Webb v. Wake Forest Univ. Baptist Med. Ctr

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NO. COA13-221 NORTH CAROLINA COURT OF APPEALS Filed: 18 February 2014 LESLIE WEBB, Administratrix of the Estate of ROBERT B. WEBB, III, Plaintiff-Appellant, v. Forsyth County No. 10-CVS-1990 WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, UNIVERSITY DENTAL ASSOCIATES, NORTH CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY, WAKE FOREST UNIVERSITY PHYSICIANS, SHILPA S. BUSS, DDS, and REENA PATEL, DDS, Defendants-Appellees. Appeal by Plaintiff from order entered 27 August 2012 by Judge John O. Craig, III in Superior Court, Forsyth County. Heard in the Court of Appeals 10 September 2013. Kennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for PlaintiffAppellant. Coffey Bomar LLP, by Tamura D. Coffey and J. Rebekah Biggerstaff, for Defendants-Appellees Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, and Wake Forest University Physicians. Carruthers & Roth, P.A., by Kenneth L. Jones and Michal E. Yarborough, for Defendant-Appellee University Dental Associates. McGEE, Judge. -2Leslie Webb, Administratrix of the Estate of Robert B. Webb, III, ( Plaintiff ), filed a complaint against Wake Forest University Baptist Medical Center, University Dental Associates, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS ( Defendants ) on 13 July 2010. Plaintiff alleged that Robert B. Webb, III, ( the Decedent ) was under general anesthesia for oral surgery, teeth cleaning, and the extraction of four teeth performed on 13 March 2008. home the same day following the The Decedent was sent procedure. He became unresponsive at home on 14 March 2008 and was pronounced dead on 15 March 2008. Plaintiff alleged that Defendants were negligent in their treatment of the Decedent and that this negligence was the proximate cause of his death. Defendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS, filed an answer on 30 September 2010. University Dental Associates filed a separate Defendant answer on 5 October 2010. Defendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena -3Patel, DDS, filed a motion for summary judgment on 26 July 2012. Defendant University Dental Associates filed a separate motion for summary judgment on 31 July 2012. The trial court granted the motions for summary judgment as to any and all allegations, claims, involving the dental care provided to and causes of action [the D]ecedent. The trial court also granted the motion for summary judgment as to any and all allegations, claims, and causes of action that relate to the dental care provided to [the D]ecedent involving the alleged negligence of [D]efendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, and Wake Forest University Physicians. The trial court denied Defendants summary judgment motion relating to anesthesia care. Plaintiff appeals. I. Summary Judgment Rule Plaintiff argues the trial court erred in granting Defendants motions for summary judgment relating to dental care of Decedent. judgment A trial court should grant a motion for summary only interrogatories, if and the pleadings, admissions on depositions, file, answers together with to the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment -4as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013); see also Lord v. Beerman, 191 N.C. App. 290, 293, 664 S.E.2d 331, 334 (2008). Our Supreme Court has emphasized that summary judgment is a drastic measure, and it should be used with caution. especially true in a negligence case[.] Light Co., 296 N.C. 400, 402, (internal citation omitted). 250 This is Williams v. Power & S.E.2d 255, 257 (1979) The purpose of N.C.G.S. § 1A-1, Rule 56 is to eliminate formal trials where only questions of law are involved. Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). An issue is genuine if it can be proven by substantial evidence and a fact is material if it would constitute or irrevocably establish any material element of a claim or a defense. Id. The moving party carries the burden of establishing the lack of any triable issue. S.E.2d at 334. Lord, 191 N.C. App. at 293, 664 The movant may meet his or her burden by proving that an essential element of the opposing party s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of omitted). the his claim[.] Id. (internal quotation marks Generally this means that on undisputed aspects of opposing evidential forecast, where there is no genuine -5issue of fact, the moving party is entitled to judgment as a matter of law. Lowe, 305 N.C. at 369, 289 S.E.2d at 366 (internal quotation marks omitted). Once nonmoving the moving party party must has met produce a its initial forecast burden, of the evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial in order to survive summary judgment. Diggs v. Novant