 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pitts v. Nash Day Hospital12/7/2004
s a matter for the jury to determine, not the trial judge. I disagree.
It is the duty of the trial judge to determine whether an expert medical witness can render an opinion under N.C. Gen. Stat. § 90-21.12 and Rule 702 of the Rules of Evidence. Taylor v. Abernethy, 149 N.C. App. 263, 272, 560 S.E.2d 233, 239 (2002), disc. review denied, 356 N.C. 695, 579 S.E.2d 102 (2003). Furthermore, in none of the cases in which this court considered N.C. Gen. Stat. § 90-21.12, was the issue of similar communities left to the jury to decide. Smith v. Whitmer, 159 N.C. App. 192, 582 S.E.2d 669 (2003); Leatherwood v. Ehlinger, 151 N.C. App. 15, 564 S.E.2d 883 (2002); Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002), disc. review denied, 356 N.C. 668, 577 S.E.2d 111 (2003); Tucker v. Meis, 127 N.C. App. 197, 487 S.E.2d 827(1997); Henry v. Southeastern OB-GYN Assocs., P.A., 145 N.C. App. 208, 550 S.E.2d 245 (2001). It was for the trial court to determine whether Dr. Strickland was qualified as an expert in the area of his testimony and whether his testimony was relevant. Howerton v. Arai Helmet, Ltd., ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2004). In this case, without a showing of "same or similar communities," Dr. Strickland was not qualified as an expert, nor was his testimony relevant on the appropriate standard of care. I would find this argument to be without merit.
V. No Requirement of Expert Testimony
Finally, plaintiff contends it was improper for the court to direct verdict in favor of defendants because the alleged negligence in this case was of a type that the jury could determine without the testimony of an expert. I disagree.
To prevail in a medical malpractice case a plaintiff must show "`(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.'" Smith, 159 N.C. App. at 195, 582 S.E.2d at 671 (citations omitted). Generally, expert testimony is required when the standard of care and proximate cause are matters involving highly specialized knowledge beyond that of laymen. Smithers v. Collins, 52 N.C. App. 255, 260, 278 S.E.2d 286, 289 (1981). However, expert testimony is not necessary in all medical malpractice cases to establish the standard of care or proximate cause. Id. This is true, especially where the jury, based on its common knowledge and experience, is able to understand and judge the actions of the doctor. Id. This rule has been applied in the case of taking and recording a patient's vital signs and the placement of bedpans. Henry, 145 N.C. App. 208, 211, 550 S.E.2d 245, 247 (2001). This case now before us is not such a case, as it deals with laparoscopic surgery and the post-operative treatment of a surgery patient. This is beyond the "ken of laymen." I would find this assignment of error to be without merit.
VI. Summary
Appellant has failed to demonstrate that the trial judge abused his discretion in excluding the testimony of Dr. Strickland. Plaintiff's remaining arguments are also equally unavailing. I would affirm the trial court.
Page 1 2 3 4 5 6 7 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|