Da Silva v. WakeMedDa Silva v. WakeMed
Here, we must determine whether an internist proffered by plaintiff to provide standard of care expert testimony against three hospitalists is properly qualified under Rule 702(b) of the North Carolina Rules of Evidence. We conclude that
I. Factual & Procedural History
This case began when a 76-year-old woman, Dolores Pierce, was hospitalized at WakeMed Cary Hospital from 30 October 2012 to 5 November 2012. Mrs. Pierce had been taking a daily dose of prednisone—a corticosteroid used to treat an inflammatory disorder—for years before being hospitalized. At the WakeMed Cary emergency room, she presented with fever, altered mental status, and weakness; she was presumed to have a urinary tract infection. Concerned that an infection had induced sepsis, emergency room personnel collected urine and blood cultures and a physician ordered the antibiotic Levaquin to be administered intravenously.
Levaquin is an antibiotic commonly used to treat infection. Levaquin has a “black box” warning,1 the strongest warning required by the Food and Drug Administration (FDA). The “black box” on Levaquin warns of an increased risk of tendon ruptures in patients over sixty years old and in patients who are
Within hours of arriving at the emergency room, Mrs. Pierce was admitted to a telemetry-intermediate care floor and came under the care of physicians at WakeMed Cary Hospital, three of whom are relevant here: Dr. Jenkins, Dr. Daud, and Dr. Afridi (the hospitalists). All three of these doctors are board certified in internal medicine, and they all identify themselves as hospitalists—physicians who specialize in internal medicine in a hospital setting and care for hospitalized patients.
During Mrs. Pierce‘s stay, each of these hospitalists prescribed her Levaquin and continued her on a daily dose of prednisone. All three doctors testified that they were familiar with Levaquin and its “black box” warning at the time they prescribed the medication. They also testified that they were aware Mrs. Pierce was over the age of sixty and was taking a corticosteroid.
When Mrs. Pierce was ultimately discharged to a rehabilitation facility, Dr. Afridi‘s discharge orders included orders to continue Mrs. Pierce on Levaquin and prednisone. Per those orders, both drugs were administered through 9 November 2012 at the rehabilitation facility. Mrs. Pierce was discharged within the next few days. Roughly a week after her discharge, Mrs. Pierce‘s Achilles tendon ruptured, and she had to undergo tendon repair surgery. She never fully recovered and ultimately died from pneumonia and debility on 7 September 2013.
Raymond Da Silva, the executor of Mrs. Pierce‘s estate, brought this medical malpractice action seeking recovery for the tendon rupture and Mrs. Pierce‘s
During discovery, plaintiff identified experts and provided the deposition of Dr. Paul Genecin as expert testimony on the standard of care in compliance with
Plaintiff appealed. The Court of Appeals unanimously concluded that Dr. Genecin was competent to testify as to the standard of care and that his testimony sufficiently forecasted proximate cause. Da Silva v. WakeMed, 817 S.E.2d 628, 2018 WL 3978021, at *9, *11 (N.C. Ct. App. 2018). As a result, the Court of Appeals reversed the trial court‘s order disqualifying Dr. Genecin as an expert witness, vacated the trial court‘s order granting summary judgment due to lack of expert testimony, and reversed the trial court‘s order granting summary judgment due to lack of evidence of proximate cause. Id. at *11. Defendant filed a petition for discretionary review, which we allowed. We now affirm the decision of the Court of Appeals.
A. Standard of Review
Generally, the trial court‘s decision to allow or disqualify an expert “will not be reversed on appeal absent a showing of abuse of discretion.” State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004)). “The standard of review remains the same whether the trial court has admitted or excluded the testimony—even when the exclusion of expert testimony results in summary judgment and thereby becomes ‘outcome determinative.’ ” Id. at 893, 787 S.E.2d at 11 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142–43 (1997)).
However, when the pertinent inquiry on appeal is based on a question of law—such as whether the trial court properly interpreted and applied the language of a statute—we conduct de novo review.2 Here, plaintiff argues that the trial court erred as a matter of law by misinterpreting and misapplying Rule 702 and disqualifying Dr. Genecin as an expert. Consequently, we review this issue de novo. Morris Commc‘ns Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 365 N.C. 152, 155, 712 S.E.2d 868, 871 (2011) (“Reviewing courts apply de novo review to alleged errors of law[.]“).
(b) In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state and meets the following criteria:
(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
a. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or
b. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.
