Appeal by plaintiffs from order entered 20 September 1999 by
Judge Russell J. Lanier, Jr., in New Hanover County Superior Court.
Heard in the Court of Appeals 13 February 2001.
Britt & Britt, P.L.L.C., by William S. Britt, for plaintiff
appellants.
Walker, Clark, Allen, Herrin & Morano, L.L.P., by O. Drew
Grice, Jr., and Robert D. Walker, Jr., for defendant
appellees.
McCULLOUGH, Judge.
Plaintiffs Mr. and Mrs. Henry brought this medical malpractice
action on behalf of themselves and their daughter, Crystal Henry,
seeking recovery for the allegedly negligent prenatal and
obstetrical care rendered by defendants. At trial, plaintiffs
tendered one expert witness: Dr. Chauhan, an OB-GYN specialist
practicing in Spartanburg, South Carolina, and licensed in SouthCarolina and Georgia. After finding that plaintiffs failed to
present competent medical testimony establishing the relevant
standard of care, the trial court granted directed verdict in
defendants' favor. Plaintiffs appealed from this judgment.
Plaintiffs argue that the trial court erred in excluding their
medical expert's testimony as to the applicable standard of care,
and, as a result, subsequently directing verdict in favor of
defendants. We find no error by the trial court and therefore
affirm directed verdict for defendants.
Plaintiffs contend that, although Dr. Chauhan was unfamiliar
with the medical community in Wilmington, North Carolina, where
defendants practice and the alleged malpractice occurred, he could
nevertheless competently testify to the prevailing standard of pre-
natal and obstetrical care in Wilmington because he was familiar
with the applicable national standard of care. Plaintiffs further
argue that Dr. Chauhan was familiar with the standard of care in
Spartanburg, South Carolina, and that this standard would be the
same standard applied at Duke Hospital in Durham, North Carolina,
or at UNC-Hospital in Chapel Hill, North Carolina. Thus, argue
plaintiffs, Dr. Chauhan could testify to the applicable standard of
care in Wilmington even though he was unacquainted with its medical
community.
N.C. Gen. Stat. § 90-21.12 prescribes the relevant standard of
care in a medical malpractice action:
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 . . .
care, the defendant shall not be liable . . .
unless . . . the care of such health careprovider 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.
N.C. Gen. Stat. § 90-21.12 (1999) (emphasis added). 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.
North Carolina Professional Liability Insurance Study Commission,
Report to the Gen. Assembly of 1976, 32 (1976). This Court has
also stated that "[b]y adopting the 'similar community' rule in
G.S. 90-21.12 it was the intent of the General Assembly to avoid
the adoption of a national or regional standard of care for health
providers . . . ." Page v. Hospital, 49 N.C. App. 533, 535, 272
S.E.2d 8, 10 (1980). See also Thompson v. Lockert, 34 N.C. App. 1,
4-5, 237 S.E.2d 259, 261, disc. review denied, 293 N.C. 593, 239
S.E.2d 264 (1977) (specifically rejecting the application of a
general or national standard of care for even a "highly trained and
certified specialist"); Robert G. Byrd, The North Carolina Medical
Malpractice Statute, 62 N.C.L. Rev. 711, 734, 740 (1984) (noting
that the "North Carolina General Assembly's apparent purpose incodifying the same or similar community standard for health care
providers was to foreclose judicial adoption of a regional or
national standard" and that such an adoption would be "inconsistent
with North Carolina case law and statutes").
After reviewing Dr. Chauhan's testimony in its entirety, we
find that the record indicates he failed to testify in any instance
that he was familiar with the standard of care in Wilmington or
similar communities. Although Dr. Chauhan testified that he was
familiar with the national standard of care, there is no evidence
that the national standard of care is the standard practiced in
Wilmington. See Tucker v. Meis, 127 N.C. App. 197, 198, 487 S.E.2d
827, 829 (1997) ("Although [the expert witness] testified that he
was familiar with the standard of care in North Carolina, he failed
to make the statutorily required connection to the community in
which the alleged malpractice took place or to a similarly situated
community."). Moreover, there is no evidence in the record that
the standard of care practiced in Wilmington is the same standard
that prevails in Durham or Chapel Hill, or that these communities
are the "same or similar."
