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Billings v. Rosenstein10/18/2005
To establish the relevant standard of care for a medical malpractice action, an expert witness must demonstrate that he is familiar with the standard of care in the community where the injury occurred, or the standard of care of similar communities. N.C. Gen. Stat. ยง 90-21.12 (2004). In this case, the doctor could testify, as an expert witness, about the relevant standard of care, as he established that he was familiar with the community or a similar community. Accordingly, we reverse the trial court's summary judgment in favor of Defendant. The facts tend to show that in February 2003, Plaintiffs Jennie Lynn Billings and Everette Billings brought an action against Defendants Thomas J. Mascenik, M.D., Jerome H. Rosenstein, M.D., and Foothills Center for Women, P.A., alleging that Defendants negligently treated Ms. Billings, resulting in her "becoming physically debilitated and incapacitated[,]" after having a stroke due to undiagnosed eclampsia. The Complaint further alleged that Dr. Mascenik, a specialist in the filed of neurology, treated Ms. Billings at Wilkes Regional Medical Center in Wilkes County, North Carolina.
In support of their allegations, the Billingses presented expert medical testimony by Dr. Peter Kaplan, M.D., a neurologist practicing in Baltimore, Maryland and a professor at John Hopkins University School of Medicine. Dr. Kaplan worked at Duke University Medical Center in Durham, North Carolina for three years, where he completed his residency and fellowship. Dr. Kaplan had a license to practice medicine in the State of North Carolina, but had not practiced in North Carolina in over fifteen years. While practicing in North Carolina, Dr. Kaplan worked with an outreach program in Fayetteville, North Carolina.
During his deposition testimony, Dr. Kaplan testified that he was familiar with the standard of care for neurologists practicing in the Wilkes County, North Carolina area. Dr. Kaplan said that his familiarization with the standard of care in that area camefrom his personal experience working in North Carolina, specifically, his work in Fayetteville, his experience with patients that are sent from outlining areas, as well as studying the demographic data of Wilkes County. However, Dr. Kaplan did admit that he had never been to Wilkes Regional Medical Center and had no personal knowledge about Wilkes Regional Medical Center.
On 17 May 2004, Dr. Mascenik filed a Motion for Summary Judgment on the grounds that Dr. Kaplan was not qualified to testify as an expert witness as to the relevant standard of care, and the Billingses therefore failed to prove the standard of care. On 16 August 2004, the trial court granted summary judgment in favor of Dr. Mascenik, and later dismissed the claim without prejudice against the two remaining Defendants, Jerome H. Rosenstein, M.D. and Foothills Center for Women, P.A. Plaintiffs appeal from the 16 August 2004 order granting summary judgment.
On appeal, Plaintiffs argue that the trial court erred in granting Dr. Mascenik's Motion for Summary Judgment. We agree.
" he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Also, the evidence presented by the parties must be viewed in the light most favorable to the non-movant. Id. The court should grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissionson 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
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