FormyDuval v. Bunn

• Decision Date: 20 June 2000
• Docket Number: No. COA99-961.,COA99-961.
• Citation: 138 NC App. 381,530 S.E.2d 96
• Parties: Marie T. FORMYDUVAL, Administratrix of the Estate of Hartwell B. FormyDuval, Plaintiff, v. David G. BUNN, M.D., Defendant.
• Court: North Carolina Court of Appeals

530 S.E.2d 96

138 NC App. 381

Marie T. FORMYDUVAL, Administratrix of the Estate of Hartwell B. FormyDuval, Plaintiff, v. David G. BUNN, M.D., Defendant.

No. COA99-961.

Court of Appeals of North Carolina.

June 20, 2000.

Britt & Britt, P.L.L.C., by William S. Britt, Lumberton, for plaintiff-appellant.

Walker, Clark & Allen, L.L.P., by Robert D. Walker, Jr. and O. Drew Grice, Jr., Goldsboro, for defendant-appellee.

SMITH, Judge.

Plaintiff Marie T. FormyDuval, administratrix of the estate of Hartwell B. Formy-Duval (decedent), appeals from the trial court's orders (1) prohibiting her expert witnesses from testifying as to the applicable standard of care and (2) dismissing her wrongful death claim against defendant. We affirm. Defendant is a physician practicing as a general practitioner in Whiteville, North Carolina, whose medical training included four years of medical school and a one year internship. Decedent first became a patient of defendant in 1976. On 26 August 1993, decedent, complaining of red spots on his legs and ankles and blue spots on his forearms and legs, was seen by defendant in defendant's office. It appears from the record that defendant drew blood from decedent and sent the blood sample to a lab in Burlington for analysis.

Plaintiff alleges the analysis of the blood sample was returned to defendant's office Friday, 27 August 1993, but that defendant did not inform decedent or plaintiff of the results of the analysis until 31 August 1993. On that date, decedent returned for a scheduled follow-up visit with defendant, at which defendant diagnosed decedent with thrombocytopenia purpura. Defendant alleges he implored decedent to be hospitalized to treat his condition, but decedent refused hospitalization.

Plaintiff called defendant after decedent's appointment, and alleges she was not informed of defendant's recommendation that decedent be hospitalized. On 2 September 1993, decedent complained of a severe headache and blurry vision, and was taken to defendant's office by plaintiff. Defendant advised plaintiff to immediately take decedent to the emergency room. Decedent died at the hospital 3 September 1993.

Plaintiff originally filed suit against defendant in 1995, but took a voluntary dismissal of that action and subsequently refiled on 19 August 1997. See N.C.G.S. § 1A-1, Rule 41(a) (1999). Plaintiff's refiled action alleged, inter alia, defendant "failed to properly refer [decedent] to specialists," should have "taken a more aggressive approach to [decedent's] treatment, including hospitalization," and upon receiving the blood test results, "should have called [d]ecedent ... and insisted that he go to the hospital." Defendant answered 28 August 1997 denying his negligence and asserting decedent's contributory negligence in bar of plaintiff's claims.

Trial began 12 April 1999. After hearing opening statements from both parties, the trial court heard argument regarding whether the expert medical witnesses plaintiff wished to call at trial, Dr. Lloyd McCaskill (Dr. McCaskill), Dr. Douglass Hammer (Dr. Hammer), and Dr. Eugene Paschold (Dr. Paschold), were qualified to testify against defendant pursuant to N.C.G.S. § 8C-1, Rule 702(c) (1999) (Rule 702). The parties also conducted a voir dire examination of Dr. McCaskill. The trial court then ruled, pursuant to defendant's Motion to Exclude Testimony of Expert Witnesses, that plaintiff's experts were not qualified to testify as to the applicable standard of care. Plaintiff thereupon rested her case, and defendant's subsequent motion for directed verdict was granted by the trial court. The sole issue on appeal is whether plaintiff's witnesses were properly disqualified.

Rule 702 governs the admissibility of expert testimony. Prior to 1996, Rule 702 stated:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.

Rule 702 was amended in 1995, with the amendments effective 1 January 1996 and applicable to all cases filed on or after that date. See 1995 N.C. Sess. Laws ch. 309, § 1. The parties concede that the amended version of the Rule applies to the instant action, which was refiled 19 August 1997. We assume without deciding that the parties are correct, and thus apply Rule 702, as amended, to the case sub judice.

The amended rule retains the language quoted above and adds several provisions relating specifically to expert witnesses testifying to the appropriate standard of care in medical malpractice actions. See Andrews v. Carr, 135 N.C.App. 463, 521 S.E.2d 269, 273 (1999),

disc. review denied, 351 N.C. 471, ___ S.E.2d ___ (2000). Rule 702(b)(1) governs expert testimony on the "appropriate standard of health care" offered against or on behalf of a "specialist," while Rule 702(c) governs such testimony offered against or on behalf of a "general practitioner:"

(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.

(c) Notwithstanding subsection (b) of this section, if the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the action, must have devoted a majority of his or her professional time to either or both of the following:

(1) Active clinical practice as a general practitioner; or

(2) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the general practice of medicine.

Both parties agree that (1) defendant in this case is a "general practitioner," such that Rule 702(c) governs the instant action; and, (2) none of plaintiff's proffered witnesses were engaged in instruction of students in the year preceding August 1993, such that section (c)(2) is inapplicable. Thus, to testify against defendant as to the applicable standard of care, plaintiff's experts must have, in the year preceding August 1993, (1) devoted a majority of their "professional time" (2) to "active clinical practice" (3) as a "general practitioner." Rule 702(c)(1). All three statutory requirements must be met in order to testify.

"[O]rdinarily, whether a witness qualifies as an expert is exclusively within the discretion of the trial judge." State v. Underwood, 134 N.C.App. 533, 541, 518 S.E.2d 231, 238 (1999), cert. allowed, 351 N.C. 368, ___ S.E.2d ___ (2000). However, where an appeal presents questions of statutory interpretation, full review is appropriate, and a trial court's conclusions of law are reviewable de novo. Mark IV Beverage, Inc. v. Molson Breweries USA, Inc., 129 N.C.App. 476, 480, 500 S.E.2d 439, 442,

disc. review denied, 349 N.C. 360, 515 S.E.2d 705 (1998).

De novo review is appropriate in the instant case, as plaintiff contends the trial court's decision was based on an incorrect "reading and construction of Rule 702," specifically the trial court's interpretation of the terms "clinical practice" and "general practitioner."¹See id.; see also Trapp v. Maccioli, 129 N.C.App. 237, 239, 497 S.E.2d 708, 710, disc. review denied, 348 N.C. 509, 510 S.E.2d 672 (1998) (whether medical malpractice plaintiff could reasonably expect witness who reviewed complaint to qualify as expert witness under Rule 702(b), as required by N.C.R. Civ. P. 9(j), is question of law subject to de novo review). Accordingly, this Court must determine

(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.

Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). Plaintiff herein did not assign error to the trial court's findings of fact. Thus, we presume the findings are supported by sufficient evidence, and they are binding on appeal. Steadman v. Pinetops, 251 N.C. 509, 514-15, 112 S.E.2d 102, 106 (1960).

The starting point for our analysis of the issues raised by plaintiff is Rule 702 itself. The "cardinal principle" of statutory construction "is to ensure...