JANET E. MOORE, Plaintiff v. DANIEL H. PROPER, SHAUN O’HEARN, DR. SHAUN O’HEARN, DDS, P.A., and AFFORDABLE CARE, INC., Defendants
No. COA10-1475
IN THE COURT OF APPEALS
6 September 2011
[215 N.C. App. 202 (2011)]
HUNTER, JR., Robert N., Judge.
Appeal by Plaintiff from Order entered 20 August 2010 by Judge James L. Baker, in Madison County Superior Court. Heard in the Court of Appeals 13 April 2011.
The trial court erred in a medical malpractice case by granting summary judgment in favor of defendants for plaintiff’s failure to comply with
2. Medical Malpractice—expert witness—no extraordinary circumstances—insufficient grounds for dismissal—summary judgment improper
The trial court erred in a medical malpractice case by granting summary judgment in favor of defendants. The trial court’s ruling that no extraordinary circumstances existed to qualify plaintiff’s expert witness to serve as an expert witness under
Long, Parker, Warren, Anderson & Payne, P.A., by Steven R. Warren, for Plaintiff-appellant.
Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham, for Defendant-appellee Daniel H. Proper.
Shumaker, Loop & Kendrick, LLP, by Scott A. Hefner and Scott M. Stevenson, for Defendants-appellees Shaun O’Hearn, Dr. Shaun O’Hearn, DDS, P.A., and Affordable Care, Inc.
HUNTER, JR., Robert N., Judge.
I. Factual and Procedural History
As required by
Pursuant to an order of the trial court dated 10 August 2009 (which does not appear in the record), Plaintiff provided an “Expert Witness Designation” which identified Dr. Joseph C. Dunn as Plaintiff’s expert witness. The designation describes Dr. Dunn as a 1966 graduate of the University of North Carolina at Chapel Hill and a 1970 graduate of the University of Louisville School of Dentistry. Dr. Dunn also practiced in the United States Dental Corp. and practiced in Asheville for almost 25 years. Dr. Dunn explained the alleged deviation from the applicablе standard of care as follows:
The Plaintiff was not treated in accordance with the expected standard of care for treatment by a General Dentist in North Carolina in that she was not advised of the risks of a fractured jaw occurring from any treatment which was to be afforded by Dr. Proper, Dr. Proper did not take any steps to prevent the fracture of the jaw if extraction became difficult and he failed to provide for her proper follow up care after she experienced pain as a result of the extraction.
Defendants served 10 interrogatories pursuant to
ANSWER: I retired in July 1997 after 35 years of general dentistry practice. However, I have maintained a valid license to practice general dentistry in good standing since my retirement in July of 1997.
3. State whether you taught students in an accredited health professional school or an accredited residence or clinical research program in the area of dentistry and, if so, what percentage of your professional time was spent in teaching students dentistry during January, 2005 to January, 2006.
ANSWER: N/A
After receipt of these Answers, Defendants did not immediately seek to dismiss Plaintiff’s Complaint. Discovery continued.
On 29 April 2010, Dr. Dunn was deposed by Defendants. Among the answers given in his deposition were the following responses:
Q. I want to talk a little bit about the time period from January of 2005 until January of 2006. Were you actually practicing dentistry then?
A. I was doing the same fill-in work.
Q. Do you recall how many days you filled in that year?
A. It was a lot more than it is now, but, I—no, I couldn’t really give you a number. I’ll throw out one, 30 days maybe. I really don’t know . . . .
Q. I know you don’t remember a whole lot about that time, but can you—we’re going through the same exercise of breaking it down percentage wise of your practice from January of 2005 until January of 2006. What percentage of your time was in the active clinical practice of dentistry?
A. Well, you know, that is really an unfair question. Whenever you are looking at a patient, you are practicing clinicаl dentistry.
Q. Right.
Q. All right. Over the entire year, of all the time you spent in a year of your professional time—because I understand at that point in time you were also running for mayor?
