Hospital statistics and demographic data found on the internet can make the difference between winning and losing a medmal claim in North Carolina, according to one plaintiffs’ attorney.
The reason: to establish the standard of care under G.S. Sect. 90-21.12, plaintiffs’ experts must be familiar with the practice standards in the defendant’s community or similar areas. Testimony that’s only founded on national or regional standards of care will usually be tossed out, fatally injuring the plaintiff’s case.
“No expert witness should be allowed in a courtroom with anything less than a complete appreciation for North Carolina’s statutory standard of care,” says Durham lawyer Mark McGrath.
“In a perfect world, the standard-of-care expert will practice in a community that is demonstrably similar to the community at issue,” McGrath says in an article for Lawyers Weekly (see Guest Column, page 28). “If, as is frequently the case, he does not, efforts must be undertaken to familiarize him with that community.”
That can be accomplished with witness preparation and a little research, according to McGrath.
“This shouldn’t be a problem,” he says. “Conservative preparation can familiarize your guy with the relevant community. The courts haven’t laid down a laundry list of factors, but if, for example, your expert knows how many family doctors practice in Wilkes County, I think that goes a considerable distance toward establishing his familiarity.”
The key is providing potential experts with demographic data for the city and county where the malpractice was committed, as well as other community-specific information.
The internet can be a valuable source for this information, according McGrath. Among his suggestions:
* Hospital websites. “Many hospitals maintain elaborate websites which can provide a wealth of information regarding their departments, the credentials and experience of their staff, the subspecialties represented at the hospital, the number of beds at the facility, and the laboratories and diagnostic technologies that are available,” says McGrath.
* UNC website. “The University of North Carolina maintains an extremely useful website which provides medical-related statistics for all North Carolina counties, including the number of subspecialists practicing in each county and the ratio of health care providers to the overall population,” says McGrath.
To check it out, go to http://www.shepscenter.unc.edu.
* Chamber of commerce websites. “Chambers of commerce can also be fertile sources for relevant community information and healthcare data,” says McGrath. “You can probably also get interesting stuff by calling them up and asking for any newcomer packages they have.”
When using internet info, attorneys should be sure it corresponds to the time period when the malpractice occurred, according to McGrath.
“Familiarity with the medical standards prevailing in the Charlotte of 1991 will not carry much probative weight if the malpractice occurred in 1998,” he says. “This can become especially problematic when representing insured minors who may have been injured years before suit was filed on their behalf.”
* The defendant physician. The doctor in a medmal case can also be a useful, “if unwitting,” source of community data, McGrath says.
“In depositions, be sure to ask the defendant about the kind of information an outsider would need to possess in order to familiarize himself with the medical community,” he says. “If your expert acquaints himself with that information, it will be extremely difficult for the defendant to later challenge his testimony on that basis.”
The consequences of relying on an expert who couldn’t demonstrate the required familiarity with local standards was illustrated in a 2001 case, Henry v. Southeastern OB-GYN Assoc., P.A., 145 N.C. App. 208, 543 S.E.2d 911, aff’d per curiam, 354 N.C. 570, 557 S.E.2d 530 (2001).
In Henry, the plaintiff’s only obstetrics expert, who practiced in Spartanburg, S.C., testified that he was familiar with a national standard of care for the treatment at issue. He also said he was familiar with the practice standards at teaching hospitals in Durham and Chapel Hill — and said those were the same as the standards in Wilmington.
But the expert conceded that he wasn’t familiar with Wilmington or similar communities. That lack of familiarity meant he couldn’t establish the proper standard of care under G.S. Sect. 90-21.12, the Henry panel ruled. The result: a directed verdict for the defendant.
Reliance on a national standard of care only provides a foundation for expert testimony in two “relatively rare” situations, according to McGrath.
* Routine treatment. National standards may be useful where the treatment is so routine that it is “utterly devoid of regional disparity or nuance,” he says. “For example, simple activities such as the taking of vital signs and the use of a bedpan have been recognized as the kind of mundane procedures for which a uniform national standard of care might properly be recognized.”
* Link to defendant’s community. “Testimony regarding a national standard of care may also be permitted when the expert can attest to familiarity with the medical community in question, and further testify that the standard of care for that community is consistent with the national standard for that treatment or procedure,” says McGrath.
That’s essentially what a plaintiff’s expert from South Carolina was able to do in a case handed down in June, Leatherwood v. Ehlinger (North Carolina Lawyers Weekly No. 2-07-0874, 18 pages).
The Leatherwood panel said the standard-of-care testimony in that case was distinguishable from Henry, even though the plaintiff’s OB/GYN expert practiced in South Carolina and based his opinions in part on national standards. The reason:
* The expert testified he was familiar with the standards of practice among obstetricians with training and experience similar to doctors in Asheville and similar communities.
* The expert testified that, as a med student, he attended rounds at the hospital in which the plaintiff’s baby was delivered.
* The record showed the expert practiced in Greenville, S.C. and had practiced in similar communities in Alabama and Mississippi that were similar in size to Asheville.
* The expert also testified that Asheville and other similar communities followed the same national standards with respect to the management of the infant’s problem.
“The ‘similar community’ requirement under G.S. Sect. 90-21.12 wasn’t limited to North Carolina and could apply to adjoining and nearby communities ‘within or without our state,’” wrote Judge Ralph Walker (see June 24, 2002 Lawyers Weekly).
Despite the holding in Leatherwood, McGrath cautions plaintiff’s lawyers about using national standard-of-care evidence.
“I think the Henry trap is still out there,” he says. “The mere words ‘national standard’ can expose you to needless trouble. Given the current state of the law and the potentially ruinous consequences of missing the statutory mark, attorneys should be extremely cautious about invoking a national standard under any circumstances.”
The bottom line, according to McGrath: “Prepare your witness to field the inevitable national standard question. A standard-of-care expert should never testify that he applied a national standard in forming his opinions, except in the unusual situations where the standards of the community at issue are indisputably consistent with a uniform national standard.”