The opinion
NO. COA13-221
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
LESLIE WEBB, Administratrix of the
Estate of ROBERT B. WEBB, III,
Plaintiff-Appellant,
v. Forsyth County
No. 10-CVS-1990
WAKE FOREST UNIVERSITY BAPTIST
MEDICAL CENTER, UNIVERSITY DENTAL
ASSOCIATES, NORTH CAROLINA BAPTIST
HOSPITAL, WAKE FOREST UNIVERSITY,
WAKE FOREST UNIVERSITY PHYSICIANS,
SHILPA S. BUSS, DDS, and REENA
PATEL, DDS,
Defendants-Appellees.
Appeal by Plaintiff from order entered 27 August 2012 by
Judge John O. Craig, III in Superior Court, Forsyth County.
Heard in the Court of Appeals 10 September 2013.
Kennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L.
Kennedy, III and Harvey L. Kennedy, for Plaintiff-
Appellant.
Coffey Bomar LLP, by Tamura D. Coffey and J. Rebekah
Biggerstaff, for Defendants-Appellees Wake Forest
University Baptist Medical Center, North Carolina Baptist
Hospital, Wake Forest University, and Wake Forest
University Physicians.
Carruthers & Roth, P.A., by Kenneth L. Jones and Michal E.
Yarborough, for Defendant-Appellee University Dental
Associates.
McGEE, Judge.
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Leslie Webb, Administratrix of the Estate of Robert B.
Webb, III, (“Plaintiff”), filed a complaint against Wake Forest
University Baptist Medical Center, University Dental Associates,
North Carolina Baptist Hospital, Wake Forest University, Wake
Forest University Physicians, Shilpa S. Buss, DDS, and Reena
Patel, DDS (“Defendants”) on 13 July 2010. Plaintiff alleged
that Robert B. Webb, III, (“the Decedent”) was under general
anesthesia for oral surgery, teeth cleaning, and the extraction
of four teeth performed on 13 March 2008. The Decedent was sent
home the same day following the procedure. He became
unresponsive at home on 14 March 2008 and was pronounced dead on
15 March 2008. Plaintiff alleged that Defendants were negligent
in their treatment of the Decedent and that this negligence was
the proximate cause of his death.
Defendants Wake Forest University Baptist Medical Center,
North Carolina Baptist Hospital, Wake Forest University, Wake
Forest University Physicians, Shilpa S. Buss, DDS, and Reena
Patel, DDS, filed an answer on 30 September 2010. Defendant
University Dental Associates filed a separate answer on 5
October 2010.
Defendants Wake Forest University Baptist Medical Center,
North Carolina Baptist Hospital, Wake Forest University, Wake
Forest University Physicians, Shilpa S. Buss, DDS, and Reena
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Patel, DDS, filed a motion for summary judgment on 26 July 2012.
Defendant University Dental Associates filed a separate motion
for summary judgment on 31 July 2012.
The trial court granted the motions for summary judgment as
to “any and all allegations, claims, and causes of action
involving the dental care provided to [the D]ecedent.” The
trial court also granted the motion for summary judgment “as to
any and all allegations, claims, and causes of action that
relate to the dental care provided to [the D]ecedent involving
the alleged negligence of [D]efendants Wake Forest University
Baptist Medical Center, North Carolina Baptist Hospital, Wake
Forest University, and Wake Forest University Physicians.” The
trial court denied Defendants’ summary judgment motion relating
to anesthesia care.
Plaintiff appeals.
I. Summary Judgment Rule
Plaintiff argues the trial court erred in granting
Defendants’ motions for summary judgment relating to dental care
of Decedent. A trial court should grant a motion for summary
judgment only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment
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as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013);
see also Lord v. Beerman, 191 N.C. App. 290, 293, 664 S.E.2d
331, 334 (2008).
