Seraj v. Duberman

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-873

Filed: 2 August 2016

Wake County, No. 13 CVS 3843

ZARMINA SERAJ, Plaintiff,

v.

ERIC DUBERMAN, M.D. and WESTERN WAKE SURGICAL, P.C., Defendants.

Appeal by Plaintiff from order entered 13 January 2015 by Judge Paul G.

Gessner in Wake County Superior Court. Heard in the Court of Appeals 14 January

2016.

Anglin Law Firm, PLLC, by Christopher J. Anglin, for Plaintiff-Appellant.

Yates, McLamb & Weyher, L.L.P., by John W. Minier and Andrew C. Buckner,

for Defendants-Appellees.

HUNTER, JR., Robert N., Judge.

Plaintiff appeals from a trial court order granting summary judgment in favor

of Defendants. The trial court stated Plaintiff failed to introduce evidence showing

proximate causation, an element of medical malpractice. We reverse the trial court’s

grant of summary judgment.

I. Factual and Procedural Background

On 18 March 2013, Plaintiff filed an unverified complaint alleging Dr.

Duberman committed medical malpractice during an operation on Plaintiff’s arm.

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Plaintiff alleged the following acts of negligence: failure to perform tests to determine

the nature of Plaintiff’s benign tumor, failure to perform tests to rule out any nerve

or vascular involvement, failure to identify and protect Plaintiff’s right median nerve,

and negligent injury to Plaintiff’s right median nerve. In failing to perform these

tests and in these actions, Plaintiff alleges, Dr. Duberman failed to provide medical

care in accordance with the training and experience of a physician practicing in the

same or a similar community. Plaintiff alleges that her injuries were a “direct and

proximate result of [Dr. Duberman’s] negligence[.]” The complaint also names

Western Wake Surgical as a defendant, asserting Dr. Duberman’s negligence

occurred within the scope of his duties as an employee. To comply with Rule 9(j) of

the North Carolina Rule of Civil Procedure, Plaintiff stated the following:

[T]he medical care rendered by the defendants and/or their

employees and agents and all medical records pertaining

to the alleged negligence that are available to the plaintiff

after reasonable inquiry have been reviewed by persons

who are reasonably expected to qualify as expert witnesses

under Rule 702 of the Rules of Evidence and who are

prepared and willing to testify that the medical care

provided to [Plaintiff] did not comply with the applicable

standards of care.

On 17 May 2013, Defendants Duberman and Western Wake Surgical filed an

unverified answer generally denying Plaintiff’s allegations. In addition, Defendants

asserted the defenses of contributory negligence and failure to comply with Rule 9(j)

as well as a statutory cap on damages.

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Defendants filed a motion for summary judgment on 17 October 2014. In their

motion, Defendants argued no genuine issue of material fact existed as to “whether

any act or omission by defendants was a proximate cause of Plaintiff’s alleged injury.”

In support of their motion, Defendants filed the transcripts of five depositions, which

we summarize below.

A. Plaintiff’s Deposition

First, Defendants attached the transcript of Plaintiff’s deposition taken 27

September 2013. Plaintiff, born in Kabul, Afghanistan, moved to California in 1980.

When she moved to North Carolina around the year 2000, she had no ongoing medical

problems other than dry eyes. Around 2006, she began to experience a pressure on

her head. Following an MRI, doctors found a tumor in her head, and she had to

undergo surgery. After the surgery, Plaintiff no longer felt the pressure in her head.

Subsequently, she noticed a swelling on her right arm. Approximately a month

after noticing the swelling, she made an appointment with Dr. Newman. He told her

the swelling was a “fatty lump” which could be removed by surgery. Dr. Newman

referred Plaintiff to a surgeon, Dr. Duberman. Plaintiff made an appointment with

Dr. Duberman, and went to his office where he examined her arm. He also diagnosed

the swelling on Plaintiff’s arm as a fatty tumor or lipoma. Dr. Duberman then

discussed surgery options with Plaintiff. He explained she could undergo the

procedure while awake, with local anesthesia, or she could be put to sleep for the

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procedure. He said the procedure would be “simple” so Plaintiff chose local

anesthesia.