In Tucker, a recent case remarkably similar to the one before
us, plaintiffs sought to recover from defendants physician and
hospital "for an allegedly negligently repaired episiotomy
performed on [plaintiff patient] following child birth in Winston-
Salem, North Carolina." Tucker, 127 N.C. App. at 197, 487 S.E.2d
at 828. The trial court found, and this Court affirmed, that
plaintiffs' expert witness could not establish the standard ofcare, and that therefore directed verdict for defendants was
proper. Because plaintiffs' witness was familiar only with the
standard of care in North Carolina, rather than the standard of
care in Winston-Salem, his testimony was "irrelevant." Tucker, 127
N.C. App. at 199, 487 S.E.2d at 829. The Tucker Court further
noted that the "same or similar communities" standard "allows for
consideration of the effect that variations in facilities,
equipment, funding, etc., throughout the state might have on the
standard of care." Id. Thus, it is clear that 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. The
Tucker Court concluded that "the problem with [plaintiffs' expert
witness'] testimony was not that he had not practiced in North
Carolina; rather, it was his failure to testify that he was
familiar with the standard of care in Winston-Salem or similar
communities." Id.
Plaintiffs nevertheless argue that a uniform standard of care
governs prenatal and obstetrical care to which Dr. Chauhan could
competently testify. Plaintiffs note that, "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[.]'" Marley v.
Graper, 135 N.C. App. 423, 428, 521 S.E.2d 129, 134 (1999) (quoting
Haney v. Alexander, 71 N.C. App. 731, 736, 323 S.E.2d 430, 434
(1984), cert. denied, 313 N.C. 329, 327 S.E.2d 889 (1985)), cert.denied, 351 N.C. 358, 542 S.E.2d 214 (2000). This Cou
rt, however,
has recognized very few "uniform procedures" to which a national
standard may apply, and to which an expert may testify. See, for
example, Haney, 71 N.C. App. at 736, 323 S.E.2d at 434 (allowing
expert medical witness to testify that taking and reporting vital
signs of a deteriorating patient was the same for nurses in
accredited hospitals across the country); Page, 49 N.C. App. at
536, 272 S.E.2d at 10 ("nursing practices in connection with
patients' use of a bedpan are so routine and uncomplicated that the
standard of care should not differ appreciably between . . .
neighboring counties").
The case before us concerns the prenatal care of a patient
with gestational diabetes and the delivery of an infant suffering
from shoulder dystocia. Such a scenario involves medical procedures
considerably more complicated than the taking of vital signs or the
placement of bedpans. Accordingly, a national standard cannot be
applied to defendants' conduct.
Furthermore, plaintiffs' reliance upon Marley is misplaced.
In Marley, plaintiffs contended that the trial court erred in
allowing testimony by defendants' expert witness, who stated that
the defendant physician "met the standard of care for plastic
surgery not only in [Greensboro] but anywhere in the United
States." Marley, 135 N.C. App. at 430, 521 S.E.2d at 134 (emphasis
added). Affirming the trial court, this Court stated that
"[a]lthough the [expert] witness did not testify that he was
familiar with the standard of care for Greensboro, the testimony hedid provide obviated the need for such familiarity." Id<
/i>. (emphasis
added). The Court explained that, because the expert testified
that defendant's performance "met the highest standard of care
found anywhere in the United States," the Court reasoned that "if
the standard of care for Greensboro matched the highest standard in
the country, [defendant's] treatment of [plaintiff] met that
standard; if the standard of care in Greensboro was lower,
[defendant's] treatment of [plaintiff] exceeded the area standard."
Marley, 135 N.C. App. at 430, 521 S.E.2d at 134. Thus, the
testimony was "sufficient to meet the requirements of section 90-
21.12," and the trial court did not err in allowing the witness to
testify. Id.
In the instant case, plaintiffs failed to establish that their
expert was familiar with the standard of care practiced in
Wilmington or a similar community. Further, unlike Marley, Dr.
Chauhan would have testified that defendants failed to meet the
national standard of care, creating an obvious need for the
establishment of the applicable standard through proper testimony.
