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Weatherford v. Glassman6/2/1998
amiliar with the standards of practice of physicians in similar communities with the same or similar training and experience of defendant, defendant did not breach the applicable standard of care. This evidence was sufficient to shift the burden to plaintiff to show an issue of fact regarding the standard of care defendant owed to plaintiff which would defeat summary judgment.
In opposition to defendant's summary judgment motion, plaintiff alleged that defendant's standard of care in his treatment of plaintiff was "below the standard of care of a surgeon of his training and experience practicing in Henderson County or a similar community . . . ." In support of this allegation, plaintiff submitted the deposition testimony of Dr. Steven Mendelsohn. Plaintiff avers that Dr. Mendelsohn's answer to a hypothetical question posed by plaintiff's counsel constituted a sufficient forecast of evidence of defendant's failure to conform to the applicable standard of care. However, Dr. Mendelsohn testified in his deposition that he had not reviewed any of the medical records pertaining to plaintiff's claim nor did he have an opinion as to the standard of care provided by defendant to plaintiff, as he was not familiar with the experience and training of defendant.
It is well established that when affidavits are offered in opposition to a motion for summary judgment, they must "be made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein." N.C. Gen. Stat. ยง 1A-1, Rule 56(e)(1990); see also Kern v. Tri-State Insurance Company, 386 F.2d 754 (8th Cir. 1967)(where the United States Court of Appeals for the 8th Circuit, in addressing a federal claim for wrongful termination of an insurance contract, stated that the federal rules' equivalent of Rule 56(e) "specifically provides that such affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence . . . [, and] hese mandatory provisions must be complied with." Id. at 756 (citations omitted)); Walling v. Fairmont Creamery Co., 139 F.2d 318, 322 (8th Cir. 1943); Roucher v. Traders & General Insurance Company, 235 F.2d 423, 424 (5th Cir. 1956). Further, this Court has held that a defendant's unverified pleadings are insufficient to defeat a motion for summary judgment since they do not comply with the requirements of Rule 56(e). Venture Properties I v. Anderson, 120 N.C. App. 852, 855, 463 S.E.2d 795, 797 (1995), disc. review denied, 342 N.C. 898, 467 S.E.2d 908 (1996).
Therefore, since Dr. Mendelsohn's answer to the hypothetical question was not based on his review of plaintiff's medical records in connection with this claim, plaintiff has failed to forecast evidence sufficient to establish the standard of care to which defendant was held and whether defendant in fact breached that standard of care.
Finally, plaintiff contends that regardless of whether she presented expert testimony of the applicable standard of care, " he sworn statements of Plaintiff detailing the negligent acts of Defendant make it very clear that the acts of Defendant were so grossly negligent that the `common knowledge' exception to the requirement of expert testimony rule applies." The common knowledge exception applies in situations where a physician's conduct is either (1) grossly negligent, or (2) "the treatment is of such a nature that the common knowledge of laypersons is sufficient to find the standard of care required. . . ." Bailey v. Jones, 112 N.C. App. 380, 387, 435 S.E.2d 787, 792 (1993). The concept of gross negligence embodies willful or wanton conduct of the defendant th
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