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Henry v. Southeastern OB-GYN Associates8/7/2001
an a plaintiff's expert. There is no logical reason to treat the testimony of a defendant's expert witness differently than the testimony of a plaintiff's expert witness in terms of the type of evidence required by G.S. § 90-21.12 for establishing the applicable standard of care.
As the majority opinion points out, where an expert testifies regarding a uniform standard of care across the country, it is vital that he also specifically testify that he is familiar with the standard of care in the community in question or similar communities based on his assertion that the uniform standard is, in fact, the standard practiced in the community in question. See Tucker v. Meis, 127 N.C. App. 197, 487 S.E.2d 827 (1997) (holding that this requirement applies to cases in which an expert bases his opinion upon either a purported state-wide standard of care or a purported national standard of care); Howard v. Piver, 53 N.C. App. 46, 52, 279 S.E.2d 876, 880 (1981). In Tucker, we described this necessary element as "the statutorily required connection" between a purported uniform or state-wide standard of care and the same or similar community rule mandated by G.S. § 90-21.12. Id. at 198-99, 487 S.E.2d at 829. However, I disagree with the assertion that Dr. Chauhan "failed to testify in any instance that he was familiar with the standard of care in Wilmington or similar communities." Dr. Chauhan testified during his deposition that he was familiar with the applicable standard of care in Wilmington in 1990. His testimony was based on his assertion that the standard of care for prenatal treatment in Wilmington, North Carolina in 1990 was the same as that in any other location in the United States, and that he was familiar with this uniform standard. This is precisely the "statutorily required connection" discussed in Tucker. In my view, the only reason this testimony was not admitted at trial is because the trial court incorrectly ruled that Dr. Chauhan's deposition testimony precluded him from testifying at trial as to his familiarity with the standard of care for prenatal treatment in Wilmington in 1990.
Because plaintiffs could not establish the applicable standard of care without the excluded testimony of Dr. Chauhan, the trial court granted defendants' motion for directed verdict at the close of plaintiffs' evidence. I believe this constitutes reversible error as well. Had Dr. Chauhan's testimony been admitted at trial, as I believe it should have been, defendants would not have had grounds for a directed verdict in their favor. In considering a motion for directed verdict, the question presented is whether the evidence, viewed in the light most favorable to the non-movant, is sufficient to submit the case to the jury. Clark v. Perry, 114 N.C. App. 297, 304, 442 S.E.2d 57, 61 (1994). Where an expert testifies that the standard of care for a particular type of treatment is uniform across the country and does not vary depending on the community, and further testifies that he is familiar with this uniform standard of care, such testimony is admissible and should be considered by the jury. See Baynor, 125 N.C. App. at 278, 480 S.E.2d at 421. This is especially the case where the nature of the treatment in question is relatively simple. See Wiggins v. Piver, 276 N.C. 134, 138, 171 S.E.2d 393, 395-96 (1970); Howard, 53 N.C. App. at 51-52, 279 S.E.2d at 880. In the instant case, Dr. Chauhan's testimony indicated that the alleged negligence by defendants included the failure to undertake certain medical procedures that are considered basic and fundamental in the area of prenatal treatment.
For the reasons stated herein I respectfully dissent. I would reverse the trial court's order granting defendants' mot
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