Even if Dr. Chauhan was familiar with the standard of care in
Chapel Hill or Durham, there was no evidence that a similar
standard of care prevailed in Wilmington. "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." Tucker, 127 N.C. App. at 198,
487 S.E.2d at 829. To adopt plaintiffs' argument, this Court would
have to ignore the plain language of N.C. Gen. Stat. § 90-21.12 andits evidentiary requirement that the "similar community"
rule
imposes, as well as well-established case law. This we decline to
do. See Baynor v. Cook, 125 N.C. App. 274, 277, 480 S.E.2d 419,
421, disc. review denied, 346 N.C. 275, 487 S.E.2d 537 (1997)
(rejecting plaintiff's assertion that our law "allows a doctor's
conduct to be judged against a national standard of care when the
standard of care is the same across the country"); In re Dailey v.
Board of Dental Examiners, 60 N.C. App. 441, 443, 299 S.E.2d 473,
475 (1983) (noting that "[i]t is clear from the wording of [N.C.
Gen. Stat. § 90-21.12] that the test is not that of a statewide
standard of health care"); Tucker, 127 N.C. App. at 197, 487 S.E.2d
at 829; Thompson, 34 N.C. App. at 4, 237 S.E.2d at 261.
As Dr. Chauhan was unfamiliar with the relevant standard of
care, his opinion as to whether defendants met that standard is
unfounded and irrelevant, and thus we hold that the trial court
properly excluded Dr. Chauhan's testimony. There being no other
expert witnesses to establish defendants' negligence, defendants
were entitled to a directed verdict as a matter of law. In light
of our holding, we need not address further argument by defendants.
The trial court is hereby
Affirmed.
Judge GREENE concurs with separate opinion.
Judge HUDSON dissents.
=============================
GREENE, Judge, concurring.
I agree with Judge McCullough that Dr. Chauhan's testimony
failed to establish Dr. Chauhan was familiar with the standard of
practice of health care providers situated in Wilmington or
“similar communities” at the time of the alleged negligent acts and
that a directed verdict was, therefore, properly granted in favor
of defendants. I write separately to emphasize that testimony
regarding a uniform standard of care may be used to establish the
applicable standard of care in a specific community only when the
alleged negligent treatment of the plaintiff occurred in an
accredited hospital.
In Rucker v. High Point Mem'l Hosp., Inc., 285 N.C. 519, 206
S.E.2d 196 (1974), the North Carolina Supreme Court held that an
expert's testimony regarding the standard of care for the treatment
of gunshot wounds in accredited hospitals in the United States was
sufficient to establish the applicable standard of care for such
treatment in an accredited hospital located in High Point. Id. at
527-28, 206 S.E.2d at 201-02. The Rucker court emphasized it was
“not dealing with a local country doctor[,]” but “with a [d]uly
accredited hospital and a member of its staff.” Id. at 527, 206
S.E.2d at 201. Thus, the teaching of Rucker is limited to cases
involving the standard of care practiced in accredited hospitals
when a plaintiff's alleged negligent treatment took place in an
accredited hospital. Indeed, this Court has held that the teaching
of Rucker is “applicable only to the standard of care of
'accredited hospitals' in the treatment of a wound, the treatmentfor which was shown to be standard in 'accredited hospitals'
throughout the United States.” Thompson v. Lockert, 34 N.C. App.
1, 4, 237 S.E.2d 259, 261, disc. review denied, 293 N.C. 593, 239
S.E.2d 264 (1977). Admittedly, this Court has stated that “if the
standard of care for a given procedure is 'the same across the
county, an expert witness familiar with that standard may testify
despite his lack of familiarity with the defendant's community.'”
Marley v. Graper, 135 N.C. App. 423, 428, 521 S.E.2d 129, 134
(1999) (quoting Haney v. Alexander, 71 N.C. App. 731, 736, 323
S.E.2d 430, 434 (1984), cert. denied, 313 N.C. 329, 327 S.E.2d 889
(1985)), cert. denied, 351 N.C. 358, --- S.E.2d --- (2000). The
cases relied upon by the Marley court in stating this general rule,
however, are cases involving the standard of care in accredited
hospitals when the plaintiff's alleged negligent treatment took
place in an accredited hospital. Id. The general rule stated in
Marley is thus limited to cases involving the standard of care for
treatment that takes place in an accredited hospital.
Additionally, as noted by the majority, Marley involved the
relevancy of testimony by a defendant's expert that the defendant's
treatment of the plaintiff met the highest standard of care for
such treatment nationwide. Id. at 430, 521 S.E.2d at 134. Thus,
the issue addressed in Marley is distinguishable from the issue
before this Court in the case sub judice.