On the day of the procedure, Dr. Duberman administered a local anesthetic.

Plaintiff said the procedure hurt “[a] lot,” explaining she started screaming “[a]s soon

as he start[ed] cutting [my] arm.” She believed the procedure lasted approximately

one hour, during which time Dr. Duberman gave her additional local anesthesia. The

second dose of local anesthesia was not enough to quell the pain, so Dr. Duberman

stopped and decided to schedule a time to conclude the procedure under sedation

because she was unable to miss work.

Plaintiff scheduled the second surgery for 13 April 2012, approximately six

months after the first attempted procedure. She did not undergo any tests or scans

before the second surgery. Before the operation, Dr. Duberman estimated it would

take him one-and-a-half hours to remove the mass. The surgery took three hours

because the tumor was too deep and there was bleeding.

On 14 April 2012, Plaintiff called Dr. Duberman because she experienced pain

and numbness in her fingers. He assured her the pain and numbness was normal.

The next day, Plaintiff’s pain and numbness increased and she could not hold things.

She called Dr. Duberman again, and he said, “I didn’t do anything wrong.” She told

him she thought a nerve may be cut. They discussed scheduling an MRI. The MRI

showed a “very complicated” tumor with nerves surrounding it. Following the MRI,

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Dr. Duberman referred Plaintiff to a specialist at UNC-Chapel Hill. Plaintiff went to

see a doctor at UNC but did not remember any further details.

Plaintiff sought a second opinion at Duke. After seeing multiple doctors from

multiple specialties, they told her she had nerve damage resulting from surgery. Due

to the complicated nature of the tumor, doctors at Duke refused to perform surgery

on Plaintiff to remove the remainder of the tumor.

Plaintiff next went to Houston, Texas to seek treatment from Dr. Jimmy F.

Howell, M.D. He successfully removed the remainder of the tumor. Following the

surgery in Texas, Dr. Howell told Plaintiff one of her nerves had previously been cut.

At the time of the deposition, Plaintiff took prescription medications for

anxiety, depression, and thyroid problems as well as ibuprofen daily for pain relief.

Prior to the surgeries, Plaintiff worked five days a week for eight to nine hours per

day teaching the Dari language to special forces units deploying to Afghanistan. In

June 2012, when her contract ended, she did not actively seek to renew her contract

or seek another job because of her hand. She explained teaching requires writing on

the blackboard and typing, things she is no longer able to do. Now, Plaintiff collects

Social Security disability in the amount of $1,700.00 per month. She explained the

pain and loss of use of her hand also caused her to discontinue cooking, gardening,

and exercising. It also affected her relationship with her husband, and she began to

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sleep in a different room because the pain caused her to toss and turn in her sleep.

Since the second surgery, Plaintiff’s depression worsened.

B. Mahamoud Seraj Deposition

Plaintiff’s husband, Mahamoud Seraj (“Mahamoud”), gave a deposition on 9

April 2014. He was born in Afghanistan, and moved to France during high school.

As a design engineer, he moved to California and later to Apex, North Carolina. He

and Plaintiff married in 1994. Together, they have one daughter and both Plaintiff

and her husband have one child each from previous marriages.

Mahamoud estimated Plaintiff went to the doctor approximately two or three

weeks after she showed him the lump on her arm. When Plaintiff returned from

seeing Dr. Newman for the first time, Plaintiff told him the lump was “fatty tissue.”

Dr. Newman sent Plaintiff to a surgeon, Dr. Duberman. Regarding the first surgery

using local anesthesia, Mahamoud said, “She just said it was very painful, and Dr.

Duberman said, ‘We have to do that under general anesthesia because,’ from his

opinion, [the lump] was deeper than what he was thinking.” Following the first

surgery, his wife did not experience continuing pain.