Health, Inc., 177 N.C. App. 290, 294, 628 S.E.2d 851, 855 (2006) (alteration in original). The opposing [nonmoving] party need not convince the court that he would prevail on a triable issue of material fact but only that the issue exists. Lowe, 305 N.C. at 370, 289 S.E.2d at 366. II. Analysis Plaintiff s are genuine complaint and issues of Defendants material fact in answers this show there matter. complaint alleged the following: XII. That the oral surgery performed on [the Decedent] lasted 8 hours and 20 minutes, approximately four times longer than the time for the procedure represented to the parents of [the Decedent]. The oral surgery consisted of teeth cleaning and the extraction of four teeth. The patient was under general anesthesia for over 8 hours. . . . XIV. That the oral surgeons and the anesthesia treatment team were aware of the The -6fact that a known risk of having a patient under general anesthesia for an extensive period of time was that the patient could develop pneumonia. XV. That in spite of the lengthy surgery and the extended period of time that the patient was under general anesthesia, upon information and belief, the anesthesia treatment team in consultation with the two oral surgeons made the decision to send [the Decedent] home on March 13, 2008 post surgery. XVI. On March 14, 2008, [the Decedent] became unresponsive at home. He was rushed by EMT to Moses Cone Hospital in Greensboro, North Carolina. At Moses Cone Hospital, [the Decedent] was diagnosed as having cerebral edema on CT, anoxic brain damage and cardiac arrest. . . . XVIII. An autopsy was performed, and the cause of death was determined to be bronchopneumonia following comprehensive dental care under general anesthesia. Defendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS, denied all of the above allegations in their answer. Defendant University Dental Associates filed a separate answer in which it also denied the above allegations. Defendants, in their briefs to this Court and at oral argument, focused on the admissibility of expert testimony under N.C. Gen. Stat. § 8C-1, Rule 702(b). The trial court also -7stated during the hearing that Plaintiff had run squarely into a brick wall with Rule 702(b). However, we note that the record contains no motion to exclude Plaintiff s expert witnesses. Defendants motions for summary Rather, at the hearing on judgment, Defendants argued Plaintiff failed to show causation, as follows: Your Honor . . . we will concede that [Plaintiff has] three expert witnesses, all who have testified about standard of care issues. That is not what we re arguing about. We are strictly arguing about whether or not they had made a causal link with these three experts to the dental care in the case. Medical malpractice encompasses actions arising from the performance of dental care. [T]he term medical malpractice action means a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider. N.C. Gen. Stat. § 90-21.11 (2009).1 To survive a motion for summary judgment in a medical malpractice 1 action, a plaintiff must forecast evidence Our General Assembly amended this statute in 2011. 2011 N.C. Sess. Laws ch. 400 § 5. The amendment applies to causes of actions arising on or after 1 October 2011. Id. at § 11. The cause of action in the present case arose on or about 13 March 2008. The amendment therefore is not applicable to the present case. -8demonstrating that the treatment administered by [the] defendant was in negligent violation of the accepted standard of medical care in the community[,] and that [the] defendant s treatment proximately caused the injury. Lord, 191 N.C. App. at 293-94, 664 S.E.2d at 334 (alterations in original) (internal quotation marks omitted). Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff s injuries, and without which the injuries would not have occurred[.] Id. at 294, 664 S.E.2d at 334. In the present case, Plaintiff forecast evidence showing that the treatment administered by Defendants was in negligent violation of the accepted standard of care in the community. Dr. Behrman, a Doctor of Dental Medicine, testified on behalf of the Decedent in a deposition that [t]here was no clearance obtained on a significantly medically compromised person by the physician of record, the physician caring for him[.] Dr. Behrman testified as follows regarding the necessity to consult with the physician of record prior to the dental procedure: This is bread and butter of training programs, the way we teach the residents, the way we ve been taught; using the medical providers, obtaining the consult and such. This is what we do and what we re trained to do, what I expect my residents to do, what I have to demonstrate during accreditation visits within a residency program. -9Plaintiff also forecast evidence, in depositions