The dissent appears to agree that the applicable standard of
care under N.C. Gen. Stat. § 90-21.12 is the standard of carepracticed in “the same or similar communities” where the act gi
ving
rise to the plaintiff's cause of action occurred. The dissent
would, nevertheless, permit “the jury to consider factual evidence
of the existence of a national standard of care in the process of
determining the standard of care in the community in question.”
The dissent states “[s]uch evidence is clearly some evidence of the
standard of care in the community in question.” I disagree. Under
section 90-21.12, the relevant inquiry is what standard of care is
actually practiced in the community in question or “similar
communities.” The existence of a national standard of care has no
relevance to this inquiry absent testimony the national standard of
care is actually practiced in the community or communities in
question. A jury, therefore, would be unable to find as fact based
solely on testimony regarding the existence of a national standard
of care that the national standard of care is actually practiced in
the relevant community or communities. Additionally, the dissent's
reliance on Baynor v. Cook, 125 N.C. App. 274, 480 S.E.2d 419,
disc. review denied, 346 N.C. 275, 487 S.E.2d 537 (1997), is not
persuasive. The issue presented in Baynor was whether the
plaintiff was entitled to a jury instruction regarding the
existence of a national standard of care, and this Court held the
plaintiff was not entitled to such an instruction. Id. at 277, 480
S.E.2d at 421. In Baynor, the issue of whether the trial court
properly allowed the plaintiff's experts to testify as to the
existence of a national standard of care, without testimony that
the national standard of care was actually practiced in therelevant community or communities, was not before this Court.
============================
HUDSON, Judge dissenting.
In the case at bar, plaintiffs' expert witness was prepared to
testify at trial that the standard of care for prenatal treatment
in Wilmington, North Carolina in 1990 was the same as the standard
of care for prenatal treatment in any other location in the United
States, and that he was familiar with this standard. He was
further prepared to testify that defendants failed to employ
certain fundamental medical procedures in their rendering of
prenatal care. However, the trial court excluded this testimony at
trial on the grounds that the expert had testified during his
deposition that he did not know anything about Wilmington, North
Carolina, the city in which defendants practice. Because his
testimony was excluded in large part, the trial court granted
defendants' motion for a directed verdict. The issues on appeal
are (1) whether the trial court erred in excluding the expert's
testimony at trial, and (2) whether such testimony, had it been
admitted, would have satisfied the “same or similar” community
standard pursuant to N.C.G.S. § 90-21.12 (1999). I believe the
trial court erred in excluding the testimony, and that the
testimony would have satisfied the statute.
In medical malpractice actions against individual health care
providers, G.S. § 90-21.12 requires that testimony must be
presented concerning the standard of care in “the same or similar
communities.” See Thompson v. Lockert, 34 N.C. App. 1, 5, 237S.E.2d 259, 261 (1977) (clarifying distinction between act
ions
against individual “health care providers,” including “physicians
and surgeons,” and actions against accredited hospitals). I
believe this statutory requirement may be satisfied in at least
three ways. It is clear that the statute is satisfied where an
expert witness testifies that he is familiar with the standard of
care in the community in question as a result of practicing in that
community. It is also clear that the statute is satisfied where an
expert witness testifies that he is familiar with the standard of
care in the community in question as a result of practicing in a
similar community. In addition, I believe the statute is satisfied
where an expert witness testifies that he is familiar with the
standard of care in the community in question as a result of the
existence of, and his familiarity with, a standard of care for the
treatment in question that is uniform across the country, and which
does not vary depending upon the community.
This third approach to establishing the applicable standard of
care in actions against individual health care providers may, at
first blush, appear to be the equivalent of applying a national
standard of care. And, as the majority aptly notes, it is clear
that the legislature, in codifying the same or similar community
approach in G.S. § 90-21.12, specifically intended not to adopt a
national standard of care. However, I believe there is a crucial,
albeit subtle, distinction between adopting a national standard of
care as a matter of law, and allowing a party to present evidence
of a national standard of care as a matter of fact. Without
adopting a national standard of care as a matter of law, I believeG.S. § 90-21.12 permits the jury to consider factual evidence of
the existence of a national standard of care in the process of
determining the standard of care in the community in question.
This distinction was addressed in Baynor v. Cook, 125 N.C.