(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:
a. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or
b. The instruction of students in an accredited health professional school or
accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
(1) Dr. Genecin must be a licensed health care provider in North Carolina or another state;
(2) Dr. Genecin must have the same specialty as the hospitalists or have a similar specialty; if Dr. Genecin has a similar specialty, his specialty must include the performance of the procedure that is the subject of the complaint and he must have prior experience treating patients similar to plaintiff; and
(3) Dr. Genecin must have devoted the majority of his professional time to either the active clinical practice of the same or similar specialty as the hospitalists and/or the instruction of students in the same specialty during the year immediately preceding plaintiff‘s hospitalization.
We examine the record for evidence of each of these three requirements.
First, we note that Dr. Genecin testified in his video deposition that he is a licensed health care provider in Connecticut. Defendant lodged no objection to this testimony.
Second, we must determine whether Dr. Genecin has the same or similar specialty as the hospitalists. The record shows that Dr. Genecin is board certified in internal medicine, meaning that he specializes in and is known as an internist. As noted above, defendant‘s physicians hold themselves out as hospitalists, meaning that they specialize in internal medicine in a hospital setting and care for hospitalized patients. Like, Dr. Genecin, the hospitalists are all board certified in internal medicine. The hospitalists and Dr. Genecin also have similar education, training, and experience. Though Dr. Genecin‘s practice is broader in scope, it includes the scope of the hospitalists’ practice. Dr. Genecin testified that “[a] hospitalist is a job title that an internal medicine doctor can assume by going to work full time for a hospital. The work that a hospitalist does is the same work as any internist who cares for hospitalized patients.” The record reveals no evidence to the contrary. Based on the evidence here that Dr. Genecin and the hospitalists all practice within the same scope of internal medicine, we conclude that the evidence shows that here, internist and hospitalist are similar specialties.4
In the complaint, plaintiff also alleged other deviations from the standard of care by the hospitalists: (1) they failed to assess, obtain, and document accurate information in the medical records regarding plaintiff‘s medical record and medication history, (2) they discharged plaintiff without appropriately reviewing her medical chart, and (3) they failed to communicate with one another. These allegations all involve the overall care and management of a patient.
Thus, for purposes of our decision, the procedure that is the subject of the complaint includes the selection, prescription, and management of medication in the overall care of a patient. This includes, of course, a physician‘s responsibility to recognize drug warnings and interactions.
It is clear from Dr. Genecin‘s testimony that his practice as an internist includes the procedures alleged here. He testified that he has experience reading and understanding the labeling of drugs, selecting and prescribing drugs, and recognizing potential reactions between drugs. He has also prescribed Levaquin to patients in the past. When working at the Yale Health Center, he does “all of the direct patient-care activities involved in internal medicine practice.” This includes making referrals, reading results, and writing prescriptions. Dr. Genecin also works as an attending physician in a hospital two months out of the year, where his primary duty is patient care. This includes admitting patients, assessing patient history and clinical findings, reading test results, assessing patient problems, recommending treatment appropriate to patient needs, and planning for the discharge and appropriate transition of patients. Dr. Genecin also testified that as an internist in the hospital his “role is identical [to that of the hospitalists] with respect to the care provided to the patients.” Again, the record contains no evidence to the contrary. We conclude
Next, we review the record to determine whether Dr. Genecin has prior experience treating patients similar to Mrs. Pierce. When asked about this in his deposition, he responded with the following:
I see patients of Mrs. Pierce‘s demographic, elderly female patients in their 70s, many dozen per year in the hospital setting, admitted through the hospital with serious infections of one sort or another including, frequently, with infection arising in the urinary tract including the kidney.
. . .
Later in the same deposition, he explained Mrs. Pierce‘s condition: “[S]he was an elderly patient with sepsis, urosepsis, needing I.V. antibiotics and inpatient care.” Dr. Genecin was then asked if he had seen patients like her in the emergency room when he was acting as an attending physician and he responded, “yes, all the time.” This evidence showed without equivocation that Dr. Genecin had prior experience with patients similar to Mrs. Pierce.
Third and finally, in order to qualify to testify against the hospitalists, Dr. Genecin must have spent the majority of his professional time the year prior to Mrs. Pierce‘s hospitalization in active clinical practice as an internist or hospitalist or instructing students in the hospitalist specialty. Clinical practice is the active practice of seeing patients in a clinical setting. See FormyDuval v. Bunn, 138 N.C. App. 381, 391, 530 S.E.2d 96, 103 (2000) (“Clinical is defined as ‘based on or
Dr. Genecin testified without objection that in the year prior to Mrs. Pierce‘s hospitalization he spent 55%–60% of his overall professional time in clinical practice as an internist, including two months of the year in which he practiced internal medicine in a hospital full time. As explained above, there is evidence in the record that Dr. Genecin‘s clinical practice included the performance of the procedure that is the subject of the complaint and that he had experience treating patients similar to plaintiff. Thus, we conclude that the evidence shows without contradiction that Dr. Genecin spent the majority of his professional time the year prior to Mrs. Pierce‘s hospitalization in the active clinical practice of a qualifying specialty similar to the hospitalists.
