Preston v. Movahed

• Decision Date: 03 April 2020
• Docket Number: No. 124PA19,124PA19
• Citation: 840 S.E.2d 174,374 N.C. 177
• Parties: Donna J. PRESTON, Administrator of the Estate of William M. Preston v. Assadollah MOVAHED, M.D., Deepak Joshi, M.D., and Pitt County Memorial Hospital, Incorporated, d/b/a Vidant Medical Center
• Court: North Carolina Supreme Court

374 N.C. 177

840 S.E.2d 174

Donna J. PRESTON, Administrator of the Estate of William M. Preston

v.Assadollah MOVAHED, M.D., Deepak Joshi, M.D., and Pitt County Memorial Hospital, Incorporated, d/b/a Vidant Medical Center

No. 124PA19

Supreme Court of North Carolina.

Filed April 3, 2020

Edwards Kirby, L.L.P., by John R. Edwards, David F. Kirby, and Mary Kathryn Kurth, Raleigh, and Laurie Armstrong Law, PLLC, by Laurie Armstrong, for plaintiff-appellant.

Smith Anderson Blount Dorsett Mitchell & Jernigan, LLP, Raleigh, by John D. Madden and Robert E. Desmond, for defendant-appellee Assadollah Movahed, M.D.

EARLS, Justice.

Plaintiff, Donna Preston, the widow and estate representative of William M. Preston, appealed the trial court's order granting the motion to dismiss of defendant, Dr. Assadolah Movahed,¹ on the basis that plaintiff's medical malpractice complaint failed to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. The Court of Appeals affirmed, holding that competent evidence supported the trial court's determination that the expert witness retained by plaintiff to review Mr. Preston's medical care was unwilling to testify that defendant did not comply with the applicable standard of care, notwithstanding that the evidence would support findings to the contrary. Preston v. Movahed , ––– N.C. App. ––––, 825 S.E.2d 657, 662–65 (N.C. Ct. App. 2019). Because we conclude that in the light most favorable to plaintiff the factual record demonstrates that at the time of the filing of the complaint plaintiff's expert was willing to testify that defendant breached the applicable standard of care and plaintiff reasonably expected him to qualify as an expert, we reverse the decision of the Court of Appeals and remand for further proceedings.

Background

The undisputed facts from the pleadings and evidence before the trial court tend to show that on the morning of 3 February 2014, 54-year-old William Preston went to the emergency room at Vidant Medical Center complaining of shortness of breath and left-sided chest pain radiating to his left arm, symptoms that had begun twelve hours earlier. The intake physician noted Mr. Preston's risk factors for coronary artery disease

, including hypertension, a history of smoking, and his age, and further noted that Mr. Preston's chest pain was relieved by nitroglycerin. Electrocardiograms (EKGs² ) taken in the emergency room were abnormal, suggesting myocardial ischemia, a condition where the heart receives insufficient blood flow. After about two hours, Mr. Preston again complained of left arm pain, which was again relieved by nitroglycerin. Mr. Preston was admitted to the hospital for observation and the attending physician ordered further testing, including a "nuclear stress test."

In a nuclear stress test

, an EKG is taken while the patient exercises on a treadmill. The "nuclear" aspect involves injecting the patient with a "radiotracer" dye and using gamma rays to produce images of the patient's heart. During Mr. Preston's test that took place on the following day, he reported severe "chest pain and left arm pain at a level of 10/10" and the test was terminated due to shortness of breath and fatigue.

Defendant, a nuclear cardiologist, was assigned to read and interpret the results of Mr. Preston's stress test

. In his deposition, defendant explained that when interpreting the results of a nuclear stress test, he receives a document with the patient's information and medical history, EKG "tracings" from the exercise portion of the test, and the nuclear images. Defendant stated that he reviews this information "stage by stage," beginning with the patient's history and risk factors, then reviewing the EKG tracings, and then finally the nuclear images. According to defendant, he "complete[s] one study, finish[es] with the study," and moves to the next, making findings at each stage before making ultimate findings and preparing a report.

Here defendant received Mr. Preston's information sheet, which noted Mr. Preston's use of tobacco, his hypertension

, of which there was a family history, and his chest pain. With respect to the EKG tracings, defendant's written report noted that there was "no definite significant additional diagnostic ST segment depression or ST segment elevation recorded during exercise and recovery." Regarding the nuclear images, defendant's report noted a perfusion defect in the heart, which he thought was likely due to "significant gas in the stomach" but could not rule out ischemia. His report stated that "one may consider coronary CTA for further evaluation of coronary arteries in addition to aggressive risk factor modification."³ Defendant gave an oral report of his interpretation of the results of the test to his first-year cardiology fellow, Dr. Deepak Joshi, who entered a "fellow note" into Mr. Preston's chart. The note stated: "[n]uclear stress test

showed mild ischemia versus attenuation artifact in the inferolateral/inferior apical area. Discussed with Dr. Movahed, attending. Recommend outpatient cardiac CTA. Will arrange for the test and outpatient cardiology follow-up. Plan discussed with primary team."

