The Court of Appeals of North Carolina (“North Carolina Appellate Court”) held in its opinion filed on October 6, 2020 in a North Carolina medical malpractice case, “Dr. Erdmann’s expert testimony, required to establish Plaintiff’s prima facie case of medical negligence, fails to articulate any negligent act or omission by Defendants that proximately caused Plaintiff’s injury beyond mere speculation … Accordingly, Plaintiff did not meet his burden to forecast specific facts Dr. Saini breached the applicable standard of care and was the proximate cause of Plaintiff’s injury. The trial court’s grant of summary judgment in favor of Defendants was proper.”
The Underlying Facts
Defendant Saira H. Saini M.D. performed bilateral chest liposuction on the plaintiff on October 31, 2014, as part of revision gynecomastia surgery. On November 4, 2014, the plaintiff removed his bandages and discovered what he described as big, purplish black blisters across his chest that appeared to be filled with pus. The plaintiff continued to see Dr. Saini for post-operative care, which included injections and laser treatment for scar therapy, until March 2015.
On February 27, 2018, the plaintiff filed his North Carolina medical malpractice complaint alleging several medical malpractice claims against Dr. Saini and Carolina Plastic Surgery of Fayetteville. Dr. Erdmann, plaintiff’s expert, testified during his deposition that the plaintiff’s hypertrophic scarring was the result of burns the plaintiff obtained during the procedure. Dr. Erdmann testified hypertrophic scarring, such as the plaintiff’s, was usually the result of trauma or burns but could also occur in the absence of physician negligence and with the best of care. It was Dr. Erdmann’s opinion Dr. Saini breached the standard of care owed to the plaintiff on the basis of the plaintiff’s “excessive scarring outside the surgical field.” Dr. Saini’s counsel requested Dr. Erdmann “pinpoint to anything that Dr. Saini did or did not do that caused the third-degree burns or excessive scarring[,]” however, Dr. Erdmann stated: “I cannot pinpoint this. It would be pure speculation.”
In an exchange with the plaintiff’s own counsel, Dr. Erdmann reiterated his theories about the burns “are speculation because [he] couldn’t find any — anything in the medical record that would explain the burns.” Dr. Erdmann was also unable to exclude the possibility of something happening after the plaintiff’s surgery.
The trial court entered summary judgment for the defendants, and the plaintiff appealed.
North Carolina Appellate Court Opinion
The North Carolina Appellate Court stated, “On appeal, Plaintiff contends an issue of material fact exists regarding whether Dr. Saini used a “Vaser” or heat-assisted laser liposuction machine. Plaintiff relies solely upon Dr. Erdmann’s deposition testimony to support this argument. However, Dr. Erdmann’s deposition testimony is—in his own words—speculative … where a plaintiff is unable to forecast specific facts supporting proximate cause, this Court has held summary judgment proper.”
The North Carolina Appellate Court held: “In the case sub judice, there is no testimony from Dr. Erdmann—Plaintiff’s sole expert witness—identifying a negligent act that likely caused Plaintiff’s injury. Instead, Dr. Erdmann testified hypertrophic scarring can occur in the absence of physician negligence. Although Dr. Erdmann hypothesized two theories for Plaintiff’s alleged burns, he conceded his theories were based on speculation. Additionally, when Dr. Saini’s counsel asked Dr. Erdmann if he could “exclude the possibility of something happening after the surgery?” Dr. Erdmann answered, “I cannot exclude anything.” … Dr. Erdmann did not eliminate unlikely causes of Plaintiff’s injury and, in fact, concedes multiple times much of his opinion is based on speculation. Moreover, Dr. Erdmann did not identify “a precise allegedly negligent act” by Dr. Saini that likely caused Plaintiff’s injuries … Thus, Dr. Erdmann’s expert testimony, required to establish Plaintiff’s prima facie case of medical negligence, fails to articulate any negligent act or omission by Defendants that proximately caused Plaintiff’s injury beyond mere speculation.”
Source McDonald v. Saini, No. COA19-1107.
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