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Formyduval v. Bunn6/20/2000
Appeal by plaintiff from orders entered 14 April 1999 by Judge Abraham Penn Jones in Columbus County Superior Court. Heard in the Court of Appeals 27 April 2000.
Plaintiff Marie T. FormyDuval, administratrix of the estate of Hartwell B. FormyDuval (decedent), appeals from the trial court's orders (1) prohibiting her expert witnesses from testifying as to the applicable standard of care and (2) dismissing her wrongful death claim against defendant. We affirm.
Defendant is a physician practicing as a general practitioner in Whiteville, North Carolina, whose medical training included four years of medical school and a one year internship. Decedent first became a patient of defendant in 1976. On 26 August 1993, decedent, complaining of red spots on his legs and ankles and blue spots on his forearms and legs, was seen by defendant in defendant's office. It appears from the record that defendant drew blood from decedent and sent the blood sample to a lab in Burlington for analysis.
Plaintiff alleges the analysis of the blood sample was returned to defendant's office Friday, 27 August 1993, but that defendant did not inform decedent or plaintiff of the results of the analysis until 31 August 1993. On that date, decedent returned for a scheduled follow-up visit with defendant, at which defendant diagnosed decedent with thrombocytopenia purpura. Defendant alleges he implored decedent to be hospitalized to treat his condition, but decedent refused hospitalization.
Plaintiff called defendant after decedent's appointment, and alleges she was not informed of defendant's recommendation that decedent be hospitalized. On 2 September 1993, decedent complained of a severe headache and blurry vision, and was taken to defendant's office by plaintiff. Defendant advised plaintiff to immediately take decedent to the emergency room. Decedent died at the hospital 3 September 1993.
Plaintiff originally filed suit against defendant in 1995, but took a voluntary dismissal of that action and subsequently refiled on 19 August 1997. See N.C.G.S. § 1A-1, Rule 41(a) (1999). Plaintiff's refiled action alleged, inter alia, defendant "failed to properly refer [decedent] to specialists," should have "taken a more aggressive approach to [decedent's] treatment, including hospitalization," and upon receiving the blood test results, "should have called ecedent . . . and insisted that he go to the hospital." Defendant answered 28 August 1997 denying his negligence and asserting decedent's contributory negligence in bar of plaintiff's claims.
Trial began 12 April 1999. After hearing opening statements from both parties, the trial court heard argument regarding whether the expert medical witnesses plaintiff wished to call at trial, Dr. Lloyd McCaskill (Dr. McCaskill), Dr. Douglass Hammer (Dr. Hammer), and Dr. Eugene Paschold (Dr. Paschold), were qualified to testify against defendant pursuant to N.C.G.S. § 8C-1, Rule 702(c) (1999) (Rule 702). The parties also conducted a voir dire examination of Dr. McCaskill. The trial court then ruled, pursuant to defendant's Motion to Exclude Testimony of Expert Witnesses, that plaintiff's experts were not qualified to testify as to the applicable standard of care. Plaintiff thereupon rested her case, and defendant's subsequent motion for directed verdict was granted by the trial court. The sole issue on appeal is whether plaintiff's witnesses were properly disqualified.
Rule 702 governs the admissibility of expert testimony. Prior to 1996, Rule 702 stated:
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 qual
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