Our Supreme Court has “emphasized that summary judgment is
a drastic measure, and it should be used with caution. This is
especially true in a negligence case[.]” Williams v. Power &
Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979)
(internal citation omitted). The purpose of N.C.G.S. § 1A-1,
Rule 56 “is to eliminate formal trials where only questions of
law are involved.” Lowe v. Bradford, 305 N.C. 366, 369, 289
S.E.2d 363, 366 (1982). “An issue is ‘genuine’ if it can be
proven by substantial evidence and a fact is ‘material’ if it
would constitute or irrevocably establish any material element
of a claim or a defense.” Id.
“The moving party carries the burden of establishing the
lack of any triable issue.” Lord, 191 N.C. App. at 293, 664
S.E.2d at 334. “The movant may meet his or her burden by
proving that an essential element of the opposing party’s claim
is nonexistent, or by showing through discovery that the
opposing party cannot produce evidence to support an essential
element of his claim[.]” Id. (internal quotation marks
omitted). “Generally this means that on undisputed aspects of
the opposing evidential forecast, where there is no genuine
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issue of fact, the moving party is entitled to judgment as a
matter of law.” Lowe, 305 N.C. at 369, 289 S.E.2d at 366
(internal quotation marks omitted).
Once the moving party has met its initial burden, the
nonmoving party must produce “a forecast of evidence
demonstrating that the [nonmoving party] will be able to make
out at least a prima facie case at trial” in order to survive
summary judgment. Diggs v. Novant Health, Inc., 177 N.C. App.
290, 294, 628 S.E.2d 851, 855 (2006) (alteration in original).
“The opposing [nonmoving] party need not convince the court that
he would prevail on a triable issue of material fact but only
that the issue exists.” Lowe, 305 N.C. at 370, 289 S.E.2d at
366.
II. Analysis
Plaintiff’s complaint and Defendants’ answers show there
are genuine issues of material fact in this matter. The
complaint alleged the following:
XII. That the oral surgery performed on [the
Decedent] lasted 8 hours and 20 minutes,
approximately four times longer than the
time for the procedure represented to the
parents of [the Decedent]. The oral surgery
consisted of teeth cleaning and the
extraction of four teeth. The patient was
under general anesthesia for over 8
hours. . . .
XIV. That the oral surgeons and the
anesthesia treatment team were aware of the
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fact that a known risk of having a patient
under general anesthesia for an extensive
period of time was that the patient could
develop pneumonia.
XV. That in spite of the lengthy surgery and
the extended period of time that the patient
was under general anesthesia, upon
information and belief, the anesthesia
treatment team in consultation with the two
oral surgeons made the decision to send [the
Decedent] home on March 13, 2008 post
surgery.
XVI. On March 14, 2008, [the Decedent]
became unresponsive at home. He was rushed
by EMT to Moses Cone Hospital in Greensboro,
North Carolina. At Moses Cone Hospital,
[the Decedent] was diagnosed as having
cerebral edema on CT, anoxic brain damage
and cardiac arrest. . . .
XVIII. An autopsy was performed, and the
cause of death was determined to be
bronchopneumonia following comprehensive
dental care under general anesthesia.
Defendants Wake Forest University Baptist Medical Center,
North Carolina Baptist Hospital, Wake Forest University, Wake
Forest University Physicians, Shilpa S. Buss, DDS, and Reena
Patel, DDS, denied all of the above allegations in their answer.
Defendant University Dental Associates filed a separate answer
in which it also denied the above allegations.
Defendants, in their briefs to this Court and at oral
argument, focused on the admissibility of expert testimony under
N.C. Gen. Stat. § 8C-1, Rule 702(b). The trial court also
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stated during the hearing that Plaintiff had “run squarely into
a brick wall with Rule 702(b).”
However, we note that the record contains no motion to
exclude Plaintiff’s expert witnesses. Rather, at the hearing on
Defendants’ motions for summary judgment, Defendants argued
Plaintiff failed to show causation, as follows:
Your Honor . . . we will concede that
[Plaintiff has] three expert witnesses, all
who have testified about standard of care
issues. That is not what we’re arguing
about. We are strictly arguing about
whether or not they had made a causal link
with these three experts to the dental care
in the case.
