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Applicable Standard of Care in North Carolina Medical Malpractice

On Wednesday, we discussed what is required to reasonably expect an expert to qualify under Rule 702, as required by Rule 9(j) for medical malpractice case. Rule 9(j) also requires that the expert be “willing to testify that the medical care did not comply with the applicable standard of care” and under G.S. 90-21.12 the applicable standard of care is “the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.”

So for an expert’s testimony to be relevant, that expert must be able to testify about the applicable standard of care. Does this mean that your choice of experts are limited to doctors who practice in the communities immediately surrounding the occurrence at issue or can a doctor from a completely separate community testify about the applicable standard of care? No, it is not necessary that an expert have actually practiced in the same community as the defendant, but the expert must demonstrate that he is familiar with the standard of care in the same or similar communities.

In Crocker v. Roethling (2009), the North Carolina Supreme Court held that an expert witness who practiced in Phoenix, Arizona could have become sufficiently familiar with the standard of care in Goldsboro, North Carolina by reviewing information about the community and its health care providers and the medical condition at issue so that summary judgment should not have been entered for defendants. Because it was unclear whether the expert had the required expertise, the Court remanded the case to “conduct a voir dire examination of plaintiffs' proffered expert and, based on this evidentiary foundation, to determine the admissibility of the proposed expert testimony.”

In Crocker, the trial court entered summary judgment for defendants because it determined that the testimony of plaintiff’s only expert witness should be excluded, reasoning “that [the expert’s] information about Goldsboro showed that its hospital was different from the one in Phoenix where he practices; that all of the hospitals where [the expert] has practiced are larger than the one in Goldsboro; and that "the Court finds that the [expert] was testifying . . . to a national standard of care and will exclude the evidence of that expert."”  The Court of Appeals affirmed the trial court’s decision because there was not sufficient evidence to support the expert’s assertion that he was “familiar with the prevailing standard of care for handling [the medical condition at issue] in the same or similar community to Goldsboro, North Carolina in 2001.”

The North Carolina Supreme Court reversed the Court of Appeals. To begin its analysis, the Court reviewed the law regarding a plaintiff’s burden in medical malpractice cases and stated that "[o]ne of the essential elements of a claim for medical negligence is that the defendant breached the applicable standard of medical care owed to the plaintiff." A plaintiff meets this burden by satisfying the requirements of G.S. 90-21.12 which states that

the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds 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 under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.

Furthermore, “[p]laintiffs must establish the relevant standard of care through expert testimony.”

The expert signed an affidavit which stated, in part, that

[the expert has] reviewed information about the community of Goldsboro, North Carolina, Wayne County and Wayne Memorial Hospital for the period 2001 and [is] familiar with the size of the population, the level of care available at the hospital, the facilities and the number of health care providers for obstetrics. [The expert is] familiar with the prevailing standard of care for handling [the medical condition at issue] in the same or similar community to Goldsboro, North Carolina in 2001 by a physician with the same or similar training, education and experience as [the defendant doctor].

The Court distinguished three Court of Appeals case which excluded expert witness testimony. The first Court of Appeals involved an expert whose “only stated knowledge of the community pertained to a period more than four years after the alleged injury occurred.” The expert in the second Court of Appeals case "offered no testimony regarding defendants' training, experience, or the resources available in the defendants' medical community” and "the sole information he received or reviewed concerning the relevant standard of care in [the relevant community] was verbal information from plaintiff's attorney regarding `the approximate size of the community and what goes on there.'" The third Court of Appeals case “involved an expert who testified that he knew nothing about the community at issue, but gave an opinion that the standard of care for the particular procedure was the same across the nation.” The Court concluded that these cases were distinguishable because the expert in Crocker produced “an affidavit clearly stating that he was familiar with the training and experience of the defendant physician and with the specific standard of care in the relevant community at the time of the alleged injury.”

The Court went on to hold that the fact that the expert witness referenced a national standard of care during his deposition by stating that he expected “a physician in Phoenix [Arizona] to have the same knowledge as [the defendant doctor] irrespective of their location” did not automatically disqualify that expert. The expert’s affidavit was sufficient to show that he was familiar with the applicable standard of care. If there were questions as to the truth of the affidavit, those go to the credibility of the expert. The Court further stated that

[n]othing in our statutes or case law suggests that a prospective medical expert must produce documentation of his research or attempt to explain to the trial judge how his knowledge about the community enabled him to ascertain the relevant standard of care. Nor do they prescribe any particular method by which a medical doctor must become "familiar" with a given community. Many methods are possible, and our jurisprudence indicates our desire to preserve flexibility in such proceedings. The witness must show only that "other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."

Because the expert’s “familiarity with the relevant standard of care [was] unclear from the paper record”, the Court remanded the case to “conduct a voir dire examination of plaintiffs' proffered expert and, based on this evidentiary foundation, to determine the admissibility of the proposed expert testimony.”

The Court of Appeals has applied Crocker in subsequent cases. In Barringer v. Wake Forest Univ. Baptist Med. Ctr. (2009), the Court of Appeals remanded for voir dire a case which involved an expert who in his deposition was unsure whether the communities with which he was familiar were similar to the community in question, but in the expert’s subsequent affidavit he spoke “in the language of N.C. Gen.Stat. § 90-21.12.” In 2010, the Court of Appeals in Grantham v. Crawford again remanded a case for voir dire where experts shared specific knowledge about the community at issue in their affidavits, but their earlier depositions lacked such specific information.

If you have been injured by medical malpractice, visit www.rflaw.net to get legal help.

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