Purvis v. Moses H. Cone Memorial Hosp.

• Decision Date: 17 January 2006
• Docket Number: No. COA04-1418.,COA04-1418.
• Court: North Carolina Supreme Court
• Parties: Keisha PURVIS, Philip Purvis, and Monica Cooper Edwards, Guardian ad Litem for Aeron Purvis, a minor, Plaintiffs, v. MOSES H. CONE MEMORIAL HOSPITAL SERVICE CORPORATION, d/b/a Moses Cone Health System, d/b/a The Women's Hospital of Greensboro, Bernard A. Marshall, M.D., Charles A. Harper, M.D., and McArthur Newell, M.D., Defendants.

624 S.E.2d 380

Keisha PURVIS, Philip Purvis, and Monica Cooper Edwards, Guardian ad Litem for Aeron Purvis, a minor, Plaintiffs, v. MOSES H. CONE MEMORIAL HOSPITAL SERVICE CORPORATION, d/b/a Moses Cone Health System, d/b/a The Women's Hospital of Greensboro, Bernard A. Marshall, M.D., Charles A. Harper, M.D., and McArthur Newell, M.D., Defendants.

No. COA04-1418.

Court of Appeals of North Carolina.

January 17, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by plaintiffs from orders entered 10 May 2004 and 17 May 2004 by Judge Orlando F. Hudson, Jr., in Wake County Superior Court. Heard in the Court of Appeals 18 May 2005.

Greeson Law Offices, by Harold F. Greeson; and Shar, Rosen & Warshaw, LLC, by Michael S. Warshaw, Baltimore, MD, for plaintiffs-appellants.

Cranfill, Sumner & Hartzog, L.L.P., by David H. Batten, Leigh Ann Smith, and Kari R. Johnson, Raleigh, for defendant-appellee Bernard A. Marshall, M.D.

Yates, McLamb & Weyher, L.L.P., by Jason D. Newton, Raleigh, for defendant-appellee McArthur Newell, M.D.

GEER, Judge.

Plaintiffs Keisha and Philip Purvis, along with their son Aeron Purvis through his Guardian ad Litem Monica Cooper Edwards, brought a medical malpractice action against defendants Bernard A. Marshall, M.D. and McArthur Newell, M.D., alleging negligence in connection with Aeron's delivery. Plaintiffs appeal from a grant of summary judgment in favor of defendants. While we hold that summary judgment was proper as to Dr. Marshall because plaintiffs failed to establish that their sole standard of care expert was qualified to testify under N.C. Gen.Stat. § 90-20.12 (2003), we must reverse as to defendant Newell. Although Dr. Newell had died during the pendency of the lawsuit, the trial court did not rule on plaintiffs' motion to substitute the executrix for the estate as a party defendant. Without the substitution of the executrix, there was no party to seek summary judgment, and there was no party on whose behalf the court could enter judgment.

Facts

Keisha Purvis became pregnant in 1998. She experienced an uneventful pregnancy under the care of her regular obstetrician/gynecologist, Dr. Marshall. On Saturday, 13 February 1999, Ms. Purvis began experiencing contractions and sought care at The Women's Hospital of Greensboro ("Women's Hospital"). She was first seen by Dr. Charles Harper, who sent her home with instructions to see Dr. Marshall on Monday.

Ms. Purvis returned to Women's Hospital two hours later, in the early morning hours of 14 February 1999, because her water had broken. She was admitted and placed on an electronic fetal monitor. At that time, Dr. Newell was the supervising physician on call. Ms. Purvis remained at Women's Hospital under Dr. Newell's care through 14 February and overnight into 15 February.

Ms. Purvis came under the care of Dr. Marshall at approximately 4:30 a.m. on 15 February. Dr. Marshall monitored her progress through the morning of 15 February until Aeron was delivered in the early afternoon. When Aeron was delivered, his umbilical cord was wrapped around his neck. He appeared blue or gray in color and was "depressed" or oxygen-deprived. Aeron was ventilated and received medication, measures that revived him after about two minutes.

For the first few hours of Aeron's life, he appeared to be a normal infant. In the sixth hour, he had a seizure while he was with his mother, followed by a second one when he was in the nursery. Aeron was transferred to the hospital's neonatal intensive care unit "for further evaluation and management." He was eventually diagnosed with "neurologic problems, including spastic cerebral palsy, mental retardation, seizure disorder, cortical visual impairment, and microcephaly," resulting from "a hypoxic ischemic injury leading to an encephalopathy."