A. Uh-huh [yes].
Q. You were retired spending time with your grandchildren?
A. Uh-huh [yes].
Q. What percentage of your time are you actually seeing patients?
A. Okay. Gosh, that’s—
[Plaintiff’s Lawyer]: Is that a 24 hour day time? Is that an eight hour day time?
Q. Let’s say an eight hour work day. Of all the eight hour work days in any given year—
A. Three hundred sixty-five days a year.
Q. You are not working on the weekends, are you?
A. Okay.
Q. You’re working—dentist[s] work four days a week?
A. Yeah, most of them.
Q. All right. Of those four days a week, we will assume that there are eight professional hours in a day. What percentage over the entire year are you working in the active clinical practice of dentistry?
A. I would say it’s got tо be less than five percent, I guess.
Q. Less than five percent?
A. Uh-huh (yes). That is just a thrown out number.
Q. But it’s not 95 percent?
A. No.
Q. You wouldn’t say that? It’s not 50 percent?
A. No, it’s just as needed you know. . . .
A. Yes.
Q. Tell me a little bit about running for mayor, how much time did that take up?
A. It took up a lot.
Q. I’m sure.
A. You know, I’m on city council too, that was a lot of work.
Q. So how many hours a week would that be?
A. That was—I put in at least 20 to 25 hours a week.
Based upon the deposition responses, Defendants made a Motion for Summary Judgment, contending Dr. Dunn’s expert witness testimony could not support a malpractice claim under
Following the hearing on these motions, the trial court made two rulings. In the first ruling, the trial court granted summary judgment in favor of Defendants and dismissed Plaintiff’s Complaint, stating Plaintiff did not comply with
II. Jurisdiction
This Court has jurisdiction of this appeal pursuant to
III. Analysis
The portions of
(j) Medical malpractice.—Any complaint alleging medical malpractice by a health care provider as defined in
G.S. 90-21.11 in failing to comply with the applicable standard of care underG.S. 90-21.12 shall be dismissed unless:(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify аs an expert witness under
Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;(2) The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under
Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
(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 inG.S. 90 21.12 unless the pеrson is a licensed health care provider in this State or another state and meets the following criteria:
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 subjeсt 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.
As a textual matter,
All three questions involve matters of pleading and therefore require an examination of Plaintiff’s Complaint akin to a Rule 12(b)(6) motion to dismiss. First, does the Complaint specifically assert “that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under
The question is whether Plaintiff could have “reasonably expected” Dr. Dunn to have qualified as an expert witness under
Because the parties moved for summary judgment, we review the trial court’s first ruling under a de novo standard. Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 247, 677 S.E.2d 465, 472 (2009) (“We review a trial cоurt’s ruling on summary judgment de novo.”). “Whether the pleader could reasonably expect the witness to qualify as an expert under Rule 702 presents a question of law and is therefore reviewable de novo by this Court.” Trapp v. Maccioli, 129 N.C. App. 237, 241 n.2, 497 S.E.2d 708, 711 n.2 (1998).
This Court inquires as to whether Plaintiff reasonably expected Dr. Dunn to qualify as an expert witness pursuant to
There is a difference between whether a plaintiff could “reasonably expect” an expert to qualify as such under
In his Affidavit filed after Defendants’ Motion for Summary Judgment, Dr. Dunn claimed “during the time [he] was engaged in the active practice of dentistry, [he] spent one hundred percent of [his] professional time actively engaged in the clinical practice.” He stated that he has practiced as a dentist in the area for over forty years and still engages in the active practice of dentistry, though not full-time. Dr. Dunn emphasized that his serving on the city council was a personal activity, and that none of his personal activities were part of his “profession.” He stated that when he gave the five percent figure, he was referring to all of his time, “covering all the activities [he] was engaged in as a human being,” but that when he was engaged in his profession, one hundred percent of his time was in the active clinical practice of dentistry.
Plaintiff argues that because Dr. Dunn was engaged in active clinical practice one hundred percent of his professional time, he met the standard in
Parties cite two cases in support of their positions: Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002) and Cornett v. Watauga Surgical Grp., 194 N.C. App. 490, 669 S.E.2d 805 (2008).