Following the second surgery, “Dr. Duberman told her the tumor was very

deep. He couldn’t extract it. All he could do is stop [the] bleeding.” Immediately

after the surgery, she complained of “pulsing” in her fingers, with no feeling in two

fingers. The weekend after the surgery, she described pain, numbness, pulsing, and

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burning in her hand. Mahamoud remembers Plaintiff calling Dr. Duberman two

times after the surgery. She also had problems holding things.

Mahamoud accompanied Plaintiff to doctors’ appointments at UNC and Duke

following the second surgery. A doctor at UNC “said that it’s very risky to do surgery

on this, and they said that, from the symptoms that they are seeing, some nerves are

cut.” The doctors at Duke were “shocked” Dr. Duberman did not have an MRI taken

before the first surgery. The doctors at Duke diagnosed Plaintiff as having a Masson’s

tumor. It is a rare, benign tumor which would be risky to remove. As Mahamoud

understood it, the tumor was “tangled around nerves” and it was touching an artery.

Following the second surgery, Plaintiff had approximately one week remaining

on her contract to teach the Dari language to special forces troops and had to

administer their final exam. Due to her arm, Plaintiff was unable to drive.

Mahamoud drove Plaintiff to class every day that week, and stayed in the classroom

with her during class. Plaintiff no longer teaches, in part because she cannot drive

and Mahamoud cannot miss work to drive her to work every day. Since Plaintiff lost

the full use of her right hand, Mahamoud explained, she’s been suffering from anxiety

and depression. She takes multiple medications, which have helped, but they make

her act “like a zombie.”

C. Dr. Duberman Deposition

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Dr. Duberman gave a deposition on 11 March 2014. Dr. Duberman attended

undergraduate and medical school at Columbia University. He completed his

residency at Tufts New England Medical Center. He also completed a fellowship in

colon and rectal surgery at the Robert Wood Johnson School of Medicine. Currently,

Dr. Duberman is an employee and an owner of Western Wake Surgical. He performs

both general and colon and rectal surgeries.

Dr. Duberman operated on approximately 100 upper extremity masses prior

to Plaintiff’s surgery. About 80 percent of those were lipomas. Generally, he could

tell whether a mass was a lipoma or something else based on the texture and feel of

the mass. He did not generally perform an MRI before operating on an upper

extremity mass.

Discussing Plaintiff, Dr. Duberman recalled “her presenting to the office with

this soft tissue mass in her arm. And I remember examining her arm. It was mobile,

non-tender, soft – soft tissue mass. And I recall asking her if she wanted it removed

and her stating that she would like it removed.” Prior to Plaintiff’s first surgery, Dr.

Duberman did not perform or order an MRI on Plaintiff because he does not believe

imaging is needed for “soft tissue masses.” Based on his physical examination of

Plaintiff, he diagnosed her with a lipoma. During Plaintiff’s first visit to Dr.

Duberman’s office, he identified the lump on her right arm as a lipoma. He was

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concerned about the rapid enlargement of the mass, but still believed the mass to be

a lipoma.

During the first procedure, performed at WakeMed Cary Hospital, he

remembered using local anesthesia and Plaintiff being uncomfortable during the

procedure. The mass was completely within Plaintiff’s muscle. When he made the

incision, he could only see muscle, with the tumor bulging from within the muscle.

He could not see the tumor itself during the first surgery, only the muscle

surrounding the tumor. Following the first surgery on 11 November 2011, Dr.

Duberman still believed the mass to be a lipoma.

During the second surgery, Dr. Duberman opened the previous incision. He

opened the fascia of the muscle and spread the muscles cross-wise. At this time,

“copious bleeding ensued.” Dr. Duberman applied pressure to the area with a sponge

for approximately five minutes. After controlling the bleeding, he continued to dissect

into the muscle. He noted seeing a superficial nerve. Below the surface of the muscle

belly, he saw a “vascular mass.” He identified it as a vascular mass because it was

bleeding. Dr. Duberman then conducted a biopsy from the surface of the mass. Then,

he closed the incision layer by layer. He then scheduled a follow-up MRI and referred

her to a surgical oncologist, Dr. Doug Tyler at Duke.