Medical malpractice encompasses actions arising from the
performance of dental care. “[T]he term ‘medical malpractice
action’ means a civil action for damages for personal injury or
death arising out of the furnishing or failure to furnish
professional services in the performance of medical, dental, or
other health care by a health care provider.” N.C. Gen. Stat.
§ 90-21.11 (2009).1
“To survive a motion for summary judgment in a medical
malpractice action, a plaintiff must forecast evidence
1 Our General Assembly amended this statute in 2011. 2011 N.C.
Sess. Laws ch. 400 § 5. The amendment applies “to causes of
actions arising on or after” 1 October 2011. Id. at § 11. The
cause of action in the present case arose on or about 13 March
2008. The amendment therefore is not applicable to the present
case.
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demonstrating that the treatment administered by [the] defendant
was in negligent violation of the accepted standard of medical
care in the community[,] and that [the] defendant’s treatment
proximately caused the injury.” Lord, 191 N.C. App. at 293-94,
664 S.E.2d at 334 (alterations in original) (internal quotation
marks omitted). “Proximate cause is a cause which in natural
and continuous sequence, unbroken by any new and independent
cause, produced the plaintiff’s injuries, and without which the
injuries would not have occurred[.]” Id. at 294, 664 S.E.2d at
334.
In the present case, Plaintiff forecast evidence showing
that the treatment administered by Defendants was in negligent
violation of the accepted standard of care in the community.
Dr. Behrman, a Doctor of Dental Medicine, testified on behalf of
the Decedent in a deposition that “[t]here was no clearance
obtained on a significantly medically compromised person by the
physician of record, the physician caring for him[.]” Dr.
Behrman testified as follows regarding the necessity to consult
with the physician of record prior to the dental procedure:
This is bread and butter of training
programs, the way we teach the residents,
the way we’ve been taught; using the medical
providers, obtaining the consult and such.
This is what we do and what we’re trained to
do, what I expect my residents to do, what I
have to demonstrate during accreditation
visits within a residency program.
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Plaintiff also forecast evidence, in depositions and in the
complaint, of the proximate cause of death. The portion of Dr.
Behrman’s deposition relevant to causation is quoted below:
[Plaintiff’s attorney]. In your expert
opinion was the violation of the standard of
care that you testified about here today a
proximal contributing cause to [Decedent]
developing bronchopneumonia?
. . . .
[Dr. Behrman]. Within my knowledge as an
oral and maxillofacial surgeon, yes.
Plaintiff also alleged in the complaint that an “autopsy
was performed, and the cause of death was determined to be
bronchopneumonia following comprehensive dental care under
general anesthesia.” The doctor who performed the Decedent’s
autopsy, Dr. Gaffney-Kraft, stated in an affidavit filed by
Plaintiff in this action that “it is [her] opinion within
reasonable medical certainty that the cause of death of [the
Decedent] was bronchopneumonia following comprehensive dental
care including exam, radiographs, cleaning, restoration and
extractions which were performed under general anesthesia
shortly before his death[.]” Dr. Gaffney-Kraft also indicated
in her report of autopsy examination that Decedent’s cause of
death was bronchopneumonia.
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As stated above, the trial court should grant a motion for
summary judgment only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment
as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c); see also
Lord, 191 N.C. App. at 293, 664 S.E.2d at 334. “Where there are
genuine, conflicting issues of material fact, the motion for
summary judgment must be denied so that such disputes may be
properly resolved by the jury as the trier of fact.” Howerton
v. Arai Helmet, Ltd., 358 N.C. 440, 468, 597 S.E.2d 674, 692
(2004).
Plaintiff contends that she “presented a two-tier approach
on causation.” First, Dr. Behrman opined that the violation of
the standard of care caused the Decedent’s bronchopneumonia;
second, the bronchopneumonia caused the death of the Decedent.
Defendants contend the testimony of Dr. Behrman fails to
establish proximate cause because his testimony fails to satisfy
N.C.G.S. §8C-1, Rule 702 (2009).2
2 Our General Assembly amended N.C.G.S. § 8C-1, Rule 702 in 2011.
2011 N.C. Sess. Laws ch. 283 § 1.3. The amendments apply “to
actions commenced on or after” 1 October 2011. Id. at § 4.2.
