Katy v. Michael John Capriola, M.D.

• Decision Date: 16 April 2013
• Docket Number: No. COA12–625.,COA12–625.
• Citation: 742 S.E.2d 247
• Parties: Riadh KATY, Administrator of the Estate of Aziza Katy, Plaintiff v. Michael John CAPRIOLA, M.D., John David Riser, P.A., Keven Robert Chung, M.D., and McDowell Emergency Physicians, P.L.L.C., Defendants.
• Court: North Carolina Court of Appeals

742 S.E.2d 247

Riadh KATY, Administrator of the Estate of Aziza Katy, Plaintiff

v.Michael John CAPRIOLA, M.D., John David Riser, P.A., Keven Robert Chung, M.D., and McDowell Emergency Physicians, P.L.L.C., Defendants.

No. COA12–625.

Court of Appeals of North Carolina.

April 16, 2013.

Appeal by defendants John David Riser, P.A. and McDowell Emergency Physicians, P.L.L.C. from judgment entered 14 November 2011 and order entered 14 October 2011 by Judge Joseph Crosswhite in McDowell County Superior Court. Heard in the Court of Appeals 28 November 2012.

Elam & Rousseaux, P.A., Charlotte, by William R. Elam and William H. Elam, for plaintiff-appellee.

Carruthers & Bailey, P.A., Winston–Salem, by Joseph T. Carruthers, for defendant-appellants.

CALABRIA, Judge.

John David Riser, P.A. (“Riser”) and McDowell Emergency Physicians, P.L.L.C. (collectively, “defendants”) appeal from a judgment entered upon a jury verdict finding defendants liable for medical malpractice for their treatment of Aziza Katy (“Mrs. Katy”) and awarding Riadh Katy, as administrator of the Estate of Mrs. Katy (“plaintiff”), monetary damages and costs. Defendants are entitled to a new trial.

I. Background

On 9 February 2008, Mrs. Katy gave birth to twins at McDowell Hospital in Marion, North Carolina. Two days later, Dr. Richard Salsman (“Salsman”), Mrs. Katy's obstetrician, ordered an abdominal x-ray that indicated Mrs. Katy could be suffering from pneumonia. Mrs. Katy was treated with antibiotics and discharged on 13 February 2008. On 15 February 2008, Mrs. Katy experienced shortness of breath and went to Salsman's office for treatment. Salsman referred her to the McDowell Hospital Emergency Room (“the ER”) for further evaluation. After Dr. Keven Chung (“Chung”) and Dr. David Craig (“Craig”) reviewed Mrs. Katy's frontal and lateral chest x-rays, she was diagnosed with pneumonia, given a different class of antibiotics, and discharged from the ER the same day.

On 22 February 2008, Mrs. Katy returned to the ER, complaining of shortness of breath. Riser, a physician's assistant in the ER, briefly examined her and then ordered a flu swab, strep test, and a chest x-ray. The flu swab and strep test were negative. Riser consulted with Dr. Michael Capriola (“Capriola”) about the chest x-ray. Both believed Mrs. Katy suffered from pneumonia. Riser prescribed an antibiotic that provided broader coverage than the one she had previously taken and then discharged her with instructions to return to the ER if her symptoms continued and/or worsened.

Mrs. Katy's 22 February 2008 chest x-ray was not officially interpreted until Monday, 25 February 2008, because there were no radiologists on duty at McDowell Hospital from Friday evening until Monday morning. When a radiologist interpreted the chest x-ray, his diagnosis was different from that of Riser and Capriola. After reviewing Mrs. Katy's x-ray, the radiologist provided the ER with a report that, in his opinion, Mrs. Katy was probably suffering from worsening congestive heart failure. On 27 February 2008, Chung received the radiologist's report and instructed one of the ER nurses to contact Mrs. Katy with a warning that she should see her primary care physician “ASAP.” The nurse called and left a voicemail message for Mrs. Katy that day and spoke to plaintiff on 28 February 2008. Plaintiff was unable to schedule a visit with a cardiologist or internist until mid-March, and so the nurse recommended returning to the ER. Although Mrs. Katy was feeling badly and wanted to go to the ER, plaintiff convinced her to wait. On 1 March 2008, Mrs. Katy returned to McDowell Hospital and was admitted. On 2 March 2008, she was transferred to Mission Hospital (“Mission”) in Asheville. On 4 March 2008, Mrs. Katy suffered an embolus to her kidney, and the doctors at Mission began coagulation therapy. On 7 March 2008, Mrs. Katy suffered a stroke. Thereafter, she continued to decline until her death on 23 March 2008. According to Mrs. Katy's death certificate, her death was a result of complications from her stroke.

