The Supreme Court of North Carolina (“North Carolina Supreme Court”) stated in its August 14, 2020 opinion, “we must determine whether an internist proffered by plaintiff to provide standard of care expert testimony against three hospitalists is properly qualified under Rule 702(b) of the North Carolina Rules of Evidence. We conclude that plaintiff’s expert is qualified and affirm the decision of the Court of Appeals. We also must decide whether there is sufficient evidence in the record to raise a genuine issue of material fact that the hospitalists proximately caused plaintiff’s injury. We conclude that the record evidence here was sufficient and thus also affirm the decision of the Court of Appeals as to this issue.”
The Underlying Facts
The decedent was hospitalized and prescribed Levaquin. Levaquin is an antibiotic commonly used to treat infection and has a “black box” warning, the strongest warning required by the Food and Drug Administration (FDA), warning of an increased risk of tendon ruptures in patients over sixty years old and in patients who are concomitantly taking a corticosteroid (the decedent had been taking a daily dose of prednisone—a corticosteroid used to treat an inflammatory disorder—for years before being hospitalized). The most prevalent tendon rupture attributable to Levaquin use is the rupture of the Achilles tendon.
While in the hospital, the decedent was treated by three doctors who are board certified in internal medicine and identified themselves as hospitalists (physicians who specialize in internal medicine in a hospital setting and care for hospitalized patients). During the decedent’s hospitalization, each of these hospitalists prescribed her Levaquin and continued her on a daily dose of prednisone. All three doctors testified that they were familiar with Levaquin and its “black box” warning at the time they prescribed the medication. They also testified that they were aware that the decedent was over the age of sixty and was taking a corticosteroid.
The decedent’s Achilles tendon subsequently ruptured, and she had to undergo tendon repair surgery. She never fully recovered and ultimately died from pneumonia and debility.
The decedent’s executor brought a North Carolina medical malpractice wrongful death lawsuit alleging the medical negligence of the three hospitalists. The plaintiff named Dr. Genecin as his sole standard of care expert. In order for Dr. Genecin to provide expert testimony against the hospitalists, who hold themselves out as specialists: (1) Dr. Genecin must be a licensed health care provider in North Carolina or another state; (2) Dr. Genecin must have the same specialty as the hospitalists or have a similar specialty; if Dr. Genecin has a similar specialty, his specialty must include the performance of the procedure that is the subject of the complaint and he must have prior experience treating patients similar to plaintiff; and (3) Dr. Genecin must have devoted the majority of his professional time to either the active clinical practice of the same or similar specialty as the hospitalists and/or the instruction of students in the same specialty during the year immediately preceding plaintiff’s hospitalization.
Dr. Genecin testified in his video deposition that he is a licensed health care provider in Connecticut, thereby fulfilling the first requirement. As to the second requirement (whether Dr. Genecin has the same or similar specialty as the hospitalists), Dr. Genecin is board certified in internal medicine, meaning that he specializes in and is known as an internist. The defendant hospital’s physicians hold themselves out as hospitalists, meaning that they specialize in internal medicine in a hospital setting and care for hospitalized patients. Like Dr. Genecin, the hospitalists are all board certified in internal medicine. The hospitalists and Dr. Genecin also have similar education, training, and experience. Though Dr. Genecin’s practice is broader in scope, it includes the scope of the hospitalists’ practice. The North Carolina Supreme Court held, “Based on the evidence here that Dr. Genecin and the hospitalists all practice within the same scope of internal medicine, we conclude that the evidence shows that here, internist and hospitalist are similar specialties.”
As to whether Dr. Genecin’s work as an internist includes the performance of the procedure that was the subject of the complaint, the North Carolina Supreme Court stated that the procedure that is the subject of the complaint includes the selection, prescription, and management of medication in the overall care of a patient, which includes a physician’s responsibility to recognize drug warnings and interactions. The North Carolina Supreme Court stated that pursuant to Rule 702(b), the physician must do these things within the context of a similar specialty and have experience treating patients similar to the plaintiff.
The North Carolina Supreme Court stated, “It is clear from Dr. Genecin’s testimony that his practice as an internist includes the procedures alleged here … We conclude that this testimony is sufficient to satisfy the requirement that Dr. Genecin’s practice as an internist includes the procedures alleged in the complaint.” Furthermore, “Dr. Genecin testified without objection that in the year prior to [the decedent’s] hospitalization he spent 55%–60% of his overall professional time in clinical practice as an internist, including two months of the year in which he practiced internal medicine in a hospital full time … we conclude that the evidence shows without contradiction that Dr. Genecin spent the majority of his professional time the year prior to [the decedent’s] hospitalization in the active clinical practice of a qualifying specialty similar to the hospitalists.”
The North Carolina Supreme Court held: “The record contains undisputed evidence that Dr. Genecin meets each of the applicable requirements of Rule 702(b). Therefore, we conclude that Dr. Genecin may properly offer expert testimony on the standard of care against the hospitalists. We conclude that the trial court erred as a matter of law and affirm the decision of the Court of Appeals on this issue.”
Source Da Silva v. WakeMed, No. 326PA18.
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