The amendments are not applicable to the present case because
the action was commenced on 13 July 2010.
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III. Admissibility of Expert Testimony
Despite the fact that this matter is before us on appeal
from the grant of summary judgment, we address the admissibility
of expert testimony because of our Supreme Court’s analysis in
Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009). In
Howerton, our Supreme Court recognized the differences in the
two issues and commented that a party “will not likely fare as
well” by moving for summary judgment without a preliminary
admissibility determination “because of the inherent procedural
safeguards favoring the non-moving party in motions for summary
judgment.” Howerton, 358 N.C. at 468, 597 S.E.2d at 692; see
also Day v. Brant, ___ N.C. App. ___, ___, 721 S.E.2d 238, 247,
disc. review denied, 366 N.C. 719, 726 S.E.2d 179 (2012) (“Our
Supreme Court, in Howerton, cautioned against the merging of the
two issues.”).
The decision in Crocker was composed of three opinions from
the Supreme Court. All three opinions analyze the admissibility
of expert testimony, regardless of the facts that the appeal was
from an order granting summary judgment and the record indicated
no motion to exclude expert testimony. Crocker, 363 N.C. at
143, 675 S.E.2d at 629. Our Supreme Court concluded that the
trial court’s ruling on summary judgment resulted from “a
misapplication of Rule 702[.]” Id. at 144, 675 S.E.2d at 629.
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Because our Supreme Court in Crocker analyzed the admissibility
of expert testimony even in the absence of a motion to exclude
expert testimony, we analyze the admissibility of expert
testimony in the present case.
“The trial court must decide the preliminary question of
the admissibility of expert testimony under the three-step
approach adopted in State v. Goode, 341 N.C. 513, 461 S.E.2d 631
(1995).” Crocker, 363 N.C. at 144, 675 S.E.2d at 629. “The
trial court thereunder must assess: 1) the reliability of the
expert’s methodology, 2) the qualifications of the proposed
expert, and 3) the relevance of the expert’s testimony.” Id.
A. Reliability of the Expert’s Methodology
As to the first step in the Goode analysis of the
admissibility of expert testimony, Plaintiff contends that Dr.
Behrman “is unquestionably qualified as an expert in the field
of oral surgery.” Defendants contend Plaintiff’s expert
testimony is “not sufficiently reliable to be admissible[,]”
citing Azar v. Presbyterian Hosp., 191 N.C. App. 367, 663 S.E.2d
450 (2008). When testimony on medical causation “is based
merely upon speculation and conjecture, however, it is no
different than a layman’s opinion, and as such, is not
sufficiently reliable to be considered competent evidence on
issues of medical causation.” Id. at 371, 663 S.E.2d at 453.
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However, as discussed above, the opinions of Dr. Behrman
and Dr. Gaffney-Kraft were not based merely upon speculation or
conjecture. Neither Dr. Behrman nor Dr. Gaffney-Kraft used the
words “probably” or “possibly” or otherwise indicated that their
opinions were speculative or conjectural. Rather, Dr. Behrman
answered the question as to his opinion on causation in the
affirmative. Similarly, Dr. Gaffney-Kraft stated that “it is
[her] opinion within reasonable medical certainty that the cause
of death of [the Decedent] was bronchopneumonia[.]” The fact
that Plaintiff’s causation testimony is presented in two steps,
(1) that the dental care caused Decedent’s bronchopneumonia and
(2) that the bronchopneumonia caused Decedent’s death, does not
affect this analysis. Defendants cite no case holding that
causation evidence may not be presented in sequential steps, and
our research reveals none. Defendants have not shown
Plaintiff’s expert testimony is not sufficiently reliable to be
considered competent evidence on causation.
B. Qualifications of the Proposed Expert
As to the second step in the Goode analysis of the
admissibility of expert testimony, Plaintiff contends that,
because Dr. Behrman is an oral surgeon who performs surgical
operations on patients, and the practice of medicine includes
surgery, “there is an overlap between” statutes regulating the
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practice of medicine and the practice of dentistry. Defendants
contend Plaintiff’s experts “cannot be qualified to render
expert opinions on medical causation pertaining to areas of the
body outside the oral cavity.”