App. 274, 480 S.E.2d 419 (1997), a medical malpractice action
against individual doctors and their private partnerships. In
Baynor, the plaintiff presented two expert witnesses who testified
that there was a uniform standard of care across the country for
the diagnosis and treatment of a thoracic aortic rupture (TAR), and
that the defendant doctor, located in Beaufort County, had deviated
from this standard of care. The defendants presented multiple
expert witnesses who testified that they were familiar with the
standard of care of an emergency room physician in Beaufort County,
and that the defendant doctor had not deviated from this standard
of care. Id. at 275-76, 480 S.E.2d at 420. At the close of the
trial, the plaintiff requested the trial court to instruct the
jurors that if they found a national standard of care existed for
the diagnosis and treatment of TARs, they could hold the defendants
to this national standard of care in determining whether the
defendants had been negligent. Id. at 276, 480 S.E.2d at 420. The
trial court denied this request and, instead, instructed the jury
on the standard of care as mandated by G.S. § 90-21.12 and set
forth in the Pattern Jury Instructions for North Carolina. Id. On
appeal the plaintiff argued that the trial court committed
reversible error in denying her request for an instruction on the
national standard of care. We concluded that the trial court'sdenial of the plaintiff's request was not error because North
Carolina has not adopted a national standard of care as a matter of
law. Id. However, we also noted that
the jury heard testimony that the community
standard in Beaufort County for the treatment
of TARs is the same across the country. The
trial court properly allowed plaintiff's
experts to testify that based on their
familiarity with the national standard of care
as related to a common medical issue (TARs),
this standard of care did not vary depending
on the community.
Id. at 278, 480 S.E.2d at 421 (emphasis added).
These comments clarify that a plaintiff may satisfy G.S. § 90-
21.12 by offering the testimony of an expert who asserts that (1)
the standard of care for the treatment in question is uniform
across the country and does not vary depending upon the community,
and (2) he is familiar with this national standard. Such evidence
is clearly some evidence of the standard of care in the community
in question. When this type of evidence is offered by a
plaintiff, I believe it should be presented to the jury for
consideration, as it was in Baynor, and not excluded by the trial
court. This comports with the language of the statute itself,
which provides that a defendant in an action for medical
malpractice shall not be liable “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
applicable standard of care. G.S. § 90-21.12 (emphasis added).
The statute expressly contemplates a determination by the jury,
rather than the trial court, as to whether the greater weight ofthe evidence presented by the parties establishes a breach of the
applicable standard of care.
Furthermore, admitting such evidence for consideration by the
jury is not the same as adopting a national standard of care as a
matter of law. If our State had adopted a national standard of
care as a matter of law, the standard of care actually practiced in
a defendant's community would be irrelevant to the legal analysis,
even if that standard of care were lower than the national standard
of care. Thus, a local doctor could be found negligent even where
his treatment conformed to the standard of care practiced among the
doctors in his community. On the other hand, the same or similar
community approach, which we have adopted in North Carolina,
recognizes that there are often differences in the standards of
care practiced in different communities. Under the same or similar
community approach, these differences are relevant and central to
the legal analysis because the jury must ultimately determine the
applicable standard of care in each particular case. However, in
making this determination, there is no reason why a jury should not
be allowed to consider factual evidence of a national standard of
care for the medical procedure in question.
Here, the named defendants are two individual doctors and
their private partnership association. At trial, plaintiffs
offered the expert medical testimony of Dr. Sunseet P. Chauhan.
Dr. Chauhan had been deposed by defendants prior to trial. At the
deposition, Dr. Chauhan testified that the only information he had
about the medical community in which defendants practiced was the
fact that it is located in the United States of America. He alsotestified that he had not undertaken a comparison of this community
with any other community with which he was familiar. However, Dr.
Chauhan testified that the standard of care in Wilmington, North
Carolina in 1990 for the type of prenatal care at issue was the
same as that in any other location in the United States, and that
this standard did not vary depending upon the community.
Prior to trial, the court denied a motion by defendants to
exclude the testimony of Dr. Chauhan based on his lack of
familiarity with the local community in question. At trial,
counsel for defendants noted that plaintiffs had not supplemented
Dr. Chauhan's deposition testimony following the deposition, and
therefore, pursuant to N.C.R. Civ. P. 26, requested that the trial
court limit Dr. Chauhan's testimony to information contained in his
deposition. The trial court indicated that it would rule on any
objections to Dr. Chauhan's testimony as they were made during the
trial.