The record contains undisputed evidence that Dr. Genecin meets each of the applicable requirements of Rule 702(b). Therefore, we conclude that Dr. Genecin may properly offer expert testimony on the standard of care against the hospitalists. We conclude that the trial court erred as a matter of law and affirm the decision of the Court of Appeals on this issue.
III. Proximate Cause
We review de novo a trial court‘s order granting summary judgment. Sykes v. Health Network Solutions, Inc., 372 N.C. 326, 332, 828 S.E.2d 467, 471 (2019). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
“Proximate cause is ordinarily a jury question.” Turner v. Duke Univ., 325 N.C. 152, 162, 381 S.E.2d 706, 712 (1989) (citing Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740 (1944)). In a case like this one where the allegations in the complaint and the evidence in the record indicate that there may be multiple proximate causes of the plaintiff‘s injury, a genuine issue of material fact remains, and summary judgment is not proper. See King v. Allred, 309 N.C. 113, 118, 305 S.E.2d 554, 558 (1983) (holding that where the facts did not preclude a finding by the jury that defendant‘s negligence “was a proximate cause or the proximate cause” of the injury, the court could not conclude as a matter of law that the negligence of the defendant was the sole proximate cause of plaintiff‘s injury and summary judgment was not proper).
During his deposition, Dr. Genecin stated repeatedly that the prescription of Levaquin caused plaintiff‘s injury. He testified that:
Levaquin was the cause of the tendon rupture that Mrs. Pierce had within the classic time frame, less than 30 days of therapy; in the classic location, the Achilles tendon; under the circumstances that are described in the black box warning, an elderly woman treated with Levaquin while on prednisone.
He went on to reiterate:
Q: . . . In addition to your opinions on standard of care, . . . do you have an opinion, Doctor, to a reasonable degree of medical certainty . . . as to whether or not Ms. Pierce suffered any injury that was proximately caused by being prescribed Levaquin when she‘s over the age of 60 and concomitantly taking a corticosteroid?
. . .
A: I do have an opinion.
Q: And that is?
. . .
A: That she suffered a tendon rupture as a consequence of unsafe use of Levaquin because of her age and corticosteroid use.
In the light most favorable to the plaintiff, a jury could reasonably find that “unsafe use of Levaquin” refers to the unsafe prescription of Levaquin by any of the doctors treating Mrs. Pierce, including the hospitalists.
Defendant asks us to find that the following exchange during cross-examination negates these affirmative statements of causation:
Q: . . . Would you agree with me that all you can say, with respect to any connection between the Levaquin and the resulting injury to Ms. Pierce, is that if the Levaquin had been stopped by [any of the hospitalists] that all that would have done would have been to reduce the risk or, say it another way, improve her chances of avoiding an Achilles tendon rupture?
A: That‘s true. . . . the shorter the duration, the less the risk. . . . It‘s best not to start it if you can avoid it in a situation like this. But the shorter course is safer than the long course.
Here, Dr. Genecin‘s testimony during direct examination is not negated by, and is not even necessarily inconsistent with, the quoted excerpt from the cross-examination. Taken in the light most favorable to plaintiff, a jury could find that the prescription of Levaquin was a cause of Mrs. Pierce‘s injuries and that the hospitalists’ continued prescription of Levaquin was or was not a contributing cause. That is for the jury to decide.5
IV. Conclusion
We conclude that Dr. Genecin was qualified to testify to the standard of care and that his testimony sufficiently forecasted proximate cause. As a result, we affirm the decision of the Court of Appeals to reverse the trial court‘s order disqualifying Dr. Genecin as an expert witness, and we affirm the decision of the Court of Appeals to vacate the trial court‘s order allowing summary judgment due to lack of expert testimony. We also affirm the decision of the Court of Appeals to reverse the trial court‘s order granting summary judgment due to lack of evidence of proximate cause.
AFFIRMED.
I concur with the portion of the majority‘s opinion holding that Dr. Genecin was qualified to testify as an expert witness and offer an opinion at trial. However, for the reasons stated in Justice Newby‘s dissent, I respectfully dissent from the portion of the majority‘s opinion holding that plaintiff presented sufficient evidence on the issue of proximate cause through Dr. Genecin‘s testimony to overcome defendants’ motion for summary judgment. Accordingly, I would hold that the Court of Appeals erred in reversing the trial court‘s entry of summary judgment in favor of defendants.
