Weatherford v. Glassman6/2/1998
etition for reconsideration denied, 304 N.C. 195, 291 S.E.2d 148 (1981). N.C. Gen. Stat. § 90-21.12 provides the applicable standard of care in medical malpractice actions:
In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
N.C. Gen. Stat. § 90-21.12 (1997). Further, this Court has announced that:
Usually [the question of] what is the standard of care required of a physician or surgeon is one concerning highly specialized knowledge with respect to which a layman can have no reliable information. As to this, both the court and jury must be dependent on expert testimony. Ordinarily there can be no other guide.
Mazza v. Huffaker, 61 N.C. App. 170, 175, 300 S.E.2d 833, 837, disc. review denied, 309 N.C. 132, 305 S.E.2d 734 (1983), petition for reconsideration denied, ____ N.C. ____, 313 S.E.2d 160 (1984).
Summary judgment is a drastic remedy and is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c)(1990); Pressman v. UNC-Charlotte, 78 N.C. App. 296, 300, 337 S.E.2d 644, 647 (1985), disc. review allowed, 315 N.C. 589, 341 S.E.2d 28 (1986). However, summary judgment for the defendant doctor in a medical malpractice action may be appropriate where the plaintiff "fail to produce sufficient evidence of the applicable standard of care, of a breach of that standard of care, and that the damages suffered . . . were proximately caused . . ." by the defendant doctor. Evans v. Appert, 91 N.C. App. 362, 366, 372 S.E.2d 94, 96, disc. review denied, 323 N.C. 623, 374 S.E.2d 584 (1988). In addition, Rule 56(e) of the North Carolina Rules of Civil Procedure provides, in pertinent part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
N.C. Gen. Stat. § 1A-1, Rule 56(e)(1990); see also White v. Hunsinger, 88 N.C. App. 382, 384, 363 S.E.2d 203, 204 (1988).
Plaintiff first contends that defendant's expert witness did not establish a prima facie defense to plaintiff's complaint; therefore, summary judgment was inappropriate. However, as this Court has stated, once a defendant doctor submits affidavits in support of his/her motion for summary judgment which aver that he/she has not breached the applicable standard of care, the burden then shifts to the plaintiff to "come forward with specific facts showing a genuine issue for trial." Beaver v. Hancock, 72 N.C. App. 306, 310, 324 S.E.2d 294, 298 (1985).
In support of his motion for summary judgment, defendant submitted the affidavit of Dr. R. Michael Kennerly. In his affidavit, Dr. Kennerly stated that after reviewing plaintiff's medical records, and being f
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