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Billings v. Rosenstein10/18/2005
is Court held that a doctor could testify regarding the standard of care when the doctor was licenced in the State of North Carolina and practiced in multiple communities within the State, observed the community of Rocky Mount, North Carolina as well as noted the size of the hospital, and testified that the population and median income of Rocky Mount was similar to communities in which he practiced. Pitts, 167 N.C. App. at 198, 605 S.E.2d at 156-57.
In this case, Dr. Kaplan completed two years of his residency training and one year for a fellowship at Duke University in North Carolina. Dr. Kaplan is licensed in North Carolina and worked in Durham and Fayetteville. He has also given lectures in North Carolina on eclampsia and epilepsy seizures. Although Dr. Kaplan has never been to Wilkes Regional Medical Center and has no personal knowledge about Wilkes Regional Medical Center, he studied the demographic data of Wilkes County. Dr. Kaplan testified thathe was familiar with the standard of care for a neurologist in the Wilkes County area based on his "own experience in North Carolina, and working in Fayetteville, as well as experience with the patients being sent in from outlining areas. And it's based on learning of the demographic data of Wilkes County."
Like in Coffman, where the doctor based his opinion of the relevant standard of care on demographic data and his familiarity with similar communities, Coffman, 153 N.C. App. at 624, 571 S.E.2d at 259, Dr. Kaplan based his opinion of the standard of care of neurologists in Wilkes County on demographic data and his familiarity with similar communities. Also, like in Pitts and Coffman, Dr. Kaplan is licensed in the State of North Carolina and has practiced in multiple communities in the State. See Pitts, 167 N.C. App. at 198, 605 S.E.2d at 156; Coffman, 153 N.C. App. at 624, 571 S.E.2d at 259. Accordingly, we find that Dr. Kaplan demonstrated that he was familiar with the standard of care in Wilkes County. See Pitts, 167 N.C. App. at 197, 605 S.E.2d at 156.
Also, the standard of care must be established by a licenced health care provider who specializes in the same or similar specialty as the medical professional. N.C. Gen. Stat. § 8C-1, Rule 702(b) (2004). Dr. Mascenik testified that he has a specialty in general consulting neurology. Dr. Kaplan is a board certified neurologist. Therefore, Dr. Kaplan specializes in the same specialty as Defendant Dr. Mascenik. N.C. Gen. Stat. § 8C-1, Rule 702(b).
We conclude that the Billingses' expert witness demonstrated that he was sufficiently familiar with the standard of care "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" as to offer relevant and competent evidence regarding the alleged negligence by Dr. Mascenik. N.C. Gen. Stat. § 90-21.12. Accordingly, Dr. Kaplan was competent to testify as an expert witness to establish the appropriate standard of care of a neurologist in Wilkes County.
Dr. Kaplan also offered testimony that raised issues of material fact regarding whether Dr. Mascenik breached the standard of care. See Bruce-Terminix Co., 130 N.C. App. at 733, 504 S.E.2d at 577. Dr. Kaplan testified that he "believed [Dr. Mascenik] breached the standard of care in not making the diagnosis of the eclampsia." As the evidence, taken in the light most favorable to the Billingses, presents issues of material fact regarding Dr. Mascenik's breach of the standard of care, summary judgment was not appropriate. Id.
Accordingly, we reverse the trial court's grant of summary judgment and remand this case for tr
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