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Court eases the rules on expert testimony

Medical malpractice attorneys had a busy day April 16, as the North Carolina Court of Appeals handed down two decisions that took an expansive view of the kinds of expert testimony it deems permissible. In the first decision, the court overturned a trial court’s directed verdict for Duke University Health System, saying that the plaintiff’s expert witness should have been allowed to compare Duke to other first-class teaching hospitals far from Durham. (Click here for the second opinion.)

Jeffrey Higginbotham, a delivery truck driver from West Virginia, began experiencing pain and numbness in his left arm. After local doctors could not mend what ailed him, he was referred to Duke. There, doctors determined that he had a nerve problem aggravated by his top rib. He was referred to Dr. Thomas D’Amico, who recommended surgery to remove the top rib, which took place in October 2004.

After the surgery, X-rays revealed that D’Amico had removed the wrong rib. D’Amico told Higginbotham he needed another operation immediately, but Higginbotham declined to have D’Amico operate on him again. His pain did not improve, and he sued D’Amico and Duke for malpractice.

To prevail in his lawsuit, Higginbotham had to present expert witnesses who could prove that he did not receive care “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.” Traditionally, North Carolina courts are known for their fidelity to the “communities” requirement, and out-of-town experts have been expected to rattle off detailed knowledge of the community where the medical care took place in order for their testimony to be accepted.

Higginbotham’s expert witness, Dr. Robert Streisand of New York, instead testified that Duke “had a fine reputation as a medical institution,” and that the standard of care at Duke would be “the national standard of care that’s applied to all finer institutions,” such as UCLA and Johns Hopkins, the best teaching hospitals in urban settings.

Defense attorneys seized on Streisand’s repeated references to a “national standard” to argue that he did not establish a sufficient familiarity with the Durham community for the court to accept his testimony. The trial court agreed and awarded the defendants a directed verdict, but on appeal, the Court of Appeals reversed, holding that the mere use of the phrase “national standard of care” is not fatal to an expert’s testimony if the expert’s testimony otherwise meets the demands of state law.

The court said that, taking Streisand’s testimony as a whole, he displayed a sufficient knowledge of the relevant standard of care by referring to the hospital’s peer institutions.

“This testimony does not suggest that Streisand was asserting a national standard of care which would be the same at hospitals in every community across the country,” Judge Linda Stephens wrote for a unanimous court. “On the contrary, Streisand testified that the standard of care at Duke was the same as found at other ‘top level … teaching hospitals in urban settings’ and ‘other major university hospitals,’ such as UCLA and Johns Hopkins, the ‘highest standard of care of the best hospitals in the nation.’”

Stephens added that that defendants’ argument that Streisand should have been familiar with the community of Durham specifically was entirely unconvincing.

“It cannot be reasonably maintained that the standard of care at Duke is better approximated by comparison to community hospitals in Durham or similarly sized cities than to other renowned, ‘top level teaching hospitals’ attached to major universities, such as UCLA and Johns Hopkins,” Stephens wrote.

However, the appeals court affirmed the trial court’s dismissal of Higginbotham’s claim of battery against D’Amico.

Paul Klein of Cranford, Buckley, Schultze, Tomchin, Allen & Buie in Charlotte represented Higginbotham. Dan McLamb and Lori Meyerhoffer of Yates, McLamb, & Weyher in Raleigh represented D’Amico and Duke.

Klein said that while the Court of Appeals had never had to answer this precise question before, he thought the court’s decision was the logical extension of its earlier precedent.

“I think the way the court has moved in the last few years is that it is willing to examine on a case-by-case basis every set of testimony that references a national standard,” Klein said. “Once upon a time, if the word ‘national’ were used, that would be the end of the analysis. It would be presumed that it would be a countrywide standard that’s being talked about.”

The 13-page decision is Higginbotham v. D’Amico (Lawyers Weekly No. 13-07-0362). The full text of the opinion is available online at

Follow David Donovan on Twitter @NCLWDonovan

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