Schmidt v. Scott Miller Petty, MD & Nantahala Radiology Assocs., P.A.

• Citation: 752 S.E.2d 690
• Decision Date: 17 December 2013
• Docket Number: No. COA13–278.,COA13–278.
• Parties: Philip SCHMIDT, as Administrator of the Estate of Martha Jean Schmidt, Plaintiff, v. Scott Miller PETTY, MD and Nantahala Radiology Associates, P.A., Defendants.
• Court: Court of Appeal of North Carolina (US)

752 S.E.2d 690

Philip SCHMIDT, as Administrator of the Estate of Martha Jean Schmidt, Plaintiff,

v.Scott Miller PETTY, MD and Nantahala Radiology Associates, P.A., Defendants.

No. COA13–278.

Court of Appeals of North Carolina.

Dec. 17, 2013.

Appeal by plaintiff from judgment entered 22 October 2012 by Judge Sharon T. Barrett in Macon County Superior Court. Heard in the Court of Appeals 29 August 2013.

Fred D. Smith Jr., P.C., by Fred D. Smith, Jr. and Ron L. Moore, P.A., by Ron L. Moore, for plaintiff-appellant.

Northup, McConnell & Sizemore PLLC, Asheville, by Isaac N. Northup, Jr. and Katherine M. Bulfer, for defendants-appellees.

DAVIS, Judge.

Plaintiff Philip Schmidt, administrator of the estate of Martha Jean Schmidt (“Plaintiff”), appeals from a judgment entered by the trial court upon a jury verdict in favor of Scott Miller Petty, M.D. (“Dr. Petty”) and Nantahala Radiology Associates, P.A. (collectively “Defendants”) in a medical malpractice action. On appeal, he contends the trial court committed reversible error by granting a motion in limine filed by Defendants that had the effect of precluding his expert witnesses from offering certain opinion testimony at trial. After careful review, we affirm.

Factual Background

On 12 May 2006, Plaintiff's decedent, Martha Jean Schmidt (“Mrs. Schmidt”), sought medical care at Smokey Mountain Healthcare Associates (“SMHA”) based on symptoms of an upper respiratory infection. During her visit, a two-view x-ray was taken of Mrs. Schmidt's chest. Dr. Petty, a licensed radiologist who reviewed x-rays for SMHA and Angel Medical Center, Inc. (“Angel Medical”), reviewed the x-ray but did not note in his report the presence of a lesion in the upper lobe of Mrs. Schmidt's left lung.

On 27 May 2007, Mrs. Schmidt sought medical care at Angel Medical, complaining of pain in her neck and chest. A chest x-ray was ordered by emergency room physician Dr. James Lapkoff. In his report interpreting the x-ray, Dr. Petty stated that “the lungs are clear and the heart size and pulmonary vasculature are within normal limits. No acute bony abnormalities are identified.” Once again, Dr. Petty's report failed to detect the presence of a lesion in Mrs. Schmidt's left lung.

On 27 May 2008, Mrs. Schmidt sought medical care from her primary physician, Dr. Sondra K. Wolf (“Dr. Wolf”), complaining of symptoms associated with pneumonia. Dr. Wolf ordered a chest x-ray, which was performed at Angel Medical. Dr. Petty reviewed the x-ray and reported that “[b]ilateral hyperinflation remains compatible with COPD. There are no new areas of infiltrate or atelectasis. The heart size is stable and there is no evidence for pulmonary edema.” Dr. Petty's report again failed to note the presence of the lesion in Mrs. Schmidt's left lung.

Mrs. Schmidt subsequently sought treatment from Dr. Garland C. King (“Dr. King”) on 16 June 2008 based on complaints of pleuritic chest pain and abdominal pain. Dr. King ordered a computed tomography (“CT”) scan of her abdomen and chest. Dr. Petty reviewed these images and reported that “the findings are indicative of primary lung neoplasm [cancer] until otherwise excluded.”

On 21 February 2009, Mrs. Schmidt died of metastatic lung cancer. On 10 February 2011, Plaintiff initiated a medical malpractice action in Macon County Superior Court against Dr. Petty and his practice, Nantahala Radiology Associates, P.A. Plaintiff alleged in his complaint that from May 2006 through May 2008 Mrs. Schmidt's radiographic findings were “reasonably suspicious for cancer ... and failure to timely diagnose and treat Mrs. Schmidt's lung cancer in May of 2006 and 2007. led to a progression of her lung cancer from treatable, curable stage in May of 2006 and 2007 to an incurable, terminal stage by June of 2008.” Plaintiff further alleged that the two-year delay in diagnosis constituted negligence and was a proximate cause of her death.