To succeed in this medical malpractice case, plaintiff must show that defendants violated the applicable standard of care by continuing the administration of Levaquin in a hospital setting to a patient who is suffering from a life-threatening infection. Further, plaintiff must demonstrate that a violation of the standard of care proximately caused Pierce‘s injury. Plaintiff has only one expert witness to establish the standard of care, breach of that standard by defendants, and whether the breach proximately caused the injury: Doctor Genecin. Dr. Genecin testified via a trial deposition. In properly applying the statutory and case law, the trial court determined Dr. Genecin did not meet the statutory requirements to render an expert opinion critical of defendants. In addition, after carefully evaluating Dr. Genecin‘s testimony, the only evidence of proximate causation, the trial court found the evidence inadequate to establish proximate causation. The trial court was correct. Dr. Genecin, an internal medicine physician, does not qualify to testify about the standard of care of hospitalists. Similarly, Dr. Genecin‘s testimony does not establish that the actions of the hospitalists caused plaintiff‘s injuries.
In its decision reversing the trial court, the majority undermines the General Assembly‘s carefully crafted statutory scheme designed to ensure that only colorable medical malpractice claims are presented to juries. The majority asks the wrong questions and therefore gets the wrong answers. First, considering whether Dr.
Seventy-six-year-old Dolores Pierce arrived at WakeMed Cary Hospital on 30 October 2012, with severe confusion, a fever, and weakness. Upon initial examination, the emergency room physician1 thought that Pierce had a serious infection that was inducing sepsis, and prescribed her Levaquin, a common antibiotic,
Plaintiff sued the hospital and the hospitalists for negligence. Plaintiff identified Dr. Genecin as an expert witness. Dr. Genecin specializes in internal medicine, but, by his own admission, is not a hospitalist. For only two months of the year, less than seventeen percent of his professional time, Dr. Genecin treats hospitalized patients as an attending physician. Most of his professional time he oversees outpatient care at a clinic. Dr. Genecin testified that working in such an
Dr. Genecin also offered plaintiff‘s only evidence on the issue of whether the hospitalists’ administering of Levaquin proximately caused Pierce‘s tendon rupture. He testified that many different factors can increase the risk of a tendon rupture, including a patient‘s age, a patient‘s taking of corticosteroids, a patient‘s history of having a kidney transplant, and a patient‘s taking of Levaquin. Focusing on the Levaquin risk factor, Dr. Genecin‘s testimony indicated that, for someone who possesses all the risk factors Pierce had, the chance of suffering a tendon injury from the Levaquin is only around three percent. Dr. Genecin nevertheless named Levaquin as the cause of Pierce‘s injury. But, on cross examination, he admitted that other factors likely contributed to the rupture, and that all he could say was that her chances of avoiding injury would have been better had the hospitalists not continued her Levaquin treatment as they did. He also admitted that he himself prescribed Levaquin to his patients and agreed that “the Levaquin effectively treated [Pierce‘s] infection and she survived that potentially life-threatening disease.” Dr. Genecin‘s deposition testimony was the only evidence presented by plaintiff on the issues of defendants’ standard of care and whether defendants’ conduct proximately caused Pierce‘s tendon rupture.
An appellate court should reverse a decision of the trial court that a witness does not qualify to testify as an expert under Rule 702 only if the trial court abused its discretion. State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016). A trial court abuses its discretion if “its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.” State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986). In recognition of the fact-intensive nature of the inquiry, trial courts are granted “wide latitude” in determining if an expert is qualified to testify under Rule 702. Moore v. Proper, 366 N.C. 25, 30, 726 S.E.2d 812, 817 (2012) (quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)). As this Court said in McGrady, “[t]he standard of review [of a trial court‘s decision under Rule 702] remains the same . . . even when the exclusion of expert testimony results in summary judgment and thereby becomes ‘outcome determinative.’ ” 368 N.C. at 893, 787 S.E.2d at 11 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142–43, 118 S. Ct. 512, 517 (1997)). However, a trial court‘s decision to grant summary judgment is reviewed de novo. Sykes v. Health Network Sols., Inc. 372 N.C. 326, 332, 828 S.E.2d 467, 471. (2019).
