Henry v. Southeastern OB-GYN Associates, P.A.

McCullough, Judge. Plaintiffs Mr. and Mrs. Henry brought this medical malpractice action on behalf of themselves and their daughter, Crystal Henry, seeking recovery for the allegedly negligent prenatal and obstetrical care rendered by defendants. At trial, plaintiffs tendered one expert [562] witness: Dr. Chauhan, an OB-GYN specialist practicing in Spartanburg, South Carolina, and licensed in South Carolina and Georgia. After finding that plaintiffs failed to present competent medical testimony establishing the relevant standard of care, the trial court granted directed verdict in defendants’ favor. Plaintiffs appealed from this judgment. Plaintiffs argue that the trial court erred in excluding their medical expert’s testimony as to the applicable standard of care, and, as a result, subsequently directing verdict in favor of defendants. We find no error by the trial court and therefore affirm directed verdict for defendants. Plaintiffs contend that, although Dr. Chauhan was unfamiliar with the medical community in Wilmington, North Carolina, where defendants practice and the alleged malpractice occurred, he could nevertheless competently testify to the prevailing standard of prenatal and obstetrical care in Wilmington because he was familiar with the applicable national standard of care. Plaintiffs further argue that Dr. Chauhan was familiar with the standard of care in Spartanburg, South Carolina, and that this standard would be the same standard applied at Duke Hospital in Durham, North Carolina, or at UNC-Hospital in Chapel Hill, North Carolina. Thus, argue plaintiffs, Dr. Chauhan could testify to the applicable standard of care in Wilmington even though he was unacquainted with its medical community. N.C. Gen. Stat. § 90-21.12 prescribes the relevant standard of care in a medical malpractice action: In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical . . . care, the defendant shall not be liable . . . unless . . . the care of such health care provider was not 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 at the time of the alleged act giving rise to the cause of action. N.C. Gen. Stat. § 90-21.12 (1999) (emphasis added). The report of a study commission recommending adoption of N.C. Gen. Stat. § 90-21.12 makes clear that the legislature intended to avoid a national standard of care for North Carolina health care providers: [563] The North Carolina Supreme Court has gone only as far as a “same or similar communities” standard of care, and the Commission recommends that this concept be enacted into the General Statutes to avoid further interpretation by the Supreme Court which might lead to regional or national standards for all health care providers. North Carolina Professional Liability Insurance Study Commission, Report to the Gen. Assembly of 1976, 32 (1976). This Court has also stated that “[b]y adopting the ‘similar community’ rule in G.S. 90-21.12 it was the intent of the General Assembly to avoid the adoption of a national or regional standard of care for health providers . . . .” Page v. Hospital, 49 N.C. App. 533, 535, 272 S.E.2d 8, 10 (1980). See also Thompson v. Lockert, 34 N.C. App. 1, 4-5, 237 S.E.2d 259, 261, disc. review denied, 293 N.C. 593, 239 S.E.2d 264 (1977) (specifically rejecting the application of a general or national standard of care for even a “highly trained and certified specialist”); Robert G. Byrd, The North Carolina Medical Malpractice Statute, 62 N.C.L. Rev. 711, 734, 740 (1984) (noting that the “North Carolina General Assembly’s apparent purpose in codifying the same or similar community standard for health care providers was to foreclose judicial adoption of a regional or national standard” and that such an adoption would be “inconsistent with North Carolina case law and statutes”). After reviewing Dr. Chauhan’s testimony in its entirety, we find that the record indicates he failed to testify in any instance that he was familiar with the standard of care in Wilmington or similar communities. Although Dr. Chauhan testified that he was familiar with the national standard of care, there is no evidence that the national standard of care is the standard practiced in Wilmington. See Tucker v. Meis, 127 N.C. App. 197, 198, 487 S.E.2d 827, 829 (1997) (“Although [the expert witness] testified that he was familiar with the standard of care in North Carolina, he failed to make the statutorily required connection to the community in which the alleged malpractice took place or to a similarly situated community.”). Moreover, there is no evidence in the record that the standard of care practiced in Wilmington is the same standard that prevails in Durham or Chapel Hill, or that these communities are the “same or similar.” In Tucker, a recent case remarkably similar to the one before us, plaintiffs sought to recover from defendants physician and hospital “for an allegedly negligently repaired episiotomy performed on [plaintiff patient] following child birth in Winston-Salem, North [564] Carolina.” Tucker, 127 N.C. App. at 197, 487 S.E.2d at 828. The trial court found, and this Court affirmed, that plaintiffs’ expert witness could not establish the standard of care, and that therefore directed verdict for defendants was proper. Because plaintiffs’ witness was familiar only with the standard of care in North Carolina, rather than the standard of care in Winston-Salem, his testimony was “irrelevant.” Tucker, 127 N.C. App. at 199, 487 S.E.2d at 829. The Tucker Court further noted that the “same or similar communities” standard “allows for consideration of the effect that variations in