Da Silva v. WakeMed
846 S.E.2d 634
N.C.2020Background
- Dolores Pierce, 76, was treated in WakeMed Cary ER for presumed sepsis; ER physician started IV Levaquin while she remained on chronic prednisone (a corticosteroid).
- Three WakeMed hospitalists (Jenkins, Daud, Afridi) continued Levaquin during hospitalization and ordered continuation at discharge; about a week after stopping Levaquin Pierce suffered an Achilles tendon rupture and later died of complications.
- Executor Raymond Da Silva sued the hospitalists for malpractice; plaintiff proffered Dr. Paul Genecin (board‑certified internist) as the sole standard‑of‑care expert.
- Trial court disqualified Genecin under N.C. R. Evid. 702(b) and entered summary judgment for defendants for lack of expert proof and lack of proximate cause.
- Court of Appeals reversed; the Supreme Court affirmed the Court of Appeals: it held Genecin met Rule 702(b) requirements and his testimony created a genuine factual dispute on proximate cause.
- Justice Newby (joined by Justice Morgan) dissented in part, arguing Genecin lacked the hospital‑practice specialization required by Rule 702(b) and that his causation opinions were insufficient as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Genecin is qualified under N.C. R. Evid. 702(b) to testify against hospitalists | Genecin is a licensed internist whose practice includes inpatient hospital work, he is board certified, treated similar patients, and spent a majority of professional time in active clinical practice the prior year | Genecin is primarily an outpatient internist (not a hospitalist), spends only ~2 months/year inpatient, so he lacks the similar‑specialty practice and majority‑time hospital experience required by Rule 702(b) | Court: Genecin met Rule 702(b) (licensed; similar specialty—internist vs. hospitalist; practice includes the procedures at issue; majority clinical time); trial court erred; expert admissible |
| Whether Genecin’s testimony creates a genuine issue on proximate causation | Genecin opined to a reasonable degree of medical certainty that Levaquin caused the Achilles rupture and that continued/unsafe use by treating physicians was a contributing/proximate cause | Defendants: Levaquin was started by ER physician; risk is low; Genecin conceded stopping Levaquin would only reduce risk (not show it probably caused the rupture), so causation evidence is legally insufficient | Court: Viewing testimony in plaintiff’s favor, Genecin’s statements permit a jury to find the hospitalists’ continued prescription/provision was a proximate cause; summary judgment improper |
| Standard of review for expert‑qualification dispute | Plaintiff: Trial court misapplied Rule 702; statutory interpretation is a question of law subject to de novo review | Defendant: Trial court’s determination of an expert’s qualifications is fact‑intensive and reviewed for abuse of discretion | Court: Applied de novo review to the legal question of Rule 702 interpretation and concluded the trial court erred as a matter of law; noted abuse‑of‑discretion review generally applies to admissions/exclusions but treated statutory application as legal issue |
Key Cases Cited
- State v. McGrady, 368 N.C. 880 (2016) (trial court’s expert‑admission rulings reviewed for abuse of discretion)
- Howerton v. Arai Helmet, Ltd., 358 N.C. 440 (2004) (abuse‑of‑discretion standard for expert admissibility)
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) (federal standards on appellate review of expert exclusion and outcome‑determinative rulings)
- Turner v. Duke Univ., 325 N.C. 152 (1989) (proximate cause in medical malpractice cases ordinarily a jury question)
- King v. Allred, 309 N.C. 113 (1983) (multiple proximate causes preserve jury question, precluding summary judgment)
- FormyDuval v. Bunn, 138 N.C. App. 381 (2000) (definition/recognition of medical specialists under Rule 702)
- Sykes v. Health Network Sols., Inc., 372 N.C. 326 (2019) (summary judgment reviewed de novo)
- McGill v. French, 333 N.C. 209 (1993) (plaintiff must prove causal connection by medical expert testimony)
- Gower v. Davidian, 212 N.C. 172 (1937) (establishes that mere showing another treatment would have reduced risk is insufficient to prove causation)
- Gillikin v. Burbage, 263 N.C. 317 (1965) (expert testimony to a mere possible cause insufficient to create material fact issue)