and in the complaint, of the proximate cause of death. The portion of Dr. Behrman s deposition relevant to causation is quoted below: [Plaintiff s attorney]. In your expert opinion was the violation of the standard of care that you testified about here today a proximal contributing cause to [Decedent] developing bronchopneumonia? . . . . [Dr. Behrman]. Within my knowledge oral and maxillofacial surgeon, yes. as an Plaintiff also alleged in the complaint that an autopsy was performed, and bronchopneumonia the following general anesthesia. autopsy, Plaintiff Dr. cause this death was comprehensive determined dental to care be under The doctor who performed the Decedent s Gaffney-Kraft, in of action stated that it in an is affidavit [her] filed opinion by within reasonable medical certainty that the cause of death of [the Decedent] care was including extractions bronchopneumonia exam, which following radiographs, were performed shortly before his death[.] comprehensive cleaning, under dental restoration general and anesthesia Dr. Gaffney-Kraft also indicated in her report of autopsy examination that Decedent s cause of death was bronchopneumonia. -10As stated above, the trial court should grant a motion for summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56(c); see also Lord, 191 N.C. App. at 293, 664 S.E.2d at 334. Where there are genuine, conflicting issues of material fact, the motion for summary judgment must be denied so that such disputes may be properly resolved by the jury as the trier of fact. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 468, 597 S.E.2d 674, 692 (2004). Plaintiff contends that she presented a two-tier approach on causation. the standard First, Dr. Behrman opined that the violation of of care caused the Decedent s bronchopneumonia; second, the bronchopneumonia caused the death of the Decedent. Defendants contend the testimony of Dr. Behrman fails to establish proximate cause because his testimony fails to satisfy N.C.G.S. §8C-1, Rule 702 (2009).2 2 Our General Assembly amended N.C.G.S. § 8C-1, Rule 702 in 2011. 2011 N.C. Sess. Laws ch. 283 § 1.3. The amendments apply to actions commenced on or after 1 October 2011. Id. at § 4.2. The amendments are not applicable to the present case because the action was commenced on 13 July 2010. -11III. Admissibility of Expert Testimony Despite the fact that this matter is before us on appeal from the grant of summary judgment, we address the admissibility of expert testimony because of our Supreme Court s analysis in Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009). In Howerton, our Supreme Court recognized the differences in the two issues and commented that a party will not likely fare as well by moving for summary judgment without a preliminary admissibility determination because of the inherent procedural safeguards favoring the non-moving party in motions for summary judgment. Howerton, 358 N.C. at 468, 597 S.E.2d at 692; see also Day v. Brant, ___ N.C. App. ___, ___, 721 S.E.2d 238, 247, disc. review denied, 366 N.C. 719, 726 S.E.2d 179 (2012) ( Our Supreme Court, in Howerton, cautioned against the merging of the two issues. ). The decision in Crocker was composed of three opinions from the Supreme Court. All three opinions analyze the admissibility of expert testimony, regardless of the facts that the appeal was from an order granting summary judgment and the record indicated no motion to exclude expert testimony. 143, 675 S.E.2d at 629. trial court s ruling on Crocker, 363 N.C. at Our Supreme Court concluded that the summary misapplication of Rule 702[.] judgment resulted from a Id. at 144, 675 S.E.2d at 629. -12Because our Supreme Court in Crocker analyzed the admissibility of expert testimony even in the absence of a motion to exclude expert testimony, we analyze the admissibility of expert testimony in the present case. The trial court must decide the preliminary question of the admissibility of expert testimony under the three-step approach adopted in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995). Crocker, 363 N.C. at 144, 675 S.E.2d at 629. The trial court thereunder must assess: 1) the reliability of the expert s methodology, 2) the qualifications of the proposed expert, and 3) the relevance of the expert s testimony. Id. A. Reliability of the Expert s Methodology As to the first step in the Goode analysis of the admissibility of expert testimony, Plaintiff contends that Dr. Behrman is unquestionably qualified as an expert in the field of oral testimony surgery. is not Defendants sufficiently contend reliable Plaintiff s to be expert admissible[,] citing Azar v. Presbyterian Hosp., 191 N.C. App. 367, 663 S.E.2d 450 (2008). merely upon different When speculation than sufficiently testimony and a layman s reliable to be issues