Pitts v. Nash Day Hosp., Inc.

• Decision Date: 07 December 2004
• Docket Number: No. COA03-558.,COA03-558.
• Citation: 167 NC App. 194,605 S.E.2d 154
• Parties: Jennifer L. PITTS, Administratrix of the Estate of Felicia Hope Lynch, Plaintiff v. NASH DAY HOSPITAL, INC., Englewood OB-GYN Associates, Inc., Tommy R. Harris, and Moses E. Wilson, Defendants.
• Court: North Carolina Court of Appeals

605 S.E.2d 154

167 NC App. 194

Jennifer L. PITTS, Administratrix of the Estate of Felicia Hope Lynch, Plaintiff v. NASH DAY HOSPITAL, INC., Englewood OB-GYN Associates, Inc., Tommy R. Harris, and Moses E. Wilson, Defendants.

No. COA03-558.

Court of Appeals of North Carolina.

December 7, 2004.

Rountree & Boyette, L.L.P., by Charles S. Rountree, Tarboro, for plaintiff-appellant.

Yates, McLamb & Weyher, L.L.P., by Barry S. Cobb, Raleigh, for defendants-appellees.

CALABRIA, Judge.

Jennifer L. Pitts ("plaintiff"), administratrix of the estate of Felicia Hope Lynch, appeals from order of the trial court excluding the testimony of plaintiff's expert witness and directing a verdict in favor of defendants, Englewood OB-GYN Associates, Inc. ("Englewood"), Tommy R. Harris ("Dr.Harris"), and Moses E. Wilson ("Dr.Wilson").¹ For the reasons stated herein, we reverse.

This lawsuit arose out of allegations of negligence surrounding laparoscopic surgery performed on Felicia Hope Lynch ("Ms.Lynch") by Dr. Harris on 13 January 1998. Due to chronic pelvic pain and an adnexa cyst, Ms. Lynch's physician referred her to Dr. Harris, a board-eligible but not board-certified specialist in obstetrics and gynecology with operative privileges at Nash Day Hospital. Ms. Lynch's sonogram revealed an ovarian cyst measuring five centimeters. Dr. Harris scheduled Ms. Lynch for surgery to remove the cyst.

On 13 January 1998 at Nash Day Hospital after Ms. Lynch was placed under anesthesia and examined, Dr. Harris commenced the laparoscopic surgery for removal of the cyst and possibly an ovary. During the surgery, Dr. Harris discovered the cyst was much smaller than originally anticipated but multiple adhesions in Ms. Lynch's pelvic region connected her organs to her abdominal wall. Dr. Harris changed his surgical plan and attempted to cut and release the adhesions but stopped when he deemed it was no longer safe and saw that he could not remove all the adhesions. Upon completion of the surgery, Dr. Harris placed a clear fluid in the abdominal cavity to ensure there was no remaining internal bleeding and found no indication of any bleeding. After surgery, Ms. Lynch was taken to the Nash Day Hospital recovery room, where it was noted that her blood pressure had dropped. Nevertheless, Dr. Harris never examined or observed Ms. Lynch after the surgery. He testified that Ms. Lynch was not yet awake, "so there was nothing for me to say to her." Dr. Harris also testified that, after surgery, it was standard practice for the anesthesiologist, rather than the operating surgeon, to manage the care of the patient in the recovery room.

Following discharge, Ms. Lynch experienced nausea, vomiting, abdominal cramps, and was also lethargic and pale. James Lee Williams ("Mr.Williams"), Ms. Lynch's boyfriend, called Dr. Harris' office, Englewood, multiple times reporting the problems Ms. Lynch was experiencing. The office staff, on behalf of Dr. Harris' partner, Dr. Wilson, told Mr. Williams the symptoms were normal. On the night of 14 January 1998, Ms. Lynch stopped breathing and efforts to resuscitate her were unsuccessful. She was pronounced dead in the emergency room at Halifax Memorial Hospital. The medical examiner determined the cause of her death was "exsanguination from the left ovarian artery." Stated another way, Ms. Lynch bled to death internally from a cut to her left ovarian artery, either by "scalpel or trochar injury" or while the "adhesions were being lysed." At the time of her death, Ms. Lynch was twenty-eight years old.

Plaintiff brought suit for wrongful death and medical malpractice. Plaintiff alleges Dr. Harris was negligent in his surgical performance and administration of post-operative care. Plaintiff also contends Dr. Wilson failed to properly respond to the telephone calls from Mr. Williams alerting him and his staff of Ms. Lynch's failing condition.

