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Tort/Negligence – Medical Malpractice – Standard of Care – Proximate Cause – Civil Practice – Directed Verdict

Tort/Negligence – Medical Malpractice – Standard of Care – Proximate Cause – Civil Practice – Directed Verdict

Day v. Brant (Lawyers Weekly No. 12-07-0049, 36 pp.) (Martha A. Geer, J.) Appealed from Iredell County Superior Court. (Christopher M. Collier, J.) N.C. App. Click here for the full-text opinion.

Holding: Even though plaintiffs’ proximate cause expert agreed on cross-examination that assigning percentages to a patient’s survival changes was “speculation”, the expert’s testimony as a whole was sufficient to get to the jury on the issue of proximate cause.

We reverse the trial court’s grant of a directed verdict for defendants.


Plaintiffs’ decedent, Duncan, fell asleep at the wheel and crashed his vehicle. In the emergency room, Duncan had a seatbelt abrasion from his left shoulder to his right upper abdomen and bruises on his arms and legs. He reported neck and chest pain.

A physical examination, blood work, a chest X-ray, cervical spine X-rays, and a limited cervical spine CT scan were performed, and no significant problems were discovered. Neither defendant Dr. Brant nor defendant Edward Hales, a physician’s assistant, ordered an ultrasound or CT scan of Duncan’s abdomen. Duncan was given pain medication and discharged.

By the next morning, Duncan had died from internal bleeding when his liver, which had sustained lacerations in the car accident, ruptured. Plaintiffs contend defendants were negligent in failing to discover the liver lacerations and failing to admit Duncan to the hospital for observation and treatment.

At trial, defendants moved for a directed verdict, arguing that plaintiffs’ experts had failed to testify to the applicable standard of care or to show proximate cause. The trial court granted the motion.

Standard of Care

Defendants contend that plaintiffs did not properly establish that plaintiffs’ standard of care expert, Dr. Mele, was qualified to provide expert testimony on the applicable standard of care. We disagree.

Defendants first point out that Dr. Mele never testified he was a licensed physician. While Dr. Mele was not specifically asked whether he had a medical license, he testified that he was an emergency medicine physician, that he was board certified, that he used to have emergency room privileges at Rex Hospital in Raleigh, and that he now had other hospital privileges at Rex. A jury could reasonably infer from this testimony that Dr. Mele did in fact have a medical license.

Defendants next contend that plaintiffs failed to show Dr. Mele’s familiarity with defendants’ community at the time of the alleged breach.

Dr. Mele testified that he reviewed defendants’ depositions to determine the standard of practice for emergency medicine at Lake Norman Regional Medical Center in 2003. He confirmed that the way they practiced emergency medicine was no different than his practice and that their training and experience in emergency medicine was no different.

He testified that the descriptions of the facilities, the equipment available, the number of beds, and the services performed were all similar to that of hospitals in which he has worked, including Rex Hospital. Dr. Mele also did internet research to obtain demographics regarding Mooresville and determined that it was similar to Wake County where Rex Hospital is located. Additionally, Dr. Mele testified that during his career, he has had an opportunity to consult with practitioners working in communities very similar to Iredell County and has determined that the standard of care in those communities is the same as in Iredell County and in the facilities in which he has worked.

Dr. Mele also reviewed the website of the medical group employing defendants and “read through the qualifications and trainings of their doctors and PAs.” He concluded that the physicians had similar academic backgrounds, training, and experience to his. This testimony was sufficient to establish Dr. Mele’s familiarity with defendants and the standard of care in their community or similar communities.

To the extent defendants are challenging the fact that Dr. Mele acquired most of his information regarding the community after reaching his opinions and having his deposition taken, this court has already rejected the argument that such an approach disqualifies the doctor’s testimony in Roush v. Kennon, 188 N.C. App. 570, 656 S.E.2d 603, disc. review denied, 362 N.C. 361, 664 S.E.2d 309 (2008).

Defendants also argue that Dr. Mele “never testified as to what he specifically learned about the relevant community from reading defendants’ depositions and did not give any specific testimony regarding the physician skill and training in the community, facilities, equipment, funding or physical and financial environment of the relevant medical community.” Defendants have cited no authority requiring that an expert witness testify “as to what he specifically learned,” and we have found none.

While Dr. Mele did not testify to specific numbers or actual details regarding the hospital and community, his testimony provided a basis – his research and personal knowledge – for his claim of familiarity.

The mere mention of a national standard is not sufficient to warrant disregard of an expert’s testimony if the expert has testified regarding his or her familiarity with the standard of care in the same or similar communities.