of medical causation. on medical causation is conjecture, however, it opinion, considered and as such, competent based is is evidence Id. at 371, 663 S.E.2d at 453. no not on -13However, as discussed above, the opinions of Dr. Behrman and Dr. Gaffney-Kraft were not based merely upon speculation or conjecture. Neither Dr. Behrman nor Dr. Gaffney-Kraft used the words probably or possibly or otherwise indicated that their opinions were speculative or conjectural. Rather, Dr. Behrman answered the question as to his opinion on causation in the affirmative. Similarly, Dr. Gaffney-Kraft stated that it is [her] opinion within reasonable medical certainty that the cause of death of [the Decedent] was bronchopneumonia[.] The fact that Plaintiff s causation testimony is presented in two steps, (1) that the dental care caused Decedent s bronchopneumonia and (2) that the bronchopneumonia caused Decedent s death, does not affect this analysis. Defendants cite no case holding that causation evidence may not be presented in sequential steps, and our research reveals none. Defendants have not shown Plaintiff s expert testimony is not sufficiently reliable to be considered competent evidence on causation. B. Qualifications of the Proposed Expert As to the admissibility of second expert step in the testimony, Goode analysis Plaintiff of contends the that, because Dr. Behrman is an oral surgeon who performs surgical operations on patients, and the practice of medicine includes surgery, there is an overlap between statutes regulating the -14practice of medicine and the practice of dentistry. Defendants contend to Plaintiff s experts cannot be qualified render expert opinions on medical causation pertaining to areas of the body outside the oral cavity. Defendants cite Martin v. Benson, 125 N.C. App. 330, 481 S.E.2d 292 (1997), rev d on other grounds, 348 N.C. 684, 500 S.E.2d 664 (1998), in support of their contention that only a medical doctor would be qualified to opine as to causation of bronchopneumonia. In Martin, this Court held the trial court erred in allowing a neuropsychologist to opine as to a closed head injury. Supreme Id. at 334-37, 481 S.E.2d at 294-96. Court held that the plaintiffs waived However, our the right to appellate review of the testimony because the plaintiffs failed to object to the evidence at the time it was offered at trial. Martin, 348 N.C. at 685, 500 S.E.2d at 665. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or testify thereto in the form of an opinion. Rule 702(a). education, may N.C.G.S. § 8C-1, [T]he opinion testimony of an expert witness is competent if there is evidence to show that, through study or experience, or both, the witness has acquired such skill that he -15is better qualified than the jury to form an opinion on the particular subject of his testimony. Inc., 156 N.C. (licensed App. clinical 512, 518, 577 psychologist was Terry v. PPG Indus., S.E.2d 326, qualified 332 to (2003) testify regarding the cause of depression). This Court in Martin considered Rule 702 in light of this State s statutes defining the practice of psychology. Martin, 125 N.C. App. at 336, 481 S.E.2d at 295. This Court noted that N.C. Gen. Stat. § 90-270.3 (1993) required licensed psychologists to assist clients in obtaining professional help for problems that fall outside the bounds of the psychologist s competence, including the diagnosis and treatment of relevant medical problems. Id. at 337, 481 S.E.2d at 296. From this statute, this Court concluded it was evident that the practice of psychology causation. requires does Id. not include the diagnosis of medical By contrast, in the present case, no statute dentists to assist their clients in obtaining professional help for problems outside the boundaries of the dentist s competence. Martin is thus distinguishable from the present case. The essential question in determining the admissibility of opinion evidence is whether the witness, through study or experience, has acquired such skill that he was better qualified -16than the jury to form an opinion on the subject matter to which his testimony applies. Diggs, 177 N.C. App. at 297, 628 S.E.2d at 856 (holding that a nurse qualified to opine as to causation of injury arising from gallbladder surgery). Dr. Behrman earned a Doctor of Dental Medicine degree, completed an internship in anesthesia and a residency in oral and maxillofacial surgery, is licensed by the New York Board of Dentistry, and has been certified by the American Board of Oral and Maxillofacial Surgeons since 1986. As Chief of the Division of Dentistry, Oral and Maxillofacial Surgery since June 1996, Dr. Behrman oversees residency programs that provide over 10,000 patient visits each year. He is the Chair of the Institutional Review Board of a medical center in New