North Carolina Appellate Court Reverses Summary Judgment For Medical Malpractice Defendants

In its unpublished opinion filed on April 17, 2018, the Court of Appeals of North Carolina (“North Carolina Appellate Court”) held that the trial court erred in disqualifying the plaintiff’s expert witness and reversed the trial court’s order that granted summary judgment to the defendants based on the absence of expert testimony to establish the plaintiff’s claims of the defendants’ alleged negligence and the plaintiff’s failure to present sufficient evidence of proximate cause.

The Underlying Facts

The 76-year-old decedent went to the defendant hospital on October 30, 2012, with symptoms of fever, altered mental status, and weakness. At the time, the decedent was documented to be taking Prednisone, a corticosteroid, on a daily basis. The emergency room physician collected urine and blood cultures, in accordance with standard procedure for patients with suspected infection and sepsis.

Later, the physician ordered that 500 mg of intravenous Levaquin be given to the decedent. Once admitted to the medical floor of the hospital, the decedent was diagnosed with a urinary tract infection for which 750 mg of Levaquin daily by IV was ordered, followed by 5 mg of Prednisone to be given daily by tablet.

On November 1, 2012, the decedent’s urine and blood cultures tested positive for Klebsiella pneumonia. The decedent was continued on Levaquin and Prednisone through November 4, 2012, after which the decedent’s Prednisone dosage was increased to 30 mg by tablet, twice a day with meals, and the decedent was also given 125 mg of Methylprednisolone by IV. On November 5, 2012, the decedent was given 750 mg of Levaquin by tablet, and 30 mg of Prednisone by tablet. The decedent was discharged that day to a nursing home for rehablitation with instructions to be given 750 mg of Levaquin by tablet for four more days, and 60 mg of Prednisone (30 mg twice a day) by tablet, tapered over a three-month period.

On November 19, 2012, the decedent was diagnosed with a left Achilles tendon rupture for which she had repair surgery on November 27, 2012. The decedent became essentially bedridden and required nursing care for extended periods of time until her death, on September 7, 2013. Her death certificate listed pneumonia and debility as the causes of her death.

The plaintiff alleged in the North Carolina medical malpractice wrongful death complaint that the decedent’s pneumonia and debility arose from her Achilles tendon injury and alleged her death was proximately caused by the medical negligence of the defendants. Specifically, the plaintiff alleged that the hospitalists who cared for the decedent in the defendant hospital breached the standard of care by, inter alia: (1) failing to assess, obtain and document accurate information in the decedent’s medical records; (2) administering Levaquin to a seventy-six year old woman taking corticosteroids, contradictory to the Levaquin black box warning; (3) failing to recognize other medications were available for the decedent’s sickness; (4) increasing the dosage of the decedent’s Prednisone while continuing to prescribe Levaquin; and (5) discharging the decedent with orders to continue giving Levaquin concomitantly with a corticosteroid.

The box warning on Levaquin stated at the time: Fluoroquinolones, including Levaquin, are associated with an increased risk of tendinitis and tendon rupture in all ages. This risk is further increased in older patients usually over 60 years of age, in patients taking corticosteroid drugs, and in patients with kidney, heart or lung transplants. In addition, it may exacerbate muscle weakness in people with a disease called myasthenia gravis and should be avoided in those cases.

The defendant hospital’s medication delivery software contained a “pop up” for those requesting Levaquin or levofloxacin with the following warning: “Concurrent use of quinolones and corticosteroids may increase the risk of tendinitis and/or tendon rupture. This effect is most common in the Achilles tendon . . . .”

The defendants filed a motion to disqualify the plaintiff’s expert, contending that he lacked the proper qualifications to render an opinion on the standard of care applicable to a hospitalist, by distinguishing between a hospitalist’s full time work in a hospital and the majority of the plaintiff’s expert’s time spent as a clinical practitioner.

The trial court concluded that the plaintiff’s expert’s testimony was legally insufficient on the issue of proximate causation and therefore the plaintiff failed to provide sufficient evidence on the issue of proximate causation. The trial court therefore granted the defendants’ motion for summary judgment, and the plaintiff appealed.

The North Carolina Appellate Court stated that the plaintiff’s expert must be “of the same specialty [as Defendants’ hospitalists] or a similar specialty which includes within its specialty the performance[.]” Additionally, the plaintiff’s expert must have devoted the majority of his professional time to either: (1) the active clinical practice of hospitalists’ purported specialty or similar specialty; or (2) the instruction of students in the same or similar specialty. N.C. R. Evid. 702(b)(2)(a)-(b). For the purposes of Rule 702(b), a “specialist” is defined as “a doctor who is either board certified in a specialty or who holds himself out to be a specialist or limits his practice to a specific field of medicine[.]”

The defendants argued that hospitalists, who are board certified in internal medicine and who practice only in a hospital setting, are of a distinct specialty, and that the plaintiff’s expert, although board certified in internal medicine, does not solely practice in a hospital setting.

The North Carolina Appellate Court concluded that the plaintiff’s expert, by holding himself out to be a specialist of internal medicine, is of a similar specialty to the defendants’ hospitalists: like the defendants’ hospitalists, the plaintiff’s expert is specialized towards internal medicine. Furthermore, as a clinical associate professor of internal medicine, the plaintiff’s expert teaches individuals who go on to specialize as hospitalists.

The defendants further argued that the plaintiff’s expert needed to have spent a majority of his time practicing in a hospital setting to have the requisite expertise necessary to serve as an expert witness. The North Carolina Appellate Court concluded that the plaintiff’s expert’s qualification as an expert witness is not determined by the fact he does not solely practice in a hospital setting: he practices in a clinical setting ten months out of the year and in a hospital setting two months out of the year; he practices in the overall management and care of a patient, which includes prescribing medications and obtaining medical consultations or medical specialists; and, additionally, the hospitalists involved in the decedent’s care testified that the overall management and care of a patient falls within their duties as hospitalists.

Lastly, the defendants argued that the plaintiff’s expert was not qualified as an expert due to his inexperience in administering intravenous medication. The North Carolina Appellate Court stated, however, that the use of an intravenous medication is not at issue in the present case. Rather, the issue is rooted in the selection of medication, subsequent prescription of medication, and alleged failure to mind potential drug interactions. The North Carolina Appellate Court concluded that the plaintiff’s expert’s experience prescribing medication and recognizing how pharmaceutical drugs interact with one another is apparent by his teaching position and patient care activities in the clinical setting, and concluded that the plaitiff’s expert is capable of providing testimony regarding the relevant standard of care in the instant case.

The North Carolina Appellate Court held: “we conclude [the plaintiff’s expert] qualifies as an expert in this case, based on his familiarity and experience in the actions taken by Defendants’ hospitalists, and ability to speak to the relevant standard of care. We, therefore, conclude the trial court erred in disqualifying [him] as Plaintiff’s expert witness.”

Source Da Silva v. WakeMed, No. COA17-820.

If you or a family member may have been injured as a result of hospital malpractice in North Carolina or in another U.S. state, you should promptly consult with a North Carolina medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Friday, May 11th, 2018 at 5:10 am. Both comments and pings are currently closed.

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