Dr. Chauhan took the stand and testified before the jury that
he is board certified in the areas of obstetrics, gynecology, and
maternal-fetal medicine, with a speciality in high-risk pregnancy.
He testified that he practices in Spartanburg, South Carolina, and
teaches medical residents from the Medical University of South
Carolina located in Charleston. Dr. Chauhan was admitted as an
expert witness. The following questioning transpired during the
direct examination of Dr. Chauhan:
Q. [A]re you familiar with the standard of
care for board certified
obstetricians/gynecologists practicing in
Wilmington, North Carolina, or similar
communities, in December of 1990?
A. Yes, sir. MR. WAL
KER: Objection, deposition.
THE COURT: Okay. I'm going to
sustain the objection.
. . .
Q. All right. In terms of 1990, do you have
an opinion . . . as to whether or not the
standards of practice for board certified
physicians in Wilmington, or similar
communities, in 1990 would have been the same
in not only Wilmington but throughout North
Carolina?
MR. WALKER: Objection. Deposition,
if Your Honor please.
THE WITNESS: Yes, sir.
THE COURT: Sustained.
. . .
Q. Doctor, do you have an opinion . . . as to
whether or not the standards of practice for
board certified OB/GYN physicians practicing
in Wilmington, North Carolina . . . would be
the same as that of a board certified
physician practicing at Duke or Chapel Hill,
or anywhere in North Carolina in 1990?
MR. WALKER: Objection, if Your Honor
please.
THE WITNESS: Yes.
MR. WALKER: Not only 26 but the
deposition itself.
THE COURT: Overruled.
Q. Do you have such an opinion?
A. Yes, I do.
Q. What is that opinion?
MR. WALKER: Objection.
THE COURT: I'm going to sustain
that.
Q. Doctor, would those standards be the same
as the standards of board certified physicians
practicing in Spartanburg or in Georgia in
1990?
MR. WALKER: Objection.
THE COURT: Overruled.
THE WITNESS: Yes, it would be. . . .
Q. Doctor, state whether or not the standards
of practice for the board certified
obstetricians/gynecologists in [Portsmouth
Naval Hospital] would have been the same at
Camp Lejeune in 1990, to the best of your
knowledge?
MR. WALKER: Objection.
THE COURT: Overruled.
THE WITNESS: Yes, they would be.
. . .
Q. Based on your knowledge of those standards,
would those standards, in your opinion, beapplicable to Wilmington, North Carolina, in
1990?
MR. WALKER: Objection.
THE COURT: Sustained. He's already
testified he doesn't know a thing
about Wilmington.
The jury was then excused from the courtroom, and the trial
court judge explained his perspective to the parties:
[H]ow can you compare an apple if the only
thing you've looked at is oranges? I mean,
from what I read in this deposition, this
gentleman has never been to Wilmington, he'd
never talked with anybody from Wilmington at
the time of his deposition, that he didn't
know anything about Wilmington at the time of
the deposition, and then, subsequent to that,
there's been no supplementation of his answers
from the deposition as were requested or
required. That's where I see the problem.
In the absence of the jury, Dr. Chauhan was called back to the
stand for voir dire questioning, at which time the following
testimony transpired:
Q. Dr. Chauhan, how can you say you're
familiar with the standards of care in
Wilmington or similar communities if you have
not done a comparison with any communities
that you're familiar with versus Wilmington?
. . .
A. The reason is, because the thing I found
what was lacking in the care, or below the
standard of care, is so fundamental it's
applicable everywhere. . . . These are simple
guidelines which everyone should follow across
the country.
The trial court took the position that because Dr. Chauhan had
testified during his deposition that he knew nothing about
Wilmington, and because plaintiffs had not supplemented this
testimony following the deposition, Dr. Chauhan could not testify
as to his familiarity with the standard of care for board certified
obstetricians and gynecologists practicing in Wilmington in 1990. I believe the exclusion of this testimony by the trial court was
based upon a misunderstanding of the law, and constitutes
reversible error. The applicable standard of care may be
established by any of the three methods discussed above, and Dr.
Chauhan was prepared to establish the applicable standard of care
by testifying as to his familiarity with a national standard of
care for prenatal treatment that does not vary depending on the
community. An expert witness need not be familiar with the
particular community in question. He need only be familiar with
the applicable standard of care in that community. See Warren v.
