Norman Regional Medical Center, Defendants.

No. COA09-573.

Court of Appeals of North Carolina.

July 20, 2010.

697 S.E.2d 346

COPYRIGHT MATERIAL OMITTED

697 S.E.2d 347

Appeal by plaintiffs from order entered 25 July 2008 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 4 November 2009.
John J. Korzen, Winston Salem, and David A. Manzi, Monroe, for plaintiffs-appellants.

Carruthers & Roth, P.A., Greensboro, by Norman F. Klick, Jr., Robert N. Young, and Kevin A. Rust, for Thomas Alan Brant, M.D., Edward William Hales, P.A., and Mid-Atlantic Emergency Medical Associates, P.A., defendants-appellees.

GEER, Judge.

Plaintiffs Duncan C. Day and Ashley-Brook Day have appealed from the trial court's grant of a directed verdict to defendants Thomas Alan Brant, M.D.; Edward William Hales, P.A.; and Mid-Atlantic Emergency Medical Associates, P.A. Plaintiffs' 16-year-old son, Duncan C. Day, Jr. (“Duncan”), was injured in a car accident and brought to Lake Norman Regional Medical Center (“LNRMC”). After being examined and released, he died from internal bleeding when his liver, which had sustained lacerations in the car accident, ruptured. Plaintiffs contend defendants were negligent in failing to discover the liver lacerations and failing to admit Duncan to the hospital for observation and treatment.

At trial, defendants made two arguments in support of their motion for a directed verdict: (1) that plaintiffs' standard of care expert, Dr. Paul Mele, was not qualified to testify to the applicable standard of care and (2) that plaintiffs' causation expert, Dr. James O. Wyatt, III, presented insufficient evidence of proximate causation. Based on our review of that testimony, we disagree and hold that the testimony of Dr. Mele and Dr. Wyatt was sufficient to defeat defendants' motion for a directed verdict. Accordingly, we reverse.

Facts

On 27 October 2003, Duncan was involved in a head-on collision after falling asleep while driving on U.S. 21 in Iredell County, North Carolina. When Duncan arrived at LNRMC, Dr. Brant and Mr. Hales were on duty in the emergency room. Duncan had a seatbelt abrasion from his left shoulder to his right upper abdomen and bruises on his arms and legs. He reported neck and chest pain. A physical examination, blood work, a chest x-ray, cervical spine x-rays, and a limited cervical spine CT scan were performed, and no significant problems were discovered. Neither Dr. Brant nor Mr. Hales ordered an ultrasound or CT scan of Duncan's abdomen. Duncan was given pain medication and discharged.

The next morning, 28 October 2003, Duncan was found unresponsive at home and was pronounced dead on arrival at LNRMC. Internal bleeding from a liver rupture caused his death. Plaintiffs filed suit against Dr. Brant, Mr. Hales, Mid-Atlantic Emergency Medical Associates, and LNRMC in Iredell County Superior Court on 15 November 2004, but subsequently voluntarily dismissed the claim against LNRMC.

At trial, plaintiffs called Dr. Paul Mele, a board certified emergency medicine physician with 20 years experience, to give an expert opinion on the standard of care. After the trial court admitted Dr. Mele as an expert over defendants' objection, Dr. Mele explained that the liver and the spleen are the organs most commonly injured after

697 S.E.2d 348

blunt force trauma to the abdomen. According to Dr. Mele, simply being restrained by a seat belt can injure these organs.

Dr. Mele concluded that Dr. Brant and Mr. Hales failed to follow the standard of care in treating Duncan. He testified that given the facts known by the two men-Duncan was in a car accident, had chest pain, was bruised across his chest from his shoulder harness, was overweight, and was a teenager-Dr. Brant and Mr. Hales should have been alerted to the possibility that Duncan might have suffered an abdominal injury despite not reporting abdominal pain or suffering a broken rib. According to Dr. Mele, Dr. Brant and Mr. Hales “just really didn't give the abdomen a fair chance to be evaluated,” and “[i]t was just too easily dismissed as not an abdominal injury scenario at all....”

Plaintiffs tendered, without objection, their causation expert, Dr. James O. Wyatt, III, as an expert in trauma surgery. Dr. Wyatt explained that Duncan's death was due to exsanguination caused by a Grade IV or V laceration to his liver and a Grade II injury to his spleen. According to Dr. Wyatt, a “fair amount” of blood had built up underneath the laceration to Duncan's liver, and when it subsequently broke loose, it resulted in rapid bleeding that caused Duncan to pass out and go into cardiac arrest.