During the two surgeries on Plaintiff, Dr. Duberman did not see the median

nerve, a large nerve in the arm. He also did not notice any neural dysfunction

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following the second surgery. He did not conduct a neurological examination because

it was not his practice to do so on patients with soft tissue tumors. He explained the

median nerve is a visible structure, and “had it been encountered it would’ve been

protected.”

The biopsy identified Plaintiff’s tumor as a Masson’s tumor. Before Plaintiff’s

surgery, Dr. Duberman had never heard of a Masson’s tumor.

D. Dr. Williamson Deposition

Dr. Barry Williamson, an expert witness for Plaintiff and a board certified

general surgeon, also gave a deposition on 30 May 2014. In Dr. Williamson’s

professional opinion, Dr. Duberman should have ordered diagnostic tests following

the first surgery when he did not find what he expected to find. He should not have

conducted the second operation without performing tests first. “The patient should

have been worked up fully for what this mass was. Seeing that it encompassed the

artery and the nerve, [she] should have been worked up completely for any kind of

neurologic dysfunction prior to surgery.”

During the second surgery, Dr. Duberman “injured the median nerve.” Dr.

Williamson found no evidence Dr. Duberman had cut the nerve, only evidence the

nerve was damaged.

Q: [D]o you have an opinion as to the mechanism of that

injury? Did he – was it a direct injury? Was it a

compression injury?

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A: I don’t know. I mean, based on his operative note,

there’s no way to tell. . . .

Q: Do you have an opinion as to whether that tumor could

have been removed without damage to the median nerve?

A: I don’t know that. That’s not my area of expertise.

Q: Do you know whether if the tumor had just been left

alone and no further surgery took place at all whether

there would have been any injury to the median nerve.

A: Impossible to know. Again, Masson’s tumors are fairly

rare, so I don’t know that anybody has a lot of experience

with leaving those behind and seeing what happens. . . .

Q: Tell me about your – you said you had reviewed the

deposition of Dr. Duberman. Tell me, was there anything

in his testimony that you disagreed with?

A: No. No. Again, you know, like I said, the first surgery

that he did, I don’t have a problem with. We see people

here in the office all the time and take lumps and bumps

off, and 95 percent of the time or more you come back with

exactly what you think. But occasionally, you find

something that you’re not expecting. And the decision then

is do you proceed with that or do you stop and do further

workup. And I think that’s where the problem came in, is

he stopped, but he didn’t do any further workup to see why

he didn’t find what he expected. . . .

Q: Dr. Williamson, more likely than not, to a reasonable

degree of medical probability, did Dr. Duberman’s

negligence cause [Plaintiff’s] injury and the sequelae

thereof?

A: Yes.

Q: Dr. Williamson, more likely than not, to a reasonable

degree of medical probability, had Dr. Duberman treated

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[Plaintiff] within the standards of care, would she have

experienced median nerve damage and the sequelae

thereof?

A: No.

He continued by explaining the standard of care of surgeons in Cary would require

testing following the first surgery.

E. Dr. Brigman Deposition

Finally, Defendants attached the deposition of Dr. Brian Brigman to their

motion for summary judgment. A physician in the field of orthopedic oncology, Dr.

Brigman is employed at Duke University Medical Center and is certified in

orthopedic surgery. He is also a member of the Vascular Malformation Team at Duke,

a multi-disciplinary team. Plaintiff came to see Dr. Brigman because of a mass in

her arm. Dr. Tyler, another physician at Duke University Medical Center, referred

Plaintiff to Dr. Brigman.

Dr. Brigman examined Plaintiff and noted she had the symptoms of a median

nerve injury, including numbness and weakness. Potential causes of the nerve injury

included compression from the mass, a traction injury from the surgery, the nerve

losing blood supply, or a direct injury from cutting the nerve. At that time, Dr.

Brigman recommended scheduling another MRI, and suggested surgery may be an

option.

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Plaintiff returned approximately six weeks later for a second appointment. At

that time, Plaintiff complained she was stressed and losing weight due to the tumor.

