In two opinions issued last week the North Carolina Court of Appeals excluded expert witnesses and affirmed the dismissals of two medical malpractice cases in favor of the defendant health care providers. While both decisions are unpublished and, therefore, not binding authority on the trial or appellate courts, they do not augur well for patient-plaintiffs in medical malpractice cases, an area of the law already ravaged by sweeping tort reform legislation in 2011 and unfriendly appellate opinions over the course of two decades. Last week’s opinions suggest that things are not going to change any time soon.
The first case is Wallace v. Maxwell (COA19-291: March 17, 2020). The Wallace case arose out of a series of spinal surgeries. During the litigation, the patient identified a single doctor as its standard of care and causation expert. The trial court excluded the expert retained by the patient, finding that his opinions on proximate cause were speculative and unreliable. Because he was the sole causation expert, the trial court proceeded to grant a directed verdict in favor of the defendants.
Plaintiff appealed to the Court of Appeals. A three-judge panel consisting of Judges Berger, Stroud and Dillon heard and considered the matter, with Judge Berger serving as the author of the opinion. In a unanimous opinion, the three-judge panel affirmed the decision of the trial court.
First, the Court observed that the post-2011 amendments to Rule 702 adopted the federal Daubert standard of the admission of expert witness testimony, a standard that requires the proponent of expert witness testimony, to establish that the opinions rendered by the expert be reliable. The Court of Appeals concluded that the literature relied upon by the expert in forming his opinions, particularly scholarly medical literature, was irrelevant and unreliable in that it was the product of ongoing research which was “evolving, inconsistent and confusing.” For this reason, the testimony of the expert was not grounded in reliable principles and methods. The Court further held that any relevance that the testimony might have had was outweighed by its potential prejudice, and was thus properly excluded pursuant to Rule 403 of the Rules of Evidence.
The Court of Appeals further held that the expert failed to testify as to causation with a sufficient degree of medical certainty. Because the testimony failed to establish more probably than not the plaintiff would have experienced a better outcome had the defendants performed a different procedure, the trial court properly excluded the testimony of the expert.
The second case is Zhang v. Rubin (COA19-682: March 17, 2020. In Zhang, the trial court excluded the testimony of the plaintiff’s expert on the grounds that the expert was not sufficiently familiar with the background, education and experience of the defendants, and proceeded to enter summary judgment in favor of the defendant.
The Court of Appeals held that the appropriate inquiry was whether at the time of the summary judgment motion the patient’s expert possessed sufficient familiarity with the defendant physician’s education and experience. In affirming the entry of summary judgment, the Court of Appeals observed that the expert had testified during his deposition that he knew nothing about the defendant except that he was a physician at the UNC Medical Center. He admitted during his deposition that he did not know where the defendant attended medical school, where she performed her medical training, did not know anything about her medical practice.
The three-judge panel was comprised of Judge Murphy (who authored the opinion), Judge Zachary and Judge Arrowood. In reaching its decision, the Court noted as relevant the fact that the expert failed to review the transcript of the defendant’s deposition, failed review the web site of the defendant’s medical group and failed to consider the qualifications and training of the other physicians within the defendant’s practice group. The Court concluded that, because the plaintiff was unable to show that his expert was familiar with key aspects of the defendant’s background at the summary judgment stage, the trial court properly excluded the testimony and entered summary judgment in favor of the defendant.
What are the lessons we can take away from these two opinions? First ensure that your causation experts articulate and apply the correct legal standard for admission of expert testimony on the issue of proximate cause. Ensure that the methodology employed by your expert is reliable and, specifically, that the evidence and literature relied upon by the expert is reliable and consistent with his opinions. It also helps to have more than one standard of care and causation expert in case things go awry before the trial court.
Second, it is critical that your expert be familiar and conversant with the background, education and experience of the defendant provider. If the expert is a Rule 9(j) expert, be sure to enclose publicly available information regarding the defendant. Begin with the information that is available publicly regarding the defendants, particularly the information contained on the website for the North Carolina Medical Board. Make additional efforts during discovery to flesh out your expert’s familiarity with the defendant’s pedigree. Obtain a current curriculum vitae in discovery, review and provide to your expert any relevant literature or research published and conducted by the defendant, depose the defendant and elicit testimony regarding his background, training and experience and then provide the transcript to your expert. If the negligence of nurses is at issue, make sure to ask in discovery for the identification of every non-physician provider who rendered care and treatment to the patient. Obtain current resumes and depositions from each provider, being sure to provide these materials to your expert prior to his deposition and no later than the summary judgment stage.
These opinions leave little doubt that in the wild world of North Carolina medical malpractice litigation, it is still very much a defendant-friendly jurisdiction. Careful preparation of your expert can provide invaluable insulation from the inevitable evidentiary challenges that will be mounted by the defendants.Posted byNorth Carolina Personal Injury News and Law BlogPosted inUncategorizedEditNC Court of Appeals Rules in Favor of Doctors and Dismisses Claims of Injured Patients in Two Unpublished MedMal Opinions