At trial, plaintiff tendered one expert witness, Daniel M. Strickland ("Dr.Strickland"), as an "expert in the standards of practice in this case." Three separate times, plaintiff attempted to tender Dr. Strickland as an expert witness. Defendants objected each time, contending plaintiff had failed to establish Dr. Strickland was familiar with the standard of care in Rocky Mount or a similar community, as required by N.C. Gen.Stat. § 90-21.12 (2003). The trial court allowed plaintiff to reopen Dr. Strickland's testimony in order to make a further showing on the issue of "similar community." After finding that plaintiff failed to present competent medical testimony establishing the relevant standard of care, the trial court granted defendants' motion for directed verdict. Plaintiff appeals.

Plaintiff assigns error to the trial court's finding of fact that Dr. Strickland was not familiar 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." Plaintiff also assigns error to the trial court's conclusions of law that Dr. Strickland's testimony was irrelevant, immaterial, and inadmissible. We agree with plaintiff and reverse the trial court.

The trial court directed a verdict in the case sub judice after determining that Dr. Strickland could not show personal knowledge of the standard of care for laparoscopic surgery in Rocky Mount or a similar community. We initially note that "[t]he competency of a witness to testify as an expert is addressed to the sound discretion of the trial court and the trial court's determination will not be disturbed by the reviewing court in the absence of an abuse of discretion." Barham v. Hawk, ___ N.C.App. ___, ___, 600 S.E.2d 1, 4 (2004). In determining whether the trial court abused its discretion, we consider N.C. Gen. Stat § 90-21.12, which sets forth the standard of care in medical malpractice cases:

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.

In analyzing N.C. Gen.Stat. § 90-21.12, the trial court opined that the legislature "intended in every way to say as strongly as they could say it that North Carolina wishes to avoid a national standard of care." The court concluded that "Dr. Strickland has articulated a national standard rather than the local standard of Rocky Mount."

Although Dr. Strickland testified that the standard of care for laparoscopic surgery is a national standard, we are not of the opinion that such testimony inexorably requires that his testimony be excluded. Rather, the critical inquiry is whether the doctor's testimony, taken as a whole, meets the requirements of N.C. Gen.Stat. § 90-21.12. In making such a determination, a court should consider whether an expert is familiar with a community that is similar to a defendant's community in regard to physician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community.² See Henry v. Southeastern OB-GYN Assocs., P.A., 145 N.C.App. 208, 211, 550 S.E.2d 245, 247 (2001)

; Tucker v. Meis, 127 N.C.App. 197, 198-99, 487 S.E.2d 827, 829 (1997).

In the case sub judice, the evidence showed that Dr. Strickland's skill, training, and experience in obstetrics and gynecology are comparable to Dr. Harris' skill, training, and experience. Regarding the respective physician skill and training, the evidence showed that Dr. Harris is a board-eligible specialist in obstetrics and gynecology. Dr. Strickland is a board-certified specialist in obstetrics and gynecology. Dr. Harris and Dr. Strickland were trained outside of North Carolina but practiced medicine in multiple communities within the State. Dr. Harris undergoes continuing medical education including 150 hours of required credits every three years and also takes numerous courses in Maryland and Georgia. Dr. Strickland is a Fellow with the American College of Obstetricians and Gynecologists.

The evidence was also sufficient to show that facilities, equipment, funding, and the physical and financial environment of both the communities in which Dr. Strickland practiced obstetrics and gynecology and in Rocky Mount are similar. Dr. Strickland is licensed in five states, currently practices in West Jefferson, North Carolina, and has also practiced extensively in other locations throughout North Carolina including Albemarle, Boone, Elkin, Lenoir/Hickory, Mount Airy, and Wilkesboro. At trial, Dr. Strickland specifically cited the population and median income of Rocky Mount and testified that Rocky Mount is similar to communities in which he has practiced in terms of population served, rural nature, depressed economy, and limitations on resources. Additionally, prior to testifying, Dr. Strickland not only observed the community of Rocky Mount but also noted the size of Nash Day Hospital. Dr. Strickland also testified that he deduced from medical records and Dr. Harris' deposition the type of equipment and techniques Dr. Harris used in Ms. Lynch's surgery.

Dr. Strickland was familiar with the equipment because he used similar to equipment in other communities in his medical practice. Dr. Strickland's testimony falls within the scope of testimony that this Court has held to be permissible under N.C. Gen.Stat. § 90-21.12. In Cox v. Steffes, this Court summarized some of the relevant cases:

In Coffman v. W. Earl Roberson, M.D., P.A., 153 N.C.App. 618, 624-25, 571

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