Defendants cite Martin v. Benson, 125 N.C. App. 330, 481
S.E.2d 292 (1997), rev’d on other grounds, 348 N.C. 684, 500
S.E.2d 664 (1998), in support of their contention that only a
medical doctor would be qualified to opine as to causation of
bronchopneumonia. In Martin, this Court held the trial court
erred in allowing a neuropsychologist to opine as to a closed
head injury. Id. at 334-37, 481 S.E.2d at 294-96. However, our
Supreme Court held that the plaintiffs waived the right to
appellate review of the testimony because the plaintiffs failed
to object to the evidence at the time it was offered at trial.
Martin, 348 N.C. at 685, 500 S.E.2d at 665.
“If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion.” N.C.G.S. § 8C-1,
Rule 702(a). “[T]he opinion testimony of an expert witness is
competent if there is evidence to show that, through study or
experience, or both, the witness has acquired such skill that he
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is better qualified than the jury to form an opinion on the
particular subject of his testimony.” Terry v. PPG Indus.,
Inc., 156 N.C. App. 512, 518, 577 S.E.2d 326, 332 (2003)
(licensed clinical psychologist was qualified to testify
regarding the cause of depression).
This Court in Martin considered “Rule 702 in light of this
State’s statutes defining the practice of ‘psychology.’”
Martin, 125 N.C. App. at 336, 481 S.E.2d at 295. This Court
noted that N.C. Gen. Stat. § 90-270.3 (1993) required licensed
psychologists to assist clients in obtaining professional help
for problems that fall outside the bounds of the psychologist’s
competence, including “the diagnosis and treatment of relevant
medical” problems. Id. at 337, 481 S.E.2d at 296. From this
statute, this Court concluded it was evident “that the practice
of psychology does not include the diagnosis of medical
causation.” Id. By contrast, in the present case, no statute
requires dentists to assist their clients in obtaining
professional help for problems outside the boundaries of the
dentist’s competence. Martin is thus distinguishable from the
present case.
“The essential question in determining the admissibility of
opinion evidence is whether the witness, through study or
experience, has acquired such skill that he was better qualified
-16-
than the jury to form an opinion on the subject matter to which
his testimony applies.” Diggs, 177 N.C. App. at 297, 628 S.E.2d
at 856 (holding that a nurse qualified to opine as to causation
of injury arising from gallbladder surgery).
Dr. Behrman earned a Doctor of Dental Medicine degree,
completed an internship in anesthesia and a residency in oral
and maxillofacial surgery, is licensed by the New York Board of
Dentistry, and has been certified by the American Board of Oral
and Maxillofacial Surgeons since 1986. As Chief of the Division
of Dentistry, Oral and Maxillofacial Surgery since June 1996,
Dr. Behrman oversees residency programs that provide over 10,000
patient visits each year. He is the Chair of the Institutional
Review Board of a medical center in New York. In the past, he
has held appointments with the University of Pennsylvania School
of Dental Medicine and Memorial Sloan-Kettering Cancer Center
and Hospital. Focusing on the qualifications of Dr. Behrman in
particular, as opposed to the qualifications of licensed
dentists in general, Dr. Behrman’s knowledge, skill, experience,
training, and education qualify him to opine as to the causation
of bronchopneumonia. Dr. Behrman has “acquired such skill that
he was better qualified than the jury to form an opinion” on the
causation of bronchopneumonia. Diggs, 177 N.C. App. at 297, 628
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S.E.2d at 856; see also Terry, 156 N.C. App. at 518, 577 S.E.2d
at 332.
We note that Defendants do not challenge the qualification
of Dr. Gaffney-Kraft to offer her expert opinion that
bronchopneumonia was the Decedent’s cause of death.
C. Relevance of the Expert’s Testimony
Defendants do not challenge the third step of the Goode
analysis, namely, the relevance of the expert’s testimony.