Plaintiff's expert oncologist, Dr. Gerald Sokol, testified in his deposition that had Mrs. Schmidt's lung cancer been diagnosed in May of 2006 or May of 2007, she would have had an 80% to 85% probability of being cured. He further opined that by May of 2008, however, Mrs. Schmidt's lung cancer was incurable.

Dr. Paul Molina (“Dr. Molina”) and Dr. Philip Goodman (“Dr. Goodman”)—Defendants' expert witnesses—testified at their depositions that Mrs. Schmidt's 2006 and 2007 chest x-rays did not contain a left upper lobe focal opacity that was suspicious for cancer such that no CT scan was required, and that, therefore, Dr. Petty had not violated the applicable standard of care with respect to his review of these x-rays.

Plaintiff's expert witnesses, Dr. Karsten Konerding (“Dr. Konerding”) and Dr. Randall Patten (“Dr. Patten”), testified in their depositions, conversely, that Dr. Petty had in fact violated the standard of care by failing to report the presence of the focal opacity that was present on all three of Mrs. Schmidt's x-rays as a suspicious area that required follow-up study by means of a chest CT scan. Drs. Konerding and Patten also testified that the 27 May 2008 chest x-ray revealed a widened mediastinum that likewise should have been noted by Dr. Petty as indicative of metastatic disease with a recommendation for further study through a chest CT scan. Notably, however, both Dr. Patten and Dr. Konerding admitted that a finding to this effect by Dr. Petty on 27 May 2008 would not have prevented Mrs. Schmidt's death from metastatic lung cancer.

A motion in limine was filed by Defendants to exclude evidence regarding Dr. Petty's analysis of Mrs. Schmidt's 27 May 2008 chest x-ray. The motion was orally amended so as to seek the exclusion of “any testimony that Dr. Petty violated the standard of care in reading that x-ray.”

The motion was heard before the Honorable Sharon T. Barrett on 8 October 2012. Plaintiff argued that expert testimony that Dr. Petty violated the standard of care by failing to note a lesion in his analysis of the 27 May 2008 x-ray was relevant and admissible to “show how the lesion progresse[d].” Plaintiff further contended such opinion testimony was relevant because the “jury could infer ... that since Dr. Petty did not report the 2.5 or 1.5 centimeter lesions, that he was not looking for cancer in the upper lobe of Mrs. Schmidt's [lung] on the two prior occasions.” In response, Defendants asserted that this evidence lacked relevance because of “the fact that any alleged failure by Dr. Petty to report the lesion on the May 2008 x-ray could not have been the proximate cause of the injuries suffered.”

Judge Barrett made a relevancy determination based on Rules 404(b) and 406 of the North Carolina Rules of Evidence. She ruled that this evidence was inadmissible under Rule 406 because “there's not a sufficient showing of an adequate number of times that the alleged conduct occurred to establish it as a habit.” Judge Barrett further determined that the evidence also lacked relevance under Rule 404(b) because the x-ray was “the final in a series of three x-rays in different years, and ... the conduct is not conduct that proximately caused the decedent's injury....”

Despite its determination that this opinion testimony was not relevant, the trial court nevertheless proceeded to perform an analysis under Rule 403 of the North Carolina Rules of Evidence, weighing the probative value of this evidence against its prejudicial impact on Defendants and the likelihood of confusion of the issues. Judge Barrett concluded that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice to Defendants and that the admission of this evidence would lead to confusion by the jury. She proceeded to grant the motion in limine, ruling that “opinion evidence that the defendant violated the standard of care in May of 2008 ... shall not be admitted,” and “evidence regarding the defendant's failure to note in his report certain findings regarding the decedent's medical condition ... shall be excluded.” Judge Barrett further ruled, however, that the report of the 27 May 2008 x-ray itself was admissible.

The case proceeded to trial on 9 October 2012. At the conclusion of the trial, the jury returned a verdict in favor of Defendants, and the trial court...