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Formyduval v. Bunn6/20/2000
ified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.
Rule 702 was amended in 1995, with the amendments effective 1 January 1996 and applicable to all cases filed on or after that date. See 1995 N.C. Sess. Laws ch. 309, ยง 1. The parties concede that the amended version of the Rule applies to the instant action, which was refiled 19 August 1997. We assume without deciding that the parties are correct, and thus apply Rule 702, as amended, to the case sub judice.
The amended rule retains the language quoted above and adds several provisions relating specifically to expert witnesses testifying to the appropriate standard of care in medical malpractice actions. See Andrews v. Carr, ___N.C. App. ___, ___, 521 S.E.2d 269, 273 (1999), disc. review denied, ___N.C. ___, ___ S.E.2d ___ (2000). Rule 702(b)(1) governs expert testimony on the "appropriate standard of health care" offered against or on behalf of a "specialist," while Rule 702(c) governs such testimony offered against or on behalf of a "general practitioner:"
(b) In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state and meets the following criteria:
(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
a. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or
b. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.
(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:
a. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or
b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
(c) Notwithstanding subsection (b) of this section, if the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the action, must have devoted a majority of his or her professional time to either or both of the following:
(1) Active clinical practice as a general practitioner; or
(2) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the general practice of medicine.
Both parties agree that (1) defendant in this case is a "general practitioner," such that Rule 702(c) governs the instant action; and, (2) none of plaintiff's proffered witnesses were engaged
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