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Moore v. Gaston Memorial Hospital8/16/2005
ony 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.
N.C. Gen. Stat. § 8C-1, Rule 702(b)(1). In Allen, our Court held that a general surgeon could not serve as an expert witness in a claim against a family practitioner. Allen, 139 N.C. App. at 350-51, 533 S.E.2d at 817. In agreeing with the trial court in Allen that the plaintiff could not have reasonably believed that her proffered expert would qualify as an expert witness under Rule 702, our Court stated "'the trial court was required to dismiss' plaintiff's cause of action." Id. at 351, 533 S.E.2d at 817 (quoting Keith v. Northern Hosp. Dist. of Surry County, 129 N.C. App. 402, 405, 499 S.E.2d 200, 202 (1998)).
Plaintiff argues that her expert witness, a hospital pharmaceutical expert, satisfied the dictates of N.C. Gen. Stat. § 1A-1, Rule 9 and N.C. Gen. Stat. § 8C-1, Rule 702. Plaintiff's pleading stated that her claim "ha been reviewed by hospital pharmaceutical experts." However, defendant was a gastroenterologist, not a pharmacist. As noted above, a medical malpractice claim "shall be dismissed" unless it specifically meets the statutory requirements. By failing to have her claim reviewed by a gastroenterologist, plaintiff has failed to state a claim upon which relief may be granted. Therefore the order to dismiss plaintiff's complaint against defendant is affirmed.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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