Wallace v. Maxwell

• Decision Date: 17 March 2020
• Docket Number: No. COA19-291,COA19-291
• Citation: 838 S.E.2d 696 (Table)
• Parties: Andrea R. WALLACE, Plaintiff, v. Keith M. MAXWELL, MD; Southeastern Sports Medicine, PLLC ; Southeastern Sports Medicine, PLLC d/b/a Hendersonville Sports Medicine and Rehabilitation ; and Southeastern Sports Physician Services, PLLC, Defendants.
• Court: North Carolina Court of Appeals

838 S.E.2d 696 (Table)

Andrea R. WALLACE, Plaintiff,

v.Keith M. MAXWELL, MD; Southeastern Sports Medicine, PLLC ; Southeastern Sports Medicine, PLLC d/b/a Hendersonville Sports Medicine and Rehabilitation ; and Southeastern Sports Physician Services, PLLC, Defendants.

No. COA19-291

Court of Appeals of North Carolina.

Filed: March 17, 2020

Fred D. Smith, Jr., P.C., by Jeremy Swindlehurst and Fred. D. Smith, Jr., for plaintiff-appellant.

Roberts & Stevens, PA, Asheville,, by Phillip T. Jackson, James W. K. Wilde, and Ann-Patton Hornthal, for defendants-appellees.

BERGER, Judge.

Andrea R. Wallace ("Plaintiff") appeals from an order granting directed verdict in favor of Keith M. Maxwell, M.D. ("Dr. Maxwell"); Southeastern Sports Medicine, PLLC; Southeastern Sports Medicine, PLLC d/b/a Hendersonville Sports Medicine and Rehabilitation; and Southeastern Sports Physician Services, PLLC (collectively, "Defendants"). On appeal, Plaintiff contends the trial court erred by imposing a special rule of proximate cause and by excluding Dr. Robert Banco's ("Dr. Banco") proposed testimony regarding causation. For the reasons explained herein, we uphold the trial court's order granting directed verdict in favor of Defendants.

Factual and Procedural Background

On April 23, 2012, Plaintiff was admitted to Park Ridge Hospital for severe back pain and weakness in her legs. Plaintiff was seen by Dr. Maxwell the next day. According to Dr. Maxwell's notes, during their consultation they "discussed her options" and Plaintiff "elected to proceed with a micro discectomy

." Plaintiff was "cautioned that she was likely to get no relief in her back pain because of her preexisting multilevel degenerative disc disease and that some of her leg pain would not be resolved because of preexisting diabetic neuropathy."

The following day, April 25, 2012, Plaintiff was taken into surgery and Dr. Maxwell performed spine surgery on Plaintiff, specifically, a micro laminectomy

and discectomy. The surgery was intended to reduce decompression of the spinal nerve roots. After surgery, Plaintiff informed the hospital that she had bowel and bladder dysfunction and motor and sensation deficits in her lower extremity.

On April 26, 2012, Plaintiff underwent an MRI which revealed that she had herniation. Plaintiff was diagnosed with cauda equina syndrome

complete ("CES-R" or "CES-Complete"), which includes symptoms consistent with Plaintiff's complaints. Dr. Banco testified:

The term cauda equina syndrome

has been used to describe the signs and symptoms found in patients with compressive neuropathy of multiple lumbar and sacral roots. Cauda equina syndrome can have grave long-term consequences for the patient. These include urinary and bowel dysfunction and varying degrees of motor and sensory deficits in the lower extremities. Compression of the cauda equina is usually caused by extradural space occupying the lesions resulting from disc protrusions, tumors, trauma, infection, or spinal stenosis. Ischemia is also recognized as a cause of CES.

CES can either be complete or incomplete. The main difference between the two is that patients who are diagnosed with CES incomplete ("CES-I"), and have surgical treatment, have better outcomes than patients who are diagnosed with CES-Complete ("CES-R"), and have surgical treatment.

Following the diagnosis of CES-R, Plaintiff was taken into surgery and Dr. Maxwell performed a lumbar laminectomy

and removed recurrent disc fragments. After this second surgery, Plaintiff continued to have bowel, bladder, and motor dysfunction. Plaintiff was transferred from Park Ridge Hospital to Mission Hospital on April 30, 2012. On May 4, 2012, Dr. Herbery Gooch ("Dr. Gooch") performed a third surgery on Plaintiff's lumbar spine. Plaintiff continues to have bowel and bladder dysfunction and bilateral paraparesis since Dr. Gooch's surgery.

On August 8, 2013, Plaintiff filed a medical malpractice complaint against Defendants. Plaintiff filed a notice of voluntary dismissal on August 6, 2015. The medical malpractice complaint in the present action was filed in November 2015. On March 17, 2016, a consent discovery scheduling order ("DSO") was entered, in which the trial court set a deadline for parties to identify any and all expert witnesses to be called to testify at trial.

