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Skinner v. Furman4/5/2005
negligence, we have already rejected those contentions. More generally, a review of the jury charge and the evidence offered in this case shows that the charge given by the court accurately stated the law of medical malpractice applicable to the evidence, did not mislead the jury, and was not unfairly prejudicial to plaintiffs. See Wall, 310 N.C. at 195, 311 S.E.2d at 578 ("We find no error in the instructions given by the trial judge to the effect that the law does not hold a physician to a standard of infallibility nor require a degree of skill known only to a few in his profession."); McKinnon, 306 N.C. at 300, 293 S.E.2d at 126 (stating that if the charge is "sufficiently clear that no reasonable cause exists to believe that the jury was misled or misinformed, any exception to the charge will not be sustained even though the instruction could have been more aptly worded"). Accordingly, this assignment of error is overruled.
IV.
Plaintiffs also argue that the trial court erred by not allowing them to cross-examine Dr. Furman with certain deposition testimony of Dr. James McCarrick, an expert witness in pulmonology retained by defendants. While plaintiffs were allowed, during their cross-examination of Dr. Furman, to refer to significant portions of Dr. McCarrick's deposition, the trial court precluded use of other portions. In limiting plaintiffs' use of Dr. McCarrick's deposition, the trial court precluded those portions that the court believed addressed the standard of care for surgeons. Plaintiffs acknowledge that " dmittedly, Dr. McCarrick was not qualified to give standard of care testimony on surgical issues." Dr. McCarrick was a pulmonologist and was unfamiliar with the standard of care for general surgeons applicable at Watauga Hospital. See N.C. Gen. Stat. ยง 90-21.12 (2003) (providing that negligence is determined by 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). Plaintiffs argue, however, that they should have been allowed to offer evidence of "(1) what advice Defendant Furman would have received if he had consulted with a pulmonologist earlier, and (2) what treatment Dan Skinner would have received if a pulmonologist had been earlier involved in his case."
Our review of the excluded portions of Dr. McCarrick's deposition reveal that they do not address that question, but rather go to the standard of care for surgeons. The questionsasked, for example, whether it was "acceptable" for no oxygen saturation levels to be taken for 23 hours and whether a surgeon should take into account the patient's pulmonary status in deciding whether to perform surgery. The questions focused not on pulmonology or oxygen levels, but rather on the propriety of Dr. Furman's actions and what actions Dr. Furman should have taken to remedy the problem. Whether or not Dr. Furman's actions were appropriate can only be viewed "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." N.C. Gen. Stat. 90- 21.12. The excluded questions and responses of Dr. McCarrick involve the local standard of care for surgeons and, accordingly, were _ as the trial court determined _ beyond the scope of Dr. McCarrick's permissible testimony. This assignment of error is also overruled.
No error.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
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