IV. Conclusion
The depositions, affidavits, and pleadings show that
Plaintiff, the nonmoving party, forecast evidence showing that
Defendants’ treatment proximately caused the Decedent’s death
and that there are genuine issues of material fact to be
determined by the jury. The evidence constitutes a sufficient
forecast of evidence for presentment of the case to the jury.
The trial court erred in granting Defendants’ motions for
summary judgment relating to dental care.
Reversed.
Judge McCULLOUGH concurs.
Judge DILLON dissents with separate opinion.
NO. COA13-221
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
LESLIE WEBB, Administratrix of the
Estate of ROBERT B. WEBB, III,
Plaintiff-Appellant,
v. Forsyth County
No. 10-CVS-1990
WAKE FOREST UNIVERSITY BAPTIST
MEDICAL CENTER, UNIVERSITY DENTAL
ASSOCIATES, NORTH CAROLINA BAPTIST
HOSPITAL, WAKE FOREST UNIVERSITY,
WAKE FOREST UNIVERSITY PHYSICIANS,
SHILPA S. BUSS, DDS, and REENA
PATEL, DDS,
Defendants-Appellees.
DILLON, Judge, dissenting.
At the summary judgment hearing below, Plaintiff relied on
the opinions of two dentists – Dr. Thomas David and Dr. David
Behrman – as her forecast of evidence to establish that (1) the
provision of dental care by Defendants to Robert B. Webb, III,
(Decedent) violated the standard of care for dental
professionals; and that (2) this violation proximately caused
Decedent to develop bronchopneumonia.3 Because I do not believe
that the trial court abused its discretion under N.C. Gen. Stat.
3 Plaintiff relied upon the opinion of a medical doctor that
Decedent’s bronchopneumonia caused his death. However, this
medical doctor never expressed an opinion as to the cause of the
bronchopneumonia.
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§ 8C-1, Rule 702 by excluding from its consideration the
opinions of these dentists as to the cause of Decedent’s
bronchopneumonia, I respectfully dissent.
Here, Plaintiff bore the burden of producing a forecast of
evidence demonstrating “(1) the applicable standard of care; (2)
a breach of such standard of care by [Defendants]; (3) [that]
the injuries suffered by [Decedent] were proximately caused by
such breach; and (4) the damages resulting to [Decedent].”
Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466,
468 (1998). Our Supreme Court has held that “[w]here ‘a layman
can have no well-founded knowledge and can do no more than
indulge in mere speculation (as to the cause of a physical
condition), there is no proper foundation for a finding by the
trier without expert medical testimony.’” Gillikin v. Burbage,
263 N.C. 317, 325, 139 S.E.2d 753, 760 (1964) (citations
omitted).
The theory of Plaintiff’s case, here, is that Defendants
violated the standard of care applicable to licensed dentists,
that this violation proximately caused Decedent to contract
bronchopneumonia, and that Decedent’s bronchopneumonia was the
cause of his death. Defendants do not contend that Plaintiff’s
forecast of evidence regarding the applicable standard of care
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and the breach thereof was insufficient to survive summary
judgment. Indeed, Plaintiff’s two dental experts each stated
their opinions concerning the applicable standard of care for a
licensed dentist in performing Decedent’s dental procedure and,
moreover, that Defendants had violated that standard.4 Rather,
Defendants argue - and the trial court concluded - that these
same dentists did not qualify under Rule 702 to offer an expert
opinion that the violation of the dental standard of care in
this case was the proximate cause of Decedent’s
bronchopneumonia.
The parties do not dispute that Plaintiff’s burden was to
forecast evidence in the form of expert testimony to lay a
proper foundation from which a jury could determine the cause of
Decedent’s bronchopneumonia. The admissibility of expert
testimony on the issue of medical causation is governed by Rule
702(a) of our Rules of Evidence, the relevant version5 of which
provides that “[i]f scientific, technical or other specialized
4 Likewise, Defendants do not contend that Plaintiff’s forecast
of evidence regarding the causal connection between Decedent’s
bronchopneumonia and his death was not sufficient to survive
summary judgment, as this connection was established through the
opinion of a medical doctor.