On April 28, 2016, Plaintiff identified Dr. Banco as her expert witness on standard of care and causation. Dr. Banco's first deposition occurred on July 20, 2016. After this first deposition, Plaintiff filed three separate supplemental designations of expert witnesses pursuant to the DSO, and Dr. Banco was deposed three additional times. Dr. Banco's fourth and final deposition took place on March 9, 2018.

Prior to the final deposition, Defendants filed a Motion in limine to Exclude Dr. Banco's Causation Testimony ("Defendants' Motion in limine "). On October 6, 2017, Defendants' Motion in limine was heard and the parties agreed that the Rule 702 motion would be reserved until trial when the expert in question could be subject to voir dire by counsel. Trial was scheduled to begin on October 23, 2017 but it was continued to April 9, 2018.

A voir dire hearing of Dr. Banco began on April 17, 2018. During voir dire , Dr. Banco testified that Dr. Maxwell's care and treatment of Plaintiff up to her second surgery met the applicable standard of care. Dr. Banco was asked if he had "an opinion to a reasonable degree of medical probability as to the cause of [Plaintiff's] permanent neurologic deficits of neurogenic bowel

and bladder and bilateral paraparesis?" In response, he stated: "[Plaintiff's] resulting injuries are from consistent and persistent compression of a central disc herniation causing damage to her cauda equina." He further stated the compression persisted "because of an inadequate decompression, inadequate laminectomy" by Dr. Maxwell. He further opined that the standard of practice to treat any compression in Plaintiff's spine causing CES would have been to perform a wide laminectomy. With regard to causation, he testified that had Dr. Maxwell performed a wide laminectomy during the second surgery, Plaintiff would have had a 70 to 80% chance of full recovery of bowel, bladder, and motor function ("Banco Causation Opinion").¹ Dr. Banco testified he relied on medical literature regarding CES in making his Banco Causation Opinion.² Both parties questioned him on the medical literature he purportedly relied on.

In an order filed July 10, 2018, the trial court concluded that Dr. Banco's expert testimony was "unreliable" and ordered it excluded. In support of its conclusion, the trial court found, in pertinent part:

144. None of the peer reviewed articles directly support Dr. Banco's Causation Opinion. ... [N]one of the peer reviewed articles presented during the voir dire directly support that a patient with CES-R and who is insulin

dependent and hypertensive would have a greater than 50% of a full recovery of bowel, bladder, and motor function if a wide laminectomy is performed within a few hours of the diagnosis of CES-R.

145. Dr. Banco's Causation Opinion is not supported within the medical literature that was reviewed during the voir dire of Dr. Banco.

146. The medical literature on CES outcomes and timing of surgery and/or type of surgery is evolving, inconsistent and confusing.

147. Use of the medical literature to support the Banco Causation Opinion requires supposition and speculation, including supposition and speculation about the meaning of the terminology used within the medical literature.

148. The medical literature upon which Dr. Banco relies does not address Plaintiff's comorbidities of insulin dependent diabetes and hypertension in relationship to outcome with sufficient specificity to support the Banco Causation Opinion.

That same day, July 10, 2018, the trial court filed an order granting a directed verdict in favor of Defendants based on the following relevant findings:

2. The Court, following the voir dire examination of Dr. Robert Banco, granted the Defendants' Motion in Limine to Exclude Dr. Banco's Causation Testimony. The Court's decision was issued from the bench on April 17, 2018. That Order from the bench excluding the causation testimony of Dr. Banco has been rendered to writing is the subject of a separate order entered in this matter.

3. Following the Court's ruling to exclude the causation testimony of Dr. Banco, counsel for Plaintiff represented to the Court that the only evidence the Plaintiff had to offer on the issue of proximate cause in this action was that evidence which the Court had excluded pursuant to the ruling referenced in Finding of Fact No. 2.

4. Following the Court's ruling to exclude the causation testimony of Dr. Banco, the Court inquired as to Plaintiff's next witness and if the Plaintiff would present additional evidence. At that time, Plaintiff's counsel indicated that Plaintiff would not put on any additional evidence because the only evidence Plaintiff had to offer on the element of proximate cause was the excluded causation testimony of Dr. Banco. The Court therefore finds that the Plaintiff cannot present competent and admissible evidence on the issue of proximate cause.

9. Because the Plaintiff cannot satisfy the element of proximate cause, the Defendants are entitled to have a directed verdict entered in their favor on all claims asserted by the Plaintiff.

It is from this order that Plaintiff appeals. On appeal, Plaintiff argues the trial court should not have granted a directed verdict in Defendants' favor because it erroneously imposed a special rule of proximate cause in deciding whether Dr. Banco's testimony was sufficient to establish proximate cause and erroneously excluded Dr. Banco's testimony on proximate cause.

Analysis

We review a trial court's order granting a motion for directed verdict de novo . Day v. Brant , 218 N.C. App. 1, 4, 721 S.E.2d 238, 242 (2012). "The Court must determine whether, upon examination of all the...