facilities, equipment, funding, etc., throughout the state might have on the standard of care.” Id. Thus, it is clear that the concept of an applicable standard of care encompasses more than mere physician skill and training; rather, it also involves the physical and financial environment of a particular medical community. The Tucker Court concluded that “the problem with [plaintiffs’ expert witness’] testimony was not that he had not practiced in North Carolina; rather, it was his failure to testify that he was familiar with the standard of care in Winston-Salem or similar communities.” Id. Plaintiffs nevertheless argue that a uniform standard of care governs prenatal and obstetrical care to which Dr. Chauhan could competently testify. Plaintiffs note that, “if the standard of care for a given procedure is ‘the same across the country, an expert witness familiar with that standard may testify despite his lack of familiarity with the defendant’s community!.]’ ” Marley v. Graper, 135 N.C. App. 423, 428, 521 S.E.2d 129, 134 (1999) (quoting Haney v. Alexander, 71 N.C. App. 731, 736, 323 S.E.2d 430, 434 (1984), cert. denied, 313 N.C. 329, 327 S.E.2d 889 (1985)), cert. denied, 351 N.C. 358, 542 S.E.2d 214 (2000). This Court, however, has recognized very few “uniform procedures” to which a national standard may apply, and to which an expert may testify. See, for example, Haney, 71 N.C. App. at 736, 323 S.E.2d at 434 (allowing expert medical witness to testify that taking and reporting vital signs of a deteriorating patient was the same for nurses in accredited hospitals across the country); Page, 49 N.C. App. at 536, 272 S.E.2d at 10 (“nursing practices in connection with patients’ use of a bedpan are so routine and uncomplicated that the standard of care should not differ appreciably between . . . neighboring counties”). The case before us concerns the prenatal care of a patient with gestational diabetes and the delivery of an infant suffering from shoulder dystocia. Such a scenario involves medical procedures considerably more complicated than the taking of vital signs or the place565 merit of bedpans. Accordingly, a national standard cannot be applied to defendants’ conduct. Furthermore, plaintiffs’ reliance upon Marley is misplaced. In Marley, plaintiffs contended that the trial court erred in allowing testimony by defendants’ expert witness, who stated that the defendant physician “met the standard of care for plastic surgery not only in [Greensboro] but anywhere in the United States.” Marley, 135 N.C. App. at 430, 521 S.E.2d at 134 (emphasis added). Affirming the trial court, this Court stated that “ [although the [expert] witness did not testify that he was familiar with the standard of care for Greensboro, the testimony he did provide obviated the need for such familiarity.” Id. (emphasis added). The Court explained that, because the expert testified that defendant’s performance “met the highest standard of care found anywhere in the United States,” the Court reasoned that “if the standard of care for Greensboro matched the highest standard in the country, [defendant’s] treatment of [plaintiff] met that standard; if the standard of care in Greensboro was lower, [defendant’s] treatment of [plaintiff] exceeded the area standard.” Marley, 135 N.C. App. at 430, 521 S.E.2d at 134. Thus, the testimony was “sufficient to meet the requirements of section 90-21.12,” and the trial court did not err in allowing the witness to testify. Id. In the instant case, plaintiffs failed to establish that their expert was familiar with the standard of care practiced in Wilmington or a similar community. Further, unlike Marley, Dr. Chauhan would have testified that defendants failed to meet the national standard of care, creating an obvious need for the establishment of the applicable standard through proper testimony. Even if Dr. Chauhan was familiar with the standard of care in Chapel Hill or Durham, there was no evidence that a similar standard of care prevailed in Wilmington. “N.C.G.S. § 90-21.12 mandates that the relevant standard of care is that of the community where the injury occurred (or similar communities) and not that of the state as a whole.” Tucker, 127 N.C. App. at 198, 487 S.E.2d at 829. To adopt plaintiffs’ argument, this Court would have to ignore the plain language of N.C. Gen. Stat. § 90-21.12 and its evidentiary requirement that the “similar community” rule imposes, as well as well-established case law. This we decline to do. See Baynor v. Cook, 125 N.C. App. 274, 277, 480 S.E.2d 419, 421, disc. review denied, 346 N.C. 275, 487 S.E.2d 537 (1997) (rejecting plaintiff’s assertion that our law “allows a doctor’s conduct to be judged against a national standard of care when the standard of care is the same across the country”); In re Dailey v. Board of Dental [566] Examiners, 60 N.C. App. 441, 443, 299 S.E.2d 473, 475 (1983) (noting that “[i]t is clear from the wording of [N.C. Gen. Stat. § 90-21.12] that the test is not that of a statewide standard of health care”); Tucker, 127 N.C. App. at 197, 487 S.E.2d at 829; Thompson, 34 N.C. App. at 4, 237 S.E.2d at 261. As Dr. Chauhan was unfamiliar with the relevant standard of care, his opinion as to whether defendants met that standard is unfounded and irrelevant, and thus we hold that the trial court properly excluded Dr. Chauhan’s testimony. There being no other expert witnesses to establish defendants’ negligence, defendants were entitled to a directed verdict as a matter of law. In light of our holding, we need not address further argument by defendants. The trial court is hereby Affirmed. Judge GREENE concurs with separate opinion. Judge HUDSON dissents.