Kearney v. Bolling
242 N.C. App. 67
N.C. Ct. App.2015Background
- Kearney sued Dr. Bolling for medical malpractice after a gallbladder surgery with complications, including a bile leak requiring additional surgery.
- The trial court granted a motion in limine to exclude evidence of lack of informed consent and denied Kearney’s mid-trial motion to amend her complaint to add informed-consent theory.
- Dr. Brickman, an expert witness for Kearney, was cross-examined about the American College of Surgeons guidelines, and the trial court allowed it to impeach credibility.
- Dr. Nealon, Bolling’s expert, testified he was familiar with the standard of care in Winston-Salem or similar communities via Beaumont, Texas as a proxy, and the trial court admitted his testimony.
- Kearney’s Rule 9(j) certification did not cover informed consent because her expert conceded he was unaware of that theory; discovery did not support an amendment, so the court excluded the claim; the verdict for Bolling was upheld on appeal.
- The overall outcome: no error in the trial court’s evidentiary rulings or mid-trial discretion, affirming the judgment for Bolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of ACS guidelines cross-exam | Brickman credibility attacked by guidelines | Guidelines admissible to test credibility | No abuse of discretion; cross-examination upheld. |
| Qualification of Nealon as expert | Nealon not familiar with Winston-Salem standard | Nealon sufficiently familiar via similar communities | Court did not abuse discretion; Nealon qualified. |
| Motion in limine and amendment to add informed consent | Should be allowed to pursue informed consent theory | Not supported by Rule 9(j) and discovery | No error; amendment denied; informed consent theory not proven. |
| Rule 9(j) certification scope for informed consent | Rule 9(j) certification included all theories | Certification limited to known theory | No error; certification did not cover informed consent. |
Key Cases Cited
- Williams v. CSX Transp., Inc., 176 N.C.App. 330 (2006) (abuse-of-discretion review for evidentiary rulings; broad cross-examination allowed)
- Henry v. Southeastern OB-GYN Assocs., P.A., 145 N.C.App. 208 (2001) (similar community requirement not met when expert not shown familiar with similar community)
- Smith v. Whitmer, 159 N.C.App. 192 (2003) (similar community requirement not satisfied by unsubstantiated familiarity)