Dr. Mele repeatedly rejected defense counsel’s attempt to extend Dr. Mele’s opinion to all cities and limited his opinion, as our courts require, to those cities having the same facilities, resources, and training available. In any event, Dr. Mele’s testimony as a whole met the requirements of G.S. § 90-21.12, and he specifically testified that the standard of care he was applying was the standard of care for defendants’ community,

Dr. Mele was qualified to testify as to the applicable standard of care. Since defendants have not disputed that Dr. Mele further testified that defendants breached that standard of care, plaintiffs presented sufficient evidence to go to the jury on the question of the breach of the standard of care.

Proximate Cause

Defendants argue that the testimony of plaintiffs’ proximate cause expert, Dr. Wyatt, was insufficient evidence of proximate cause because Dr. Wyatt’s testimony as to Duncan’s chances of survival, had he been admitted and observed at the hospital, amounted to mere speculation. Defendants contend that, as to this issue, the court should apply the abuse of discretion standard of review set out in Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004). We disagree.

Howerton addresses the test applicable in determining the admissibility of expert testimony. In this case, there was no dispute at trial regarding the admissibility of Dr. Wyatt’s expert testimony. Therefore, Howerton is inapplicable.

Instead of challenging the admissibility of Dr. Wyatt’s testimony, defendants, at trial and on appeal, have challenged the sufficiency of Dr. Wyatt’s testimony to establish causation. Therefore, the proper standard of review is the directed verdict standard.

Dr. Wyatt testified that, had a CT scan been performed on Duncan’s abdomen, the liver lacerations would have been discovered. He also testified that he believed Duncan died from the bleeding caused by the liver lacerations and subsequent rupture.

Dr. Wyatt was then asked, “And you have an opinion satisfactory to yourself and to a reasonable degree of medical certainty that had [Duncan’s] liver laceration been diagnosed and treated that he would have had a better than 51 percent chance of survival?”

Dr. Wyatt responded, “Yes.” He testified: “I believe he would have survived it.”

On cross-examination, he admitted that he could not “say for certainty” that Duncan would have survived.

Dr. Wyatt specifically testified that “if [Duncan] had been observed in the proper unit when he started to bleed or showed signs of instability, then I think he had a greater than 50 percent chance of surviving.”

On top of specifically testifying that had he been admitted and observed, Duncan would have had a greater than 50 percent chance of survival, Dr. Wyatt’s written report explicitly set out how, if the laceration had been discovered, a rupture and internal bleeding could have been prevented or stopped. Under Felts v. Liberty Emergency Serv., P.A., 97 N.C. App. 381, 388 S.E.2d 619 (1990), this was sufficient evidence of proximate cause.

Dr. Wyatt had experience treating patients with comparable liver lacerations, specifically listed what would have been done had the lacerations been diagnosed and Duncan hospitalized, and testified that “most” patients with Duncan’s level of lacerations survive if hospitalized and properly managed. Under Gaines v. Cumberland County Hosp. Sys., Inc., 195 N.C. App. 442, 672 S.E.2d 713 (2009), this testimony was sufficient to take the case to the jury.

Although Dr. Wyatt used the word “speculation” in portions of his testimony, our review of the entirety of his testimony indicates that Dr. Wyatt was not labeling as speculation his opinion that if Duncan’s liver laceration had been diagnosed and treated, he would have had a 51 percent chance of survival. Rather, we read his testimony as acknowledging that the practice of putting a specific percentage on Duncan’s chance of survival is inherently speculative. Dr. Wyatt, however, ultimately testified that “most” patients with Duncan’s injury who are treated in accordance with the standard of care will survive and that he believes Duncan “would have survived.” This opinion is sufficient to establish a probability of survival regardless of the precise numerical percentage used.

A defendant cannot justify a directed verdict by pointing to inconsistencies and contradictions in a plaintiff’s evidence because on a motion for directed verdict conflicts in the evidence unfavorable to the plaintiff must be disregarded. Conflicts in the evidence and contradictions within a particular witness’ testimony are for the jury to resolve.

Dr. Wyatt specifically testified that when patients with liver lacerations like that suffered by Duncan are hospitalized, monitored, and treated, “most” of them survive. He further testified that if the defendants had followed the standard of care, Duncan would have had a better than 51 percent chance of survival and that he believes Duncan would have survived. In sum, Dr. Wyatt’s testimony established that Duncan’s survival was not merely possible but rather was probable if defendants had complied with the standard of care.

Although defendants point out that Dr. Wyatt could not say to an absolute certainty that Duncan would have survived, absolute certainty is not required. We hold that Dr. Wyatt’s testimony was sufficient to send the issue of proximate cause to the jury.

Plaintiffs presented sufficient competent evidence through Dr. Mele that defendants breached the applicable standard of care. Further, Dr. Wyatt provided sufficient evidence of proximate causation. Since those are the only two elements at issue, we hold that the trial court erred in entering a directed verdict in favor of defendants.



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