Plaintiff filed this action in his capacity as administrator of Mrs. Katy's estate on 18 May 2009. Plaintiff's complaint alleged medical malpractice by Capriola, Chung, Riser, and others at McDowell ER in negligently delaying the diagnosis of Mrs. Katy's congestive heart failure and further alleged that the delay caused or contributed to her subsequent stroke and death.

Beginning 29 August 2011, plaintiff's claims were tried by a jury in McDowell County Superior Court. On 13 September 2011, the jury returned a verdict finding that Mrs. Katy's death was not caused by any negligence on the part of Capriola and Chung. However, the jury found that Mrs. Katy's death was caused by the negligence of Riser and awarded plaintiff damages in the amount of $667,000. On 15 September 2011, defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. The trial court denied both motions, but reduced the damage award based upon a settlement between plaintiff and McDowell Hospital. Final judgment was entered on 14 November 2011. Defendants Riser and McDowell Emergency Physicians, P.L.L.C. appeal.

II. Standard of Care Testimony

Defendants argue that the trial court erred in ruling that Capriola, who was permitted to offer an opinion on the standard of care with respect to his own decisions regarding Mrs. Katy's treatment, was not permitted to offer a standard of care opinion with respect to Riser. We agree.

Generally, standard of care testimony is limited to whether a particular medical care provider's actions conformed “to the standard of professional competence and care customary in similar communities among [medical care providers] engaged in his field of practice.” Whitehurst v. Boehm, 41 N.C.App. 670, 674, 255 S.E.2d 761, 765 (1979). Because the practice of medicine ordinarily requires highly specialized knowledge beyond that of the average person, the applicable standard of care in a medical malpractice case must be established through expert testimony. Leatherwood v. Ehlinger, 151 N.C.App. 15, 20, 564 S.E.2d 883, 886 (2002).

Expert testimony is governed by Rule 702 of the North Carolina Rules of Evidence, which provides:

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, or otherwise, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles and methods.

(3) The witness has applied the principles and methods reliably to the facts of the case.

N.C. Gen.Stat. § 8C–1, Rule 702(a) (2011). Pursuant to Rule 702(d),

a physician who qualifies as an expert under subsection (a) of this Rule and who by reason of active clinical practice or instruction of students has knowledge of the applicable standard of care for ... physician assistants ... may give expert testimony in a medical malpractice action with respect to the standard of care of which he is knowledgeable of ... physician assistants licensed under Chapter 90 of the General Statutes....

N.C. Gen.Stat. § 8C–1, Rule 702(d) (2011). Thus, under this Rule, a physician may testify regarding the applicable standard of care for a physician assistant if the 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)). “[T]he trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony.” State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984).

In the instant case, Capriola testified that he was licensed to practice medicine in North Carolina. Additionally, he stated that he treated ER patients as a physician in Maine from 2001 to 2004, completed a family practice residency at Wake Forest, and was board certified in family medicine, a practice specialty which also includes emergency medicine. By virtue of this educational and professional background, Capriola possessed the qualifications necessary to testify as an expert under Rule 702.

Although the trial court did not formally recognize Capriola as an expert, it nonetheless allowed Capriola to offer expert testimony by permitting him to offer a standard of care opinion with respect to his treatment of Mrs. Katy. Specifically, Capriola was able to testify, without objection, that he complied with the applicable standard of care when he interpreted Mrs. Katy's chest x-ray and discharged her. Capriola testified that he used his best judgment consulting with Riser regarding his evaluation and diagnosis of Mrs. Katy. He also stated that he used “reasonable care and diligence in the application of [his] knowledge and skill” in his evaluation and diagnosis of Mrs. Katy. By allowing Capriola to testify regarding whether his treatment of Mrs. Katy complied with the applicable standard of care, the trial court implicitly allowed Capriola to testify as an expert under Rule 702(a). See Cato Equipment Co. v. Matthews, 91 N.C.App. 546, 552, 372 S.E.2d 872, 876 (1988) (“[I]n the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show a specific...