EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, December 28, 2008

Extreme Measures: Court Of Appeals Of North Carolina Fails To Explain New Evidentiary Rule In Affirming Medical Malpractice Ruling

The recent opinion of the Court of Appeals of North Carolina in Cornett v. Watauga Surgical Group, P.A., 2008 WL 5214375 (N.C.App. 2008), reveals that North Carolina has a strange rule regarding expert testimony regarding standard of care in medical malpractice cases.  And unfortunately, neither that opinion nor any prior opinion gives me any indication of the meaning of a key phrase in that rule.

In Cornett, Dianne Morin was admitted to the emergency room of Watauga Medical Center complaining of abdominal pain, nausea and vomiting. After Dr. Frank Y. Chase evaluated her, he performed a surgical procedure. Following surgery, Morin remained in the hospital for nine days and experienced an increase in abdominal symptoms. Dr. Chase thereafter performed exploratory surgery on Morin and found further complications in her bowels, prompting him to place two drains in her abdomen.  Subsequently, Morin was transferred to Wake Forest University Baptist Medical Center, where she soon passed away.

Harold Cornett, administrator of Morin's estate, later sued Watauga Surgical Group, P.A.'s and Frank Y. Chase for medical malpractice.  The defendants then moved to exclude the proposed testimony of Dr. Martin Litwin, M.D. ("Dr. Litwin"), the plaintiff's proposed expert witness, and moved for summary judgment.  The trial judge granted the defendants' evidentiary motion because it found that Dr. Litwin was not qualified to render expert testimony on the appropriate standard of care based upon the strict requirements of North Carolina Rules of Evidence 702(b)-(c) (I won't print all of those requirements in this post, but you can find them here).

The trial judge also rejected the plaintiff's argument that Dr. Litwin should be able to testify pursuant to North Carolina Rule of Evidence 702(e), which states that:

     "Upon motion by either party, a resident judge of the superior court in the county or judicial district in which the action is pending may allow expert testimony on the appropriate standard of health care by a witness who does not meet the requirements of subsection (b) or (c) of this Rule, but who is otherwise qualified as an expert witness, upon a showing by the movant of extraordinary circumstances and a determination by the court that the motion should be allowed to serve the ends of justice."

One reason for this rejection was that the trial judge noted that he was not a resident judge, meaning he had no power under North Carolina Rule of Evidence 702(e).  Alternatively, the trial judge "also stated in his order that if he had reached the motion, he would have denied it because plaintiff did not show either extraordinary circumstances or that justice required allowing a non-qualified expert witness to testify."

Without this testimony, the plaintiff could not prove his case, and thus the trial judge granted the defendants' motion for summary judgment.  The plaintiff thus appealed, claiming that the trial judge's ruling under North Carolina Rule of Evidence 702(e) was erroneous.  And the North Carolina Court of Appeals didn't resolve the issue of whether only resident judges have power under North Carolina Rule of Evidence 702(e).

Instead the Court of Appeals assumed that the trial judge had power under this Rule, but it still found that any error that the trial judge made in failing to fully consider the plaintiff's argument was harmless.  According to the court, 

     "Plaintiff contends the error is not harmless because whether Dr. Litwin qualified as an expert 'literally came down to counting minutes spent between his different activities in a given month,' 'disbelieving Dr. Litwin's sworn testimony to the contrary,' and these are 'extraordinary circumstances' contemplated under the rule. We disagree. Plaintiff did not demonstrate extraordinary circumstances to support his Rule 702(e) motion at the hearing before the trial court. See Knox v. Univ. Health Sys. of East. Carolina, 187 N.C.App. 279, ----, 652 S.E.2d 722, 725 (filed Nov. 20, 2007)."        

And here's the problem that I have with the court's ruling.  It gives me no indication of what is meant by the phrase "extraordinary circumstances."  All I know is that they are not the circumstances presented by the litigants in Cornett and Knox.  And those are the only two opinions to apply the relatively new North Carolina Rule of Evidence 702(e) (two other opinions have cited the Rule in dicta).

In Cornett, the consequence of Dr. Litwin not being allowed to testify was summary judgment being entered against the plaintiff.  Was that not an extraordinary circumstance?  Maybe and maybe not, but I would have no way of knowing without some explanation by North Carolina courts.



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