A plaintiff in a medical malpractice action must show that the defendant health care provider failed to meet the relevant standard of care, which failure caused injury to the plaintiff. G.S. 90-21.12(a) requires that
in any medical malpractice action as defined in G.S. 90-21.11(2)(a), 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; or in the case of a medical malpractice action as defined in G.S. 90-21.11(2)(b), 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 action or inaction of such health care provider was not in accordance with the standards of practice among similar health care providers 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.
In order to show that a defendant health care provider failed to meet the standard of care, the plaintiff must first establish what the standard of care is. The standard of care is established through expert testimony. The testifying expert must have sufficient familiarity with the standard of care in the relevant community or similar communities. Often a key issue in allowing an expert’s testimony regarding the standard of care is ensuring that the expert is testifying to the relevant standard of care, rather than a national standard of care. The North Carolina Court of Appeals has noted that
The report of a study commission recommending adoption of N.C. Gen.Stat. § 90-21.12 makes clear that the Legislature intended to avoid a national standard of care for North Carolina health care providers:
The North Carolina Supreme Court has gone only as far as a "same or similar communities" standard of care, and the Commission recommends that this concept be enacted into the General Statutes to avoid further interpretation by the Supreme Court which might lead to regional or national standards for all health care providers.
Henry v. Southeastern OB-Gyn Associates (2001)
Because the legislature adopted the “same or similar communities” language, the court of appeals has stated that “it was the intent of the General Assembly to avoid the adoption of a national or regional standard of care for health providers." This standard "allows for consideration of the effect that variations in facilities, equipment, funding, etc., throughout the state might have on the standard of care." Furthermore, “the concept of an applicable standard of care encompasses more than mere physician skill and training; rather, it also involves the physical and financial environment of a particular medical community.”
To be familiar with the standard of care in the same or similar communities, a testifying expert does not have to practice in the relevant community. The expert must only demonstrate sufficient familiarity with the standard of care in the same or similar communities. The North Carolina Supreme Court has held that the general statutes do not “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.” Therefore, in Crocker v. Roethling (2009), the Court stated that an expert could become sufficiently familiar with the relevant community by reviewing information about the relevant community and the health care provider’s background and practice.
Typically, a testifying expert must demonstrate his familiarity with a certain community’s standard of care, and then show how that community is similar to the relevant community at issue. In Henry, the court of appeals held that an expert who was familiar with the standard of care in Spartanburg, South Carolina, which was arguably the same as the standard applied at Duke Hospital and UNC-Hospital, could not testify to the standard of care in Wilmington because there was no evidence that Wilmington was similar to these communities. The court noted that “N.C.G.S. § 90-21.12 mandates that the relevant standard of care is that of the community where the injury occurred (or similar communities) and not that of the state as a whole.”
The mere mention of a “national standard of care” by a testifying expert is not fatal to establishing the expert’s sufficient familiarity. Instead, the North Carolina Supreme Court noted in Crocker that
the critical inquiry is whether the doctor's testimony, taken as a whole, meets the requirements of N.C. Gen.Stat. § 90–21.12. In making such a determination, a court should consider whether an expert is familiar with a community that is similar to a defendant's community in regard to physician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community.
In certain cases, an expert does not have to be familiar with the community in which the hospital in located, but can be familiar with the hospital’s reputation. For example, in Higginbotham v. D’Amico (2013), the court of appeals held that an expert familiar with the standard of care at other “top level ... teaching hospitals in urban settings” and “other major university hospitals” could testify to the standard of care at Duke Hospital, even though he was not familiar with the community of Durham. The court of appeals stated that “[i]t cannot be reasonably maintained that the standard of care at Duke is better approximated by comparison to community hospitals in Durham or similarly sized cities than to other renowned, “top level teaching hospitals” attached to major universities.”
There is a recognized exception to the rejection of a national standard of care: "if the standard of care for a given procedure is `the same across the country, an expert witness familiar with that standard may testify despite his lack of familiarity with the defendant's community[.]'" In Henry, the court of appeals noted that the court had previously “recognized very few "uniform procedures" to which a national standard may apply, and to which an expert may testify,” such as the placement of bed pans and taking of vital signs. However, most medical malpractice actions are “considerably more complicated” and typically a national standard cannot be applied.
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