On 9 January 2002, plaintiffs filed a medical malpractice action against four defendants: (1) The Moses H. Cone Memorial Health Service Corporation, d/b/a The Moses Cone Health System, d/b/a The Women's Hospital of Greensboro; (2) Dr. Harper; (3) Dr. Marshall; and (4) Dr. Newell. Plaintiffs alleged generally that defendants were negligent in failing to detect Aeron's fetal distress such that delivery could be initiated in a timely manner.

Dr. Newell passed away on 9 July 2002. On 13 January 2004, plaintiff filed a motion to substitute "Dottie Jean Ambrose Newell, Executrix of the Estate of McArthur Newell, deceased." The trial court never ruled on this motion. Nevertheless, counsel for Dr. Newell filed a motion for summary judgment on 4 February 2004, an amended motion on 16 March 2004, and a second amended motion on 28 April 2004. Dr. Marshall filed a motion for summary judgment on 14 April 2004.

On 10 May 2004, the superior court entered an order granting summary judgment to Dr. Marshall. Likewise, on 17 May 2004, the court entered summary judgment "in favor of defendant McArthur Newell, M.D. (and his estate)." On 3 June 2004, plaintiffs voluntarily dismissed their claims against Women's Hospital without prejudice. They had previously, on 21 October 2003, voluntarily dismissed their claims against Dr. Harper without prejudice. Plaintiffs timely appealed from the two summary judgment orders.

A motion for summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R. Civ. P. 56(c). In deciding the motion, "`all inferences of fact . . . must be drawn against the movant and in favor of the party opposing the motion.'" Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W. Moore et al., Moore's Federal Practice § 56-15[3], at 2337 (2d ed.1971)). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party meets its burden, then the non-moving party must "produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial." Id. We review a trial court's grant of summary judgment de novo. Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C.App. 333, 340-41, 601 S.E.2d 915, 920 (2004).

Marshall Summary Judgment Order

In a medical malpractice action, a plaintiff has the burden of showing "(1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff." Weatherford v. Glassman, 129 N.C.App. 618, 621, 500 S.E.2d 466, 468 (1998). Defendant Marshall has argued that summary judgment was proper because plaintiffs failed to offer competent evidence of the standard of care and of proximate cause. We agree with respect to the standard of care.

N.C. Gen.Stat. § 90-21.12 sets forth the standard of care in a medical malpractice case:

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.

Id. (emphasis added). "Because questions regarding the standard of care for health care professionals ordinarily require highly specialized knowledge, the plaintiff must establish the relevant standard of care through expert testimony." Smith v. Whitmer, 159 N.C.App. 192, 195, 582 S.E.2d 669, 671-72 (2003).

In opposing a motion for summary judgment in a medical malpractice case, a plaintiff must demonstrate that his expert witness is "competent to testify as an expert witness to establish the appropriate standard of care" in the relevant community. Billings v. Rosenstein, ___ N.C.App. ___, ___, 619 S.E.2d 922, 925 (2005). In other words, in order "[t]o establish the relevant standard of care for a medical malpractice action, an expert witness must demonstrate that he is familiar with the standard of care in the community where the injury occurred, or the standard of care in similar communities." Id. at ___, 619 S.E.2d at 923. In the absence of such a showing, summary judgment is properly granted. Whitmer, 159 N.C.App. at 197, 582 S.E.2d at 673 (holding that because plaintiff's sole expert witness was not sufficiently familiar with the pertinent standard of care under N.C. Gen.Stat. § 90-21.12, his testimony was properly excluded, "render[ing] plaintiff unable to establish an essential element of his claim, namely, the applicable standard of care"). See also Weatherford, 129 N.C.App. at 623, 500 S.E.2d at 469 (holding that deposition testimony offered in opposition to a motion for summary judgment in a medical malpractice case must reveal that the witness is competent to testify as to the matters at issue).

We must, therefore, determine whether plaintiffs' sole standard of care expert, Dr. Alphonzo Overstreet, was competent to give standard of care testimony under N.C. Gen.Stat. § 90-21.12. An expert may "testify regarding the applicable standard of care in a medical malpractice case `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...