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Plaintiff's medical witness' testimony not admissible.

CASE ON POINT: Knox v. Univ. Health Sys. of E. Carolina, Inc., 2007 NCCA-258 (2007) S.E.2d--NC

ISSUE: A plaintiff in a medical malpractice case must have an expert medical witness who has the same or more credentials as those of the physician or physicians who are allegedly guilty of medical malpractice. A plaintiff, however meritorious his case, cannot prevail unless he has an expert medical witness or witnesses who have the same or lucre prestigious credentials than the physicians who are allegedly guilty of medical malpractice. This case is a good illustration of a case in which the plaintiff 'dropped the ball' in failing to have at least one (or more) expert witness who was board certified and practiced in the same fields or specialty as the defendant physicians who the plaintiff alleged had been guilty of medical malpractice, which the plaintiff alleged was the direct and proximate cause of a patient's death. The expert or experts must be qualified and prepared to testily as to the medical malpractice of the defendant physician or physicians. Further, the expert or experts must be able to testily that the medical malpractice was the proximate cause of a patient's injuries or death.

CASE FACTS: Toby Knox, was injured in a motor vehicle accident on December 21, 2003, and was transported to Wilson Medical Center for treatment of his injuries. Due to the extent of the injuries, he was transferred to the trauma center in Pill County Memorial Hospital. On December 25, 2003, his temperature was 100.22 degrees. The examining nurse noted the possibility of an infection and classified the patient as "'at risk." On December 26, 2003, a nurse observed that the patient had a temperature of 101.84 degrees, for which he was given 350 milligrams of Tylenol. On December 27, 2003, the patient's temperature reached 106.88 degrees. To combat the patient's rising temperature, he was given a cooling blanket and 800 milligrams of Motrin. On December 28, 2003, the patient appeared to be in septic shock. On December 29, 2003, the patient died. On January 17, 2006, the patient's wife filed a suit for medical malpractice against, inter alia, University Health Systems of Eastern Carolina, Inc., Pitt County Memorial Hospital, Inc., Drs. Indira Murr, Jody Haigood, Karen Kinney, Mark Newell, Curtis Bower, and Christopher Logue. The plaintiff alleged the negligence of the defendants caused her husband's pain and suffering, which ultimately resulted in his death. The trial court granted motions by Drs. Newell and Kinney that the cases against them be dismissed. The plaintiff appealed, arguing that the trial court erred in dismissing her complaint alleging medical malpractice due to her failure to comply with Rule 9 of the North Carolina Rules of Civil Procedure.

COURT'S OPINION: The Court of Appeals of North Carolina affirmed the judgment of the trial court in dismissing the plaintiff's claims against Drs. Newell and Kinney. The court held, inter alia, that the plaintiff's expert witness did not qualify to testify as an expert tinder the Rules of Civil Procedure.

LEGAL COMMENTARY: The trial court rejected the plaintiff's contention that the trial court erred by failing to find that Rule 9 of the North Carolina Rules of Civil Procedure did not apply when the constitutional right to a trial by ,jury is guaranteed and not waived. However, the court noted, the assignment of error the plaintiff sought did not make such a contention. The assignment of error must clearly disclose the question presented. Upon review, the court concluded that the plaintiff's argument did not correspond to any of the assignments of error set out in the record on appeal. The court concluded that the scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal. Since the issue presented in the plaintiff's brief on appeal did not correspond to a proper assignment of error, the court could not properly consider the matter. Accordingly, for that reason the court declined to address the merits of the plaintiff's argument oil appeal. The plaintiff's argument that the trial judge erred in determining that the plaintiff's expert medical witness, Dr. Reynolds, did not meet the requirements of the Rules of Civil Procedure was rejected by the court. The court noted that the plaintiff did not dispute that Drs. Newell and Kinney were specialists. Rather, the plaintiff asserted that neither doctor was practicing within their specialty at the time they treated the patient. However, the court found that the record did not support the plaintiff's contention. The undisputed evidence in the record revealed that Dr. Kinney is a board certified emergency room physician, and Dr. Newell is a board certified trauma surgeon. In additions, the record showed that both doctors were acting within their capacities as specialists in treating the patient as a trauma patient. Thus, both Drs. Newall and Kinney were properly deemed as specialists under the Rules of Evidence. The plaintiff's expert witness, Dr. Reynolds, was not board certified as either an emergency room physician or a trauma surgeon, nor did he practice in either of those areas. Therefore, Dr. Reynolds could not reasonably' be expected to qualify as an expert witness as required by the state's Rules of Civil Procedure. Further, the court rejected the plaintiff's contention that even if Dr. Reynolds was not a competent expert witness under the specific Rule of Civil Procedure in question, she should be certified under Rule 702 (e), which provides that the "ends of justice would be served by her testimony."

A. David Tammelleo JD Editor & Publisher

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Case on Point
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Dec 1, 2007
Previous Article:NY: failure to prove malpractice 'caused' injury: 'causation' must be proved in malpractice case.
Next Article:Did patient receive 'fair' treatment by Dr. and courts?

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