5 Rule 702(a) was amended for actions commenced after October 1,
2011 to provide a stricter standard on the admissibility of
expert testimony. See State v. McGrady, __ N.C. App. __, __
S.E.2d __ (2014).
-4-
knowledge will assist the trier of fact . . . to determine a
fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training or education, may testify thereto in
the form of an opinion[.]”
In the context of a medical malpractice action, Rule 702(a)
appears less restrictive as to the qualifications of a witness
to provide an expert opinion on medical causation than Rule
702(b) as to the qualifications of a witness to provide an
expert opinion on the appropriate standard of care. For
instance, while an expert testifying as to the standard of care
must generally be “a licensed health care provider,” this Court
has held, in a medical malpractice case, that a witness need not
be a licensed medical doctor in order to offer an expert opinion
as to medical causation, Diggs v. Novant Health, 177 N.C. App.
290, 628, S.E.2d 851 (2006), noting that our Supreme Court has
rejected the notion that only a medical doctor can be qualified
under Rule 702 to give an opinion regarding medical causation,
id. (citing State v. Tyler, 346 N.C. 187, 203-04, 485 S.E.2d
599, 608 (1997)). Accordingly, I believe we are bound to
conclude that Plaintiff’s two dentist experts are not
disqualified, as a matter of law, from offering opinions
regarding Decedent’s onset of bronchopneumonia.
-5-
While it is true that the trial court is “afforded ‘wide
latitude of discretion when making a determination about the
admissibility of expert testimony[,]’” Howerton v. Arai Helmet,
Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citation
omitted), I discern no abuse of discretion in the trial court’s
decision to exclude the opinion testimonies of Drs. David and
Behrman concerning the cause of Decedent’s bronchopneumonia in
the present case. Although Dr. David opined that the standard
care violation was the proximate cause of Decedent’s
bronchopneumonia, he also testified that he was not an expert
qualified to offer an opinion as to the cause of Decedent’s
bronchopneumonia, specifically stating: “Again, I’m not an
expert in that regard, so my only opinion would be as a health
care practitioner and general knowledge in that realm, but I’m
not going to offer an expert opinion.”
Likewise, Dr. Behrman stated in response to a question from
Plaintiff’s counsel that it was his opinion that the standard of
care violation caused Decedent’s bronchopneumonia; however, he
qualified his response in stating that his opinion was “[w]ithin
[his] knowledge as an oral and maxillofacial surgeon” and that
he “would defer [his] opinions related to the development of
[Decedent’s] bronchopneumonia to a medical doctor.” Further Dr.
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Behrman acknowledged that Decedent was a medically complex
patient.
The majority cites the three-pronged analysis set out by
our Supreme Court in State v. Goode, 341 N.C. 513, 461 S.E.2d
631 (1995), which the trial court must use in determining the
preliminary issue of the admissibility of expert testimony. I
disagree with the majority’s conclusion with respect to the
first prong of the analysis, that the methodology employed by
Drs. David and Behrman in determining the cause of Decedent’s
bronchopneumonia was reliable. Plaintiff does not point to any
testimony where either dentist discussed the methodology by
which he determined the cause of Decedent’s bronchopneumonia.
Further, I disagree with the majority’s conclusion regarding the
second prong of the analysis, that Drs. David and Behrman were
qualified to offer expert opinions as to the cause of Decedent’s
bronchopneumonia. Plaintiff does not point to any testimony
indicating that either dentist possessed the requisite
“knowledge, skill, experience, training or education” to state
an opinion with any degree of certainty that it was Defendants’
conduct that caused Decedent’s bronchopneumonia. In other
words, I do not believe that a trial court abuses its discretion
as gatekeeper in excluding the opinion testimony of a witness
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concerning the cause of bronchopneumonia in a patient with a
complex medical history simply because the witness testified
that he has worked in the health care profession and has
extensive experience in dental surgery, but otherwise provided
no testimony indicating that he has any expertise in determining
the cause of bronchopneumonia. Accordingly, I would vote to
affirm the trial court’s decision to exclude this testimony.