In Coffman, the expert was retired, but worked “professionally” the requisite period of time and this Court found no error in his qualification as an expert. Coffman, 153 N.C. App. at 624, 571 S.E.2d at 258-59 (expert witness stated instruction in his field “didn’t take up a great deal of time,” but that it was “all [he] did professionally during that period of time”). In Cornett, the expert was employed full time, according to the opinion, and worked a 60 hour workweek, occasionally performing minor surgery, instructing residents, attending rounds, and performing administrative duties at Tulane Medical School. Cornett, 194 N.C. App. at 494-95, 669 S.E.2d at 808. The administrative functions at Tulane Medical School composed a majority of his “professional time,” and the physician was found to not meet the requirements of
The language of the statute does not require a “standard” workweek or give the courts any measure for the length of time a professional must work in order to compute the majority of an expert’s “professional time.” The statutory language relies on a case by case analysis of the term. Thus, a professional workweek is a factual question which the trial court must determine in making its decision.
In Cornett, the trial court found the “professional work week” to be 60 hours for the physician in question. 194 N.C. App. at 494-95, 669 S.E.2d at 808. After this fact was found, our Court relied on this finding as a predicate to apply
We note the standard for dismissal under
[2] As to the second ruling regarding the likelihood of Dr. Dunn to serve as an expert in this case due to extraordinary circumstances, we conclude this portion of the order is akin to a motion in limine and seeks a pretrial determination of the admissibility of evidence to be introduced at trial. Because any such determination would be subject to a final ruling by the trial judge, it would be insufficient grounds for dismissal at that point in the litigation.
IV. Conclusion
Based on the foregoing reasons, we reverse.
Reversed and remanded.
Judge STEELMAN concurs.
Judge STEPHENS dissents.
STEPHENS, Judge, dissenting.
I respectfully dissent from the majority opinion to address the majority’s misinterpretation and misapplication of
(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under
Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
In this case, it is clear from Moore’s complaint that she sought to satisfy
Initially, I again note that nowhere in Moore’s complaint does she “specifically assert” that she will seek to have the person whо reviewed the medical care “qualified as an expert witness by motion under
Because Moore has failed to satisfy the pleading requirements of
In considering whether a plaintiff’s
Id. at 255-56, 677 S.E.2d at 477 (internal quotation marks, citations, and ellipsis omitted).
The dispositive question in this appeal is whether Moore’s
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 . . . or
In this case, because Dr. Dunn is a licensed dentist, because Dr. Dunn testified that he had spent no time instructing students during the year immediately preceding the date of Moore’s alleged injury, and because Dr. Dunn is admittedly in the same health profession as Dr. O’Hearn and Dr. Proper, the more specific issue is whether Dr. Dunn devoted a majority of his professional time to the “active clinical practice” of general dentistry during the year immediately preceding the date of Moore’s alleged injury. I conclude that, based on his description of his professional time, Dr. Dunn did not meet this
In his deposition, Dr. Dunn testified that, assuming a year of 32-hour workweeks (i.e., four eight-hour days), he spent less than five percent of that time, or an average of less than 1.6 hours per week, in the clinical practice of dentistry, filling in for other dentist friends who needed the help. Dr. Dunn clarified that testimony in a subsequent affidavit, stating that the five-percent figure referred to “five percent of my entire time”—which time included running for and holding public office, spending time with his grandchildren, and golfing—and not five percent of his “professional time.” Dr. Dunn then stated that 100 percent of the time that he was engaged in dentistry—his learned profession and, thus, his “professional time”—was spent in the clinical practice of dentistry. The upshot of Dr. Dunn’s testimony is that he was engaged in the clinical practice of dentistry 100 percent of his “professional time,” which was five percent of his “entire time” of a year’s worth of 32-hour workweeks.