Here, while citing the correct deferential standard of review of the trial court‘s determination of the expert‘s qualifications, the majority conducts a de novo review, stating that questions about the meaning of statutes like Rule 702 are questions of
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Neither the trial court, nor the Court of Appeals, nor the majority of this Court assert that Dr. Genecin is of the same specialty as the hospitalists.3 The majority instead holds that Dr. Genecin‘s practice is of a similar specialty to that of the hospitalists. Though all these doctors are trained in and practice internal medicine, the nature of a hospital practice and that of an outpatient clinic are vastly different. Yet, as the majority notes, it is not enough for the witness to work in a similar specialty. His specialty must also include the procedure at issue in the lawsuit, and he must have spent the majority of his professional time working in that similar
Dr. Genecin‘s specialty as an internist at an outpatient clinic does not include the procedure at issue here. The majority states that the medical care at issue in this case is “the selection, prescription, and management of medication in the overall care of a patient.” But that characterization is too broad.4 The majority asks a general question about whether both Dr. Genecin and the hospitalists prescribe medications, when it should ask a more specific question tailored to the medical care actually at issue in this case. The procedure at issue is the hospitalists’ overseeing of the continued administration of Levaquin to Pierce after an emergency room physician had already started her on the medication and after it appeared to be helping her recover from a potentially life-threatening infection. Defendants thus were called to provide patient care for Pierce in the midst of an ongoing medical emergency.
Dr. Genecin‘s clinical work does not, however, involve such emergency decisions and the precise cost-benefit analyses which they entail. Indeed, Dr. Genecin agreed that the administering of Levaquin appears to have helped Ms. Pierce recover from a potentially life-threatening infection. Patients at Dr. Genecin‘s clinic who appear to be in serious condition are referred from the clinic to the hospital for the hospital to administer emergency care. Dr. Genecin may be an expert in internal
Dr. Genecin does have limited experience treating similar patients in a hospital setting, as he spends some time working at Yale New Haven Hospital as a hospital attending physician. But he does not spend the majority of his professional time in such a setting as required by the statute. Instead, by his own testimony, he spends only about two months out of the year at the hospital, roughly seventeen percent of his professional time.
The trial court did not abuse its discretion when it disqualified Dr. Genecin from testifying as an expert witness regarding whether the hospitalists’ continued administration of Levaquin fell below the applicable standard of medical care. The
The trial court‘s grant of summary judgment to defendants should be affirmed as well on the ground that plaintiff did not put forth sufficient evidence that defendants’ actions were the proximate cause of Pierce‘s injury. In a medical malpractice case, “the plaintiff must establish proof of a causal connection between the negligence of the physician and the injury complained of by the testimony of medical experts.” McGill v. French, 333 N.C. 209, 217, 424 S.E.2d 108, 113 (1993). Thus, to survive summary judgment, plaintiffs had to present evidence that it was probable, in other words, more likely than not, that defendants’ purported negligence caused the injury. This Court has long held that it is not sufficient for a plaintiff to simply show that a different course of treatment by the defendant physician would have increased the plaintiff‘s chances of avoiding the injury. See Gower v. Davidian, 212 N.C. 172, 175–76, 193 S.E. 28, 30–31 (1937). So, unless the evidence, viewed in plaintiff‘s favor, shows that the hospitalists’ conduct of continuing Pierce on Levaquin at the dosage and length of time they did probably caused her tendon rupture, the trial court‘s grant of summary judgment in defendants’ favor should be affirmed.
Dr. Genecin never offered any testimony to the specific and central point that defendants’ failure to discontinue Levaquin caused Pierce‘s Achilles tendon rupture. Rather, he testified that ”Levaquin was the cause of the tendon rupture.” (emphasis added). The Levaquin was not, however, prescribed only by the hospitalists. An emergency department physician originally began intravenous administration of the medication, and the hospitalists continued Pierce on that medication after diagnosing her with a dangerous infection and noting that Levaquin appeared to be effectively treating her infection. It is the conduct of the hospitalists that is at issue. But the relevant testimony from Dr. Genecin on proximate cause does not target that conduct.
Moreover, Dr. Genecin later clarified and qualified his statement regarding Levaquin as the cause of injury by agreeing that “all [he could] say” was that the hospitalists discontinuing the Levaquin would have “reduce[d] the risk or . . . improve[d] [Pierce‘s] chances of avoiding an Achilles tendon rupture.” This assertion is not enough to show proximate causation. Again, this Court‘s decision in Gower illustrates that a plaintiff cannot survive dismissal on the issue of causation simply by showing that another course of treatment would have reduced the risk of the injury. By qualifying his statements as he did, Dr. Genecin demonstrated that he was
Rule 702 helps ensure that reliable evidence is presented to support a plaintiff‘s medical malpractice claim. A jury may be substantially swayed by anyone with the title of “doctor,” even if that doctor lacks the specialization and experience
I respectfully dissent.
Justice MORGAN joins in this dissenting opinion.