Dr. Neha Doctor, a hospitalist, examined Mr. Preston after the nuclear stress test

. Plaintiff alleges that she and Mr. Preston were informed that the cardiac tests had been negative and that Mr. Preston's left-sided pain was likely neurological, not heart-related. Dr. Doctor discharged Mr. Preston with instructions to follow up with his primary care physician about an MRI and to follow up with the CT angiogram (CTA) appointment made by the cardiology team. This outpatient cardiology follow-up was scheduled for sixteen days later on 20 February 2014.

Two days after being discharged, Mr. Preston saw his primary care physician, who referred him for an MRI of his spine

. The MRI showed no neurological cause for Mr. Preston's continuing left arm pain.

On 13 February 2014, a week before his scheduled cardiac follow-up, Mr. Preston was at home when he called out to his wife. When plaintiff reached her husband, she found him collapsed on the floor and unresponsive. Responding to Plaintiff's 911 call, EMS found Mr. Preston pulseless and breathing about four times per minute, and therefore began resuscitation measures and transporting him to Vidant Medical Center. At Vidant's Emergency Department, further resuscitation efforts were unsuccessful and Mr. Preston was pronounced dead at 5:35 that afternoon. An autopsy revealed severe narrowing of the circumflex and right coronary arteries, acute and evolving myocardial infarction

, and transmural rupture of the left ventricular wall of Mr. Preston's heart.

On 25 November 2015, plaintiff filed a wrongful death action (the First Complaint) naming multiple defendants involved in Mr. Preston's medical care, including Dr. Neha Doctor. In accordance with the special pleading requirements of section (j) (Medical malpractice) of Rule 9 (Pleading special matters) of the North Carolina Rules of Civil Procedure, plaintiff alleged in the complaint that the medical care and medical records pertaining to Mr. Preston's treatment had been reviewed by a person reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who was willing to testify that the medical care did not comply with the applicable standard of care. Dr. Stuart Toporoff, a cardiologist, submitted an affidavit (his First Affidavit) averring that he had reviewed the medical care and records and was willing to testify that the care provided failed to comply with the applicable standard of care. On 29 January 2016, Dr. Doctor filed an answer alleging that Dr. Movahed's written report of Mr. Preston's stress test was not available to her when she was treating Mr. Preston, and that the cardiology team had recommended and taken responsibility for scheduling Mr. Preston's outpatient follow-up CTA.

On 12 February 2016 plaintiff filed a second complaint (the Second Complaint) naming as defendants Dr. Movahed, Dr. Deepak Joshi, and Pitt County Memorial Hospital, Inc., d/b/a Vidant Medical Center (the Hospital). Plaintiff's Second Complaint, which again included her Rule 9(j) expert certification, alleged that defendant was negligent by, inter alia , failing to "accurately interpret and communicate the findings and significance of diagnostic tests performed on Mr. Preston," failing to "timely suggest and perform a full assessment and work-up to rule out life-threatening acute coronary artery disease

for a patient at high risk for the disease, including but not limited to, cardiac catheterization," and failing "to recommend a cardiology consult for Mr. Preston prior to his discharge from Vidant Medical Center with acute chest pain." On the same day the Second Complaint was filed, Dr. Toporoff submitted a second affidavit (his Second Affidavit) stating that he had reviewed the medical care and records and was willing to testify that the care provided by the named defendants failed to comply with the applicable standard of care. Dr. Toporoff averred that the case materials were first provided to him in July of 2015 and that "[a]dditional materials were provided to [him] on October 12 and October 29, 2015 and on February 10, 2016." According to the affidavit, Dr. Toporoff's stated that based on his review of the medical records and his training and experience,

[i]t is my opinion that medical care provided to William Preston during his admission to Vidant Medical Center on February 3–4, 2014 for chest pain failed to comply with the applicable standard of care for the evaluation of a patient with chest and arm pain who presented with Mr. Preston's signs, symptoms, and medical history. ... I have expressed my willingness to testify to the above if called upon to do so.

By consent order filed 14 March 2016, the two actions were consolidated for discovery and trial.

During a subsequent deposition on 23 March 2017, Dr....