Assuming, without deciding, that Dr. Dunn’s interpretation of “professional time” is correct—that “professional time” is limited to time spent on activities related to one’s health profession and does not include other quasi-professional activities like holding public office—I nonetheless conclude that the majority of Dr. Dunn’s pro-
“When the language of a statute is clear and unambiguous, it must be given effect and its clear meaning may not be evaded by an administrative body or a court under the guise of construction.” Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002). The clear and unambiguous language of
“Words not defined in [a] statute are given their plain meaning so long as it is reasonable to do so.” Formyduval v. Bunn, 138 N.C. App. 381, 386, 530 S.E.2d 96, 100 (2000) (quoting Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671 (1999)). “Dictionaries may be used to determine the plain meaning of words.” Id. at 387, 530 S.E.2d at 100-01 (citing Hunter v. Kennedy, 128 N.C. App. 84, 86, 493 S.E.2d 327, 328 (1997)).
Of the several dictionary definitions of “active,” the most reasonable in this context is “disposed to action,” as in “energetic, diligent.” Webster’s Third New International Dictionary, (Unabridged 2002). While other of the definitions—such as “characterized by action rather than contemplation or speculation” or “engaged in an action or activity,” id.—present themselves as reasonable alternatives, these alternatives would render the statute’s use of either the word “active” or “clinical” superfluous in that this Court has previously defined “clinical” in this context to mean nearly the same thing, i.e., “based on or pertaining to actual experience in the observation and treatment of patients.” Formyduval, 138 N.C. App. at 391, 530 S.E.2d at 103 (quoting 2 J.E. Schmidt, Attorney’s Dictionary of Medicine C-310 (1999)). Because interpretation yielding superfluity is disfavored, State v. Coffey, 336 N.C. 412, 417, 444 S.E.2d 431, 434 (1994) (holding that “a statute should not be interpreted in a manner which would render any of its words superfluous”), it is more reasonable to interpret the requirement of “active” clinical practice as requiring “energetic and diligent” clinical practice, as opposed to requiring mere non-speculative, non-inactive clinical practice.
The effect of this interpretation of an active clinical practice necessarily is the creation of a baseline level of proposed experts’
While that minimum level of activity may vary among cases and needs no precise determination in this case, in my view, a clinical practice of 1.6 hours per week is not sufficiently active to qualify a proposed expert under
Prevent Frivolous Medical Malpractice Actions by Requiring that Expert Witnesses in Medical Malpractice Cases Have Appropriate Qualifications to Testify on the Standard of Care at Issue and to Require Expert Witness Review as a Condition of Filing a Medical Malpractice Action.
Act of June 20, 1995, ch. 309, 1995 N.C. Sess. Laws 611. By requiring “appropriate qualifications” of experts as a means to prevent frivolous medical malpractice actions, the legislature indicated a clear desire to require the proposed experts who review cases to have adequate familiarity with the relevant standard of care. Id.; see also Formyduval, 138 N.C. App. at 390, 530 S.E.2d at 102 (noting that the purpose of
Nevertheless, the question in this case is not whether Dr. Dunn should qualify under
The facts and circumstances known or which should have been known to Moore are as follows: In her expert witness designation, Moore alleged that Dr. Dunn was “licensed to practice in North Carolina, having practiced in Asheville from 1973 until [his] retirement in 1997”; in response to interrogatories, Dr. Dunn stated that he “maintained a valid license to practice general dentistry in good standing since [his] retirement in July of 1997”; and in his deposition, Dr. Dunn testified that his clinical practice amounted tо less than five percent of a 32-hour workweek, or an average of 1.6 hours per week.
In my view, these facts and circumstances show that Moore’s expectation that Dr. Dunn would qualify as an expert witness was not reasonable. First, the fact that Dr. Dunn retired nine years prior to the alleged malpractice—and had been retired for almost 12 years by the time Moore filed her complaint—should have indicated to Moore that Dr. Dunn likely was not maintaining an active clinical practice. This fact would have led a reasonable person to inquire as to the extent of Dr. Dunn’s clinical practice in the year prior to the alleged malpractice. Second, and more importantly, a reasonable person who conducted such an inquiry would not have concluded that a dentist who spends an average of 1.6 hours per week in the clinical practice of dentistry would qualify as an expert under a statute that requires a proposed expert to have devoted the majority of his professional time to the active clinical practice of dentistry.
As discussed supra, the
Despite the failure of Moore’s complaint to satisfy