At the conclusion of the second assessment, Dr. Brigman wrote in his notes: “There

is likely injury to her median nerve, however it is unclear whether it’s from the

previous surgical intervention or if it may be related to compression of the

malformation on the median nerve itself.” Dr. Brigman scheduled a surgery during

Plaintiff’s second visit, but Plaintiff later cancelled the appointment.

On 27 October 2014, Plaintiff filed a cross-motion for summary judgment.

Plaintiff argued there was no genuine issue of material fact as to Dr. Duberman’s

liability for medical negligence, Plaintiff’s claim of respondeat superior against

Western Wake Surgical, and the affirmative defense of contributory negligence.

Attached to the motion, Plaintiff provided affidavits of Plaintiff and Dr. Williamson.

Plaintiff’s affidavit stated Dr. Duberman performed a surgery on Plaintiff’s

arm on 11 November 2011. Before the first surgery, he did not order an MRI or other

imaging of her arm. The second surgery occurred 13 April 2012. Before the second

surgery, Dr. Duberman did not tell Plaintiff she needed an MRI.

Dr. Williamson’s affidavit stated he is a licensed physician in the field of

general surgery. Dr. Duberman should have ordered an MRI prior to the second

surgery on plaintiff. “Without ordering these, Dr. Duberman could not be certain

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what type of mass he was operating on.” As a general surgeon, Dr. Duberman is not

qualified to operate on a Masson’s tumor.

On 13 January 2015, the trial court entered an order granting Plaintiff’s

motion for summary judgment on Plaintiff’s respondeat superior claim. The trial

court also granted Defendant’s motion for summary judgment, noting, “[T]he Plaintiff

has failed to offer sufficient evidence establishing the necessary element of proximate

causation.” The trial court denied Plaintiff’s motion for summary judgment as it

relates to contributory negligence and determined Plaintiff’s constitutional claims

related to the economic damages cap were not ripe for consideration. Plaintiff timely

filed a notice of appeal.

II. Jurisdiction

As an appeal from a final judgment of a superior court, jurisdiction lies in this

Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015).

III. Standard of Review

An order granting summary judgment is reviewed de novo. N.C. State Bar v.

Scott, __ N.C. App. __, __, 773 S.E.2d 520, 522 (2015), appeal dismissed and disc.

review denied, ___ N.C. ___, 781 S.E.2d 621 (2016). Summary judgment is

appropriate only when there is no genuine issue of material fact and any party is

entitled to judgment as a matter of law. In re Will of Jones, 362 N.C. 569, 573, 669

S.E.2d 572, 576 (2008). Summary judgment is appropriate when “the pleadings,

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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. Gen. Stat. §1A-1, Rule

56(c) (2015). When reviewing the evidence on a motion for summary judgment, we

review evidence presented in the light most favorable to the non-moving party.

Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003).

IV. Analysis

To bring a medical malpractice action, the plaintiff bears the burden of

establishing “‘(1) the applicable standard of care; (2) a breach of such standard of care

by the defendant; (3) the injuries suffered by the plaintiff were proximately caused

by such breach; and (4) the damages resulting to the plaintiff.’” Purvis v. Moses H.

Cone Memorial Hosp. Service Corp., 175 N.C. App. 474, 477, 624 S.E.2d 380, 383

(2006) (quoting Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466,

468 (1998)). An actor’s negligence is the proximate cause of harm to another if “(a)

his conduct is a substantial factor in bringing about the harm, and (b) there is no rule

of law relieving the actor from liability because of the manner in which his negligence

has resulted in the harm.” Restatement (Second) of Torts § 431 (2016). The North

Carolina Supreme Court defines proximate cause as follows:

[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, and one from which a person of ordinary

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prudence could have reasonably foreseen that such a

result, or consequences of a generally injurious nature, was

probable under all the facts as they existed.

Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565

(1984) (citations omitted). A court should determine whether the evidence presents

an issue where a “jury may reasonably differ as to whether the conduct of the

defendant has been a substantial factor in causing the harm to the plaintiff[.]”

Restatement (Second) of Torts § 434 (2016). It is then a question for the jury whether

the defendant’s conduct was a substantial factor in causing harm to the plaintiff. Id.