Canal Industries, 61 N.C. App. 211, 215-16, 300 S.E.2d 557, 560
(1983) (holding, in action against a private clinic and an
individual doctor, that it is not necessary for the witness
testifying as to the standard of care to have actually practiced in
the same community as the defendant as long as the witness is
familiar with the applicable standard of care). This principle was
recently applied in Marley v. Graper, 135 N.C. App. 42321 S.E.2d
129 (1999), cert. denied, 351 N.C. 358, 542 S.E.2d 214 (2000).
Marley involved a medical malpractice action against individual
doctors. Therefore, although the concurring opinion is correct in
noting that the cases cited in Marley for this proposition may have
involved accredited hospitals, the holding in Marley itself is
clear precedent for the application of this principle to actions
against individual doctors. I do not believe that Marley can be
distinguished simply on the grounds that it involved the testimony
of a defendant's expert, rather than a plaintiff's expert. Thereis no logical reason to treat the testimony of a defendant's expert
witness differently than the testimony of a plaintiff's expert
witness in terms of the type of evidence required by G.S. § 90-
21.12 for establishing the applicable standard of care.
As the majority opinion points out, where an expert testifies
regarding a uniform standard of care across the country, it is
vital that he also specifically testify that he is familiar with
the standard of care in the community in question or similar
communities based on his assertion that the uniform standard is, in
fact, the standard practiced in the community in question. See
Tucker v. Meis, 127 N.C. App. 197, 487 S.E.2d 827 (1997) (holding
that this requirement applies to cases in which an expert bases his
opinion upon either a purported state-wide standard of care or a
purported national standard of care); Howard v. Piver, 53 N.C. App.
46, 52, 279 S.E.2d 876, 880 (1981). In Tucker, we described this
necessary element as “the statutorily required connection” between
a purported uniform or state-wide standard of care and the same or
similar community rule mandated by G.S. § 90-21.12. Id. at 198-99,
487 S.E.2d at 829. However, I disagree with the assertion that Dr.
Chauhan “failed to testify in any instance that he was familiar
with the standard of care in Wilmington or similar communities.”
Dr. Chauhan testified during his deposition that he was familiar
with the applicable standard of care in Wilmington in 1990. His
testimony was based on his assertion that the standard of care for
prenatal treatment in Wilmington, North Carolina in 1990 was the
same as that in any other location in the United States, and thathe was familiar with this uniform standard. This is precisely the
“statutorily required connection” discussed in Tucker. In my view,
the only reason this testimony was not admitted at trial is because
the trial court incorrectly ruled that Dr. Chauhan's deposition
testimony precluded him from testifying at trial as to his
familiarity with the standard of care for prenatal treatment in
Wilmington in 1990.
Because plaintiffs could not establish the applicable standard
of care without the excluded testimony of Dr. Chauhan, the trial
court granted defendants' motion for directed verdict at the close
of plaintiffs' evidence. I believe this constitutes reversible
error as well. Had Dr. Chauhan's testimony been admitted at trial,
as I believe it should have been, defendants would not have had
grounds for a directed verdict in their favor. In considering a
motion for directed verdict, the question presented is whether the
evidence, viewed in the light most favorable to the non-movant, is
sufficient to submit the case to the jury. Clark v. Perry, 114
N.C. App. 297, 304, 442 S.E.2d 57, 61 (1994). Where an expert
testifies that the standard of care for a particular type of
treatment is uniform across the country and does not vary depending
on the community, and further testifies that he is familiar with
this uniform standard of care, such testimony is admissible and
should be considered by the jury. See Baynor, 125 N.C. App. at
278, 480 S.E.2d at 421. This is especially the case where the
nature of the treatment in question is relatively simple. See
Wiggins v. Piver, 276 N.C. 134, 138, 171 S.E.2d 393, 395-96 (1970);Howard, 53 N.C. App. at 51-52, 279 S.E.2d at 880. In the
instant
case, Dr. Chauhan's testimony indicated that the alleged negligence
by defendants included the failure to undertake certain medical
procedures that are considered basic and fundamental in the area of
prenatal treatment.
For the reasons stated herein I respectfully dissent. I would
reverse the trial court's order granting defendants' motion for a
directed verdict. I would remand for a new trial, and hold that
Dr. Chauhan's testimony as to his familiarity with the standard of
care for prenatal treatment in Wilmington in 1990 is admissible at
trial.
*** Converted from WordPerfect ***