York. In the past, he has held appointments with the University of Pennsylvania School of Dental Medicine and Memorial Sloan-Kettering Cancer Center and Hospital. particular, Focusing on the qualifications of Dr. Behrman in as opposed to the qualifications of licensed dentists in general, Dr. Behrman s knowledge, skill, experience, training, and education qualify him to opine as to the causation of bronchopneumonia. Dr. Behrman has acquired such skill that he was better qualified than the jury to form an opinion on the causation of bronchopneumonia. Diggs, 177 N.C. App. at 297, 628 -17S.E.2d at 856; see also Terry, 156 N.C. App. at 518, 577 S.E.2d at 332. We note that Defendants do not challenge the qualification of Dr. Gaffney-Kraft to offer her expert opinion that bronchopneumonia was the Decedent s cause of death. C. Relevance of the Expert s Testimony Defendants do not challenge the third step of the Goode analysis, namely, the relevance of the expert s testimony. IV. Conclusion The depositions, affidavits, and pleadings show that Plaintiff, the nonmoving party, forecast evidence showing that Defendants treatment proximately caused the Decedent s death and material that there are genuine determined by the jury. issues of fact to be The evidence constitutes a sufficient forecast of evidence for presentment of the case to the jury. The trial court erred in granting Defendants motions for summary judgment relating to dental care. Reversed. Judge McCULLOUGH concurs. Judge DILLON dissents with separate opinion. NO. COA13-221 NORTH CAROLINA COURT OF APPEALS Filed: 18 February 2014 LESLIE WEBB, Administratrix of the Estate of ROBERT B. WEBB, III, Plaintiff-Appellant, v. Forsyth County No. 10-CVS-1990 WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, UNIVERSITY DENTAL ASSOCIATES, NORTH CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY, WAKE FOREST UNIVERSITY PHYSICIANS, SHILPA S. BUSS, DDS, and REENA PATEL, DDS, Defendants-Appellees. DILLON, Judge, dissenting. At the summary judgment hearing below, Plaintiff relied on the opinions of two dentists Dr. Thomas David and Dr. David Behrman as her forecast of evidence to establish that (1) the provision of dental care by Defendants to Robert B. Webb, III, (Decedent) violated the standard of care for dental professionals; and that (2) this violation proximately caused Decedent to develop bronchopneumonia.3 Because I do not believe that the trial court abused its discretion under N.C. Gen. Stat. 3 Plaintiff relied upon the opinion of a medical doctor that Decedent s bronchopneumonia caused his death. However, this medical doctor never expressed an opinion as to the cause of the bronchopneumonia. -2§ 8C-1, Rule opinions of 702 by these excluding dentists as from to its the consideration cause of the Decedent s bronchopneumonia, I respectfully dissent. Here, Plaintiff bore the burden of producing a forecast of evidence demonstrating (1) the applicable standard of care; (2) a breach of such standard of care by [Defendants]; (3) [that] the injuries suffered by [Decedent] were proximately caused by such breach; and (4) the damages resulting to [Decedent]. Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998). Our Supreme Court has held that [w]here a layman can well-founded have indulge no in mere knowledge speculation (as to and can the do cause no of more a than physical condition), there is no proper foundation for a finding by the trier without expert medical testimony. 263 N.C. 317, 325, 139 S.E.2d 753, Gillikin v. Burbage, 760 (1964) (citations omitted). The theory of Plaintiff s case, here, is that Defendants violated the standard of care applicable to licensed dentists, that this violation proximately caused Decedent to contract bronchopneumonia, and that Decedent s bronchopneumonia was the cause of his death. Defendants do not contend that Plaintiff s forecast of evidence regarding the applicable standard of care -3and the breach judgment. thereof was insufficient to survive summary Indeed, Plaintiff s two dental experts each stated their opinions concerning the applicable standard of care for a licensed dentist in performing Decedent s dental procedure and, moreover, that Defendants had violated that standard.4 Rather, Defendants argue - and the trial court concluded - that these same dentists did not qualify under Rule 702 to offer an expert opinion that the violation of the dental standard of care in this case was the proximate cause of Decedent s bronchopneumonia. The parties do not dispute that Plaintiff s burden was to forecast evidence in the form of expert testimony to lay a proper foundation from which a jury could determine the cause of Decedent s bronchopneumonia. The admissibility of expert testimony on the issue of medical causation is governed by Rule 702(a) of our Rules of Evidence, the relevant version5 of which provides that [i]f scientific, technical or other specialized 4 Likewise, Defendants do not contend that Plaintiff s forecast of evidence regarding the causal connection between Decedent s bronchopneumonia and his death was not sufficient to survive summary judgment, as this connection was established through the opinion of a medical doctor. 