To forecast evidence of proximate causation in a medical malpractice action,

expert testimony is needed. Cousart v. Charlotte-Mecklenburg Hops. Auth., 209 N.C.

App. 299, 303, 704 S.E.2d 540, 543 (2011).

Due to the complexities of medical science, particularly

with respect to diagnosis, methodology and determinations

of causation, this Court has held that where the exact

nature and probable genesis of a particular type of injury

involves complicated medical questions far removed from

the ordinary experience and knowledge of laymen, only an

expert can give competent opinion evidence as to the cause

of the injury. However, when such expert opinion

testimony is based merely upon speculation and conjecture,

it can be of no more value than that of a layman’s opinion.

As such, it is not sufficiently reliable to qualify as

competent evidence on issues of medical causation. Indeed,

this Court has specifically held that an expert is not

competent to testify as to a causal relation which rests

upon mere speculation or possibility.

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Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000)

(internal citation and quotations marks omitted).

To survive a motion for summary judgment in a medical malpractice action,

the plaintiff must “forecast evidence 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 v. Beerman, 191 N.C. App. 290, 293–294, 664 S.E.2d 331, 334 (2008)

(internal citations and quotation marks omitted). “Our Court’s prior decisions

demonstrate that where a plaintiff alleges that he or she was injured due to a

physician’s negligent failure to diagnose or treat the plaintiff’s medical condition

sooner, the plaintiff must present at least some evidence of a causal connection

between the defendant’s failure to intervene and the plaintiff’s inability to achieve a

better ultimate medical outcome.” Id. at 294, 664 S.E.2d at 334.

In Turner v. Duke Univ., 325 N.C. 152, 155–56, 381 S.E.2d 706, 708–09 (1989),

for example, Duke University Medical Center admitted decedent to the hospital for

constipation, cramping, nausea, and vomiting. Id. Defendant, a physician, treated

her for constipation, unable to determine the cause of plaintiff’s symptoms. Id.

Decedent’s condition worsened, but doctors failed to examine her for a number of

hours, during which time she became unresponsive. Id. at 156, 381 S.E.2d at 709.

Surgery revealed decedent’s colon was perforated, and she died of an infection the

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following day. Id. at 156–57, 381 S.E.2d at 709. Plaintiff’s expert testified that the

defendant should have examined decedent sooner, and his failure to conduct an

earlier examination proximately caused her death. Id. at 159–60, 381 S.E.2d at 711.

Had the physician discovered decedent’s perforated colon sooner, plaintiff’s expert

testified, decedent’s life could have been saved. Id. at 160, 381 S.E.2d at 711. “Such

evidence is the essence of proximate cause.” Id. The Court held a question of fact

existed as to whether decedent’s death was caused by defendant’s negligent failure to

diagnose decedent’s condition. Id.

Defendants assert the threshold needed to surmount summary judgment and

proceed to a jury on the issue of proximate cause is that plaintiff probably would have

been better off if not for defendant’s negligence. See Lord, 191 N.C. App. at 300, 664

S.E.2d at 338. Defendants further contend experts must establish “‘[t]he connection

or causation between [Defendant’s alleged] negligence and [Plaintiff’s injury was]

probable, not merely a remote possibility.’” Id. (quoting White v. Hunsinger, 88 N.C.

App. 382, 387, 363 S.E.2d 203, 206 (1988)) (emphasis in original).

However, the rule that proximate causation requires a showing plaintiff

probably would have been better off is not applicable in this case. The rule applies

when there is a negligent delay in treatment or diagnosis. See id. at 296–300, 664

S.E.2d at 336–38. As explained in Katy v. Capriola, 226 N.C. App. 470, 481, 742

S.E.2d 247, 255 (2013), the rule is part of a special jury instruction when the question

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for the jury to consider is whether the injury is proximately caused by the delay in

treatment or diagnosis. See Id.; see also N.C.P.I., Civ. 809.00A (gen. civ. vol. 2014).

