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Formyduval v. Bunn6/20/2000
tensive care support," resources which defendant in this case, and arguably most general practitioners, do not have. Further, emergency medicine is a specialty recognized by the American Board of Medical Specialties, thus indicating that the practice of emergency medicine itself is a specialized field.
It is also questionable whether Dr. McCaskill devoted the majority of his professional time during the year preceding the incident in question to the "active clinical practice" of medicine as required by Rule 702(c)(1). Clinical is defined as "based on or pertaining to actual experience in the observation and treatment of patients." 2 J.E. Schmidt, Attorney's Dictionary of Medicine C-310 (1999).
On voir dire, Dr. McCaskill testified that some of his duties as Chief of Emergency Medicine at Scotland Memorial were administrative in nature. Plaintiff's brief to this Court indicates that Dr. McCaskill spent only seven and one-half hours per week dealing "hands on [with] patients" at Scotland Memorial, and an additional five hours per week admitting patients seen at the Maxton clinic. This amounts to at most thirteen hours per week out of what plaintiff admits is Dr. McCaskill's normal forty-five to sixty hour work week. When asked on voir dire if he would agree "that in the year preceding August of 1993 you did not devote the majority of your time as a general practitioner," Dr. McCaskill answered, "That's true." However, the trial court did not make findings of fact on this issue, and our decision herein does not rest on this point.
To reiterate, we hold the trial court properly disqualified plaintiff's expert witnesses. As plaintiff tendered no other expert witness to testify on the standard of care applicable to defendant, the trial court also properly granted defendant's motion for directed verdict. See Lowery v. Newton, 52 N.C. App. 234, 237, 239, 278 S.E.2d 566, 570, 571 (directed verdict proper if plaintiff does not offer evidence on standard of care; standard of care in medical malpractice action must be established by expert witness), disc. review denied, 303 N.C. 711 (1981).
In closing, we are mindful of plaintiff's contention that there are virtually no general practitioners still practicing who could testify against each other, such that general practitioners "will be free to treat their patients negligently without having to worry about the consequences of any medical malpractice litigation." Without passing on the merits of this contention, we do observe that the record on appeal is silent as to whether plaintiff sought to avail herself of Rule 702(e), which provides:
Upon motion by either party, a resident judge of the superior court in the county or judicial district in which the action is pending may allow expert testimony on the appropriate standard of health care by a witness who does not meet the requirements of subsection (b) or (c) of this Rule, but who is otherwise qualified as an expert witness, upon a showing by the movant of extraordinary circumstances and a determination by the court that the motion should be allowed to serve the ends of justice.
For the reasons stated herein, the trial court is
Affirmed.
Judges WYNN and HORTON concur.
Page 1 2 3 4 5 6 7 North Carolina Personal Injury Attorneys
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