5 Rule 702(a) was amended for actions commenced after October 1, 2011 to provide a stricter standard on the admissibility of expert testimony. See State v. McGrady, __ N.C. App. __, __ S.E.2d __ (2014). -4knowledge will assist the trier of fact . . . to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion[.] In the context of a medical malpractice action, Rule 702(a) appears less restrictive as to the qualifications of a witness to provide an expert opinion on medical causation than Rule 702(b) as to expert opinion the qualifications on the of appropriate a witness standard to of provide care. an For instance, while an expert testifying as to the standard of care must generally be a licensed health care provider, this Court has held, in a medical malpractice case, that a witness need not be a licensed medical doctor in order to offer an expert opinion as to medical causation, Diggs v. Novant Health, 177 N.C. App. 290, 628, S.E.2d 851 (2006), noting that our Supreme Court has rejected the notion that only a medical doctor can be qualified under Rule 702 to give an opinion regarding medical causation, id. (citing State v. Tyler, 346 N.C. 187, 203-04, 485 S.E.2d 599, 608 conclude (1997)). that disqualified, Accordingly, Plaintiff s as a matter two of I believe dentist law, from we are experts offering regarding Decedent s onset of bronchopneumonia. bound are to not opinions -5While it is true that the trial court is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony[,] Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citation omitted), I discern no abuse of discretion in the trial court s decision to exclude the opinion testimonies of Drs. David and Behrman concerning the cause of Decedent s bronchopneumonia in the present case. care violation Although Dr. David opined that the standard was the proximate cause of Decedent s bronchopneumonia, he also testified that he was not an expert qualified to offer an opinion as to the cause of Decedent s bronchopneumonia, specifically stating: Again, I m not an expert in that regard, so my only opinion would be as a health care practitioner and general knowledge in that realm, but I m not going to offer an expert opinion. Likewise, Dr. Behrman stated in response to a question from Plaintiff s counsel that it was his opinion that the standard of care violation caused Decedent s bronchopneumonia; however, he qualified his response in stating that his opinion was [w]ithin [his] knowledge as an oral and maxillofacial surgeon and that he would defer [his] opinions related to the development of [Decedent s] bronchopneumonia to a medical doctor. Further Dr. -6Behrman acknowledged that Decedent was a medically complex patient. The majority cites the three-pronged analysis set out by our Supreme Court in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), which the trial court must use in determining the preliminary issue of the admissibility of expert testimony. disagree with the majority s conclusion with respect to I the first prong of the analysis, that the methodology employed by Drs. David and Behrman in determining the cause of Decedent s bronchopneumonia was reliable. testimony where either Plaintiff does not point to any dentist discussed the methodology by which he determined the cause of Decedent s bronchopneumonia. Further, I disagree with the majority s conclusion regarding the second prong of the analysis, that Drs. David and Behrman were qualified to offer expert opinions as to the cause of Decedent s bronchopneumonia. indicating that Plaintiff does not point to any testimony either dentist possessed the requisite knowledge, skill, experience, training or education to state an opinion with any degree of certainty that it was Defendants conduct that caused Decedent s bronchopneumonia. In other words, I do not believe that a trial court abuses its discretion as gatekeeper in excluding the opinion testimony of a witness -7concerning the cause of bronchopneumonia in a patient with a complex that he medical has history worked in simply the because health the care witness profession testified and has extensive experience in dental surgery, but otherwise provided no testimony indicating that he has any expertise in determining the cause of bronchopneumonia. Accordingly, I would vote to affirm the trial court s decision to exclude this testimony.

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