Defendants argue Campbell v. Duke Univ. Health Sys., Inc., 203 N.C. App. 37,

45, 691 S.E.2d 31, 36 (2010), prevents “mere speculation” to establish proximate

cause. In Campbell, the plaintiff underwent surgery on his right shoulder. Id. at 38,

691 S.E.2d at 33. One hour after the surgery, plaintiff began to experience pain in

his left arm. Id. at 39, 691 S.E.2d at 33. Plaintiff did not assert the doctrine of res

ipsa loquitur. Id. at 40, 691 S.E.2d at 34. We distinguish Campbell from this case on

its facts. In Campbell, plaintiff’s injury was outside the scope of the surgery whereas

here the injury occurred within the scope of the surgery.

Here, Plaintiff argues Dr. Duberman’s failure to perform testing prior to the

second surgery proximately caused her injuries. Had he ordered an MRI or other

imaging of the lump, she asserts he would have discovered the mass was not a lipoma

and he would not have operated a second time. Not ordering imaging after the first

attempted surgery violated the standard of care. The evidence is sufficient to raise a

factual issue of whether this violation of the standard of care proximately caused

Plaintiff’s injuries. Plaintiff emphasizes Dr. Williamson’s testimony that it is more

likely than not that had Dr. Duberman followed the standard of care, she would not

have experienced nerve damage. Viewing the evidence in the light most favorable to

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Plaintiff, the non-moving party, Plaintiff contends she presented evidence sufficient

to disprove Defendants’ claim that no question of material fact exists. We agree.

Plaintiff met her burden to establish Dr. Duberman’s failure to perform testing

prior to the second surgery was in negligent violation of the accepted standard of

medical care in the community. The question before us is whether Dr. Duberman

presented sufficient evidence that failure to perform testing prior to the second

surgery proximately caused Plaintiff’s injury.

Dr. Brigman’s expert testimony, which is necessary to forecast evidence of

proximate causation in a medical malpractice action, established Dr. Duberman

should not have conducted the second surgery on Plaintiff. Dr. Duberman, as a

general surgeon, is not qualified to operate on a Masson’s tumor. “Without ordering

[tests], Dr. Duberman could not be certain what type of mass he was operating on.”

Had Dr. Duberman ordered the MRI, he would have identified the mass as something

other than a lipoma, and would not have conducted the operation. Dr. Williamson

agreed Dr. Duberman should not have performed the second surgery without

conducting testing first. Dr. Williamson stated: “The patient should have been

worked up fully for what this mass was. Seeing that it encompassed the artery and

the nerve, [she] should have been worked up completely for any kind of neurologic

dysfunction prior to surgery.”

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Viewed in the light most favorable to Plaintiff, the evidence presents disputed

issues of fact so a “jury may reasonably differ as to whether the conduct of the

defendant has been a substantial factor in causing the harm to [P]laintiff.” See

Restatement (Second) of Torts § 434. Plaintiff experienced numbness and pain in her

fingers and hand following the second surgery. There is no evidence she experienced

any numbness or pain in her hand prior to the surgery. According to Dr. Williamson,

the tumor Dr. Duberman attempted to remove “encompassed the artery and the

nerve.” In his professional opinion, Dr. Williamson said Dr. Duberman “injured the

median nerve.” Although Dr. Williamson did not testify conclusively as to whether

Dr. Duberman cut the nerve, his testimony sufficiently established Dr. Duberman

injured Plaintiff’s nerve. We therefore hold the evidence, when viewed in the light

most favorable to the non-moving party, shows a genuine issue of material fact exists.

We recognize that Defendants’ expert disputes Plaintiff’s evidence of

proximate causation and posits differing possibilities explaining the results obtained

in this medical procedure. These differences are jury matters going to the weight and

credibility of the witnesses or which of several events was more likely than not to be

a proximate cause of the injury. Summary judgment is inappropriate where such

factual debates are raised by the evidence and experts differ.

V. Conclusion

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SERAJ V. DUBERMAN

Opinion of the Court

For the foregoing reasons, we reverse the trial court’s summary judgment

order.

REVERSED.

Judges STEPHENS and INMAN concur.

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