Dr. Wyatt testified that none of the studies performed on Duncan when first seen at the hospital would have diagnosed this problem and that such a diagnosis is usually made using a CT scan of the abdomen and pelvis. He testified that if the diagnosis had been made, Duncan should have been admitted to the hospital, where the injury should have initially been handled non-operatively. Dr. Wyatt detailed the options if non-operative management failed, including “[a]ngiography with possible embolization,” “[s]urgical management with possible hepatic repair,” and/or “[s]urgical management with damage control packing.” In his written report, he concluded that “[s]urvival is excellent (>51%) in patients who arrive in the hospital and get proper initial and subsequent management.” Dr. Wyatt believed that if Duncan had been in the hospital when his liver ruptured, “he would have survived it.”

At the conclusion of plaintiffs' evidence, defendants moved for a directed verdict on the grounds that Dr. Mele was not qualified to give an expert opinion on the standard of care and that plaintiffs had not shown proximate cause. The trial court granted the motion without specifying its grounds. Plaintiffs timely appealed to this Court.

Discussion

“ ‘This Court reviews a trial court's grant of a motion for directed verdict de novo.’ ” Kerr v. Long, 189 N.C.App. 331, 334, 657 S.E.2d 920, 922 (quoting Herring v. Food Lion, LLC, 175 N.C.App. 22, 26, 623 S.E.2d 281, 284 (2005), aff'd per curiam, 360 N.C. 472, 628 S.E.2d 761 (2006)), cert. denied, 362 N.C. 682, 670 S.E.2d 564 (2008). The Court must determine “ ‘whether, upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence [is] sufficient to be submitted to the jury.’ ” Id. (quoting Brookshire v. N.C. Dep't of Transp., 180 N.C.App. 670, 672, 637 S.E.2d 902, 904 (2006)).

“When a defendant moves for a directed verdict in a medical malpractice case, the question raised is whether the plaintiff has offered evidence of each of the following elements of his claim for relief: (1) the standard of care, (2) breach of the standard of care, (3) proximate causation, and (4) damages.” Turner v. Duke Univ., 325 N.C. 152, 162, 381 S.E.2d 706, 712 (1989). In this case, the sole issues are the sufficiency of the evidence as to the standard of care and proximate causation.

I

There is no dispute that Dr. Mele testified that defendants breached the standard of care. Defendants, however, contend that plaintiffs did not properly establish that Dr. Mele was qualified to provide expert testimony on the applicable standard of care. In medical malpractice cases, “ ‘[b]ecause questions regarding the standard of care for health care professionals ordinarily require highly specialized knowledge, the plaintiff must establish the relevant standard of care

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through expert testimony.’ ” Billings v. Rosenstein, 174 N.C.App. 191, 194, 619 S.E.2d 922, 924 (2005) (quoting Smith v. Whitmer, 159 N.C.App. 192, 195, 582 S.E.2d 669, 671-72 (2003)) disc. review denied, --- N.C. ----, 630 S.E.2d 664 (2006).

N.C. Gen.Stat. § 90-21.12 (2009) sets out the standard of care applicable in a medical malpractice action:

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.

An expert witness may testify regarding this standard of care “ ‘when that physician is familiar with the experience and training of the defendant and either (1) the physician is familiar with the standard of care in the defendant's community, or (2) the physician is familiar with the medical resources available in the defendant's community and is familiar with the standard of care in other communities having access to similar resources.’ ” Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp., 175 N.C.App. 474, 478, 624 S.E.2d 380, 384 (2006) (quoting Barham v. Hawk, 165 N.C.App. 708, 712, 600 S.E.2d 1, 4 (2004), aff'd per curiam by an equally divided court, 360 N.C. 358, 625 S.E.2d 778 (2006)).

In arguing that Dr. Mele was not qualified to testify regarding the applicable standard of care, defendants first point out that Dr. Mele never testified he was a licensed physician. See N.C.R. Evid. 702(b) (requiring expert witness giving testimony on standard of care to be “a licensed health care provider in this State or another state”). While Dr. Mele was not specifically asked whether he had a medical...