HLD, v. 33, n. 11 (November 2005)
North Carolina Appeals
Court Finds Expert Witness Established His
Familiarity With Standard Of Care In Community
A North Carolina appeals court held October 18
that an expert who was familiar with the standard of care in the community
where the injury occurred or a similar community was competent to testify in a
medical negligence case.
Plaintiffs Jennie Lynn and Everette Billings alleged defendants Thomas J. Mascenik, M.D., Jerome H. Rosenstein, M.D., and Foothills Center for Women, P.A., negligently treated Ms. Billings resulting in her having a
stroke due to undiagnosed eclampsia.
presented testimony from an expert, Dr. Peter Kaplan, M.D., a neurologist
practicing in Baltimore, Maryland and a professor at Johns Hopkins
University School of Medicine. Kaplan completed his residency and fellowship in
North Carolina and was licensed to practice in
but had not practiced in the state for fifteen years. In his deposition
testimony, Kaplan testified that he was familiar with the standard of care for
neurologists practicing in the Wilkes County, North Carolina area. This
familiarity was based on his experience working in Fayetteville, North Carolina.
Mascenik filed a motion for summary judgment on the ground
that Kaplan was not qualified to testify as an expert witness. The trial court
granted Mascenik summary judgment and later dismissed
the claims against the other defendants. Plaintiffs appealed.
Carolina Court of Appeals reversed, finding Kaplan could testify as an expert
witness. The appeals court noted that it is not necessary for a witness to have
actually practiced in the same community as the defendant as long as the
witness can demonstrate that he or she is familiar with the standard of care in
the community where the injury occurred or the standard of care in similar
testified that he was familiar with the standard of care in Wilkes County
(where the injury occurred). Thus, the appeals court concluded "that the Billingses' expert witness demonstrated that he was
sufficiently familiar with the standard of care 'among members of the same
health care profession with similar training and experience situated in the
same or similar communities at the time of the alleged act giving rise to the
cause of action� as to offer relevant and competent evidence regarding the
alleged negligence by Dr. Mascenik." See N.C.
Gen. Stat. � 90-21.12.
Billings v. Rosenstein, No.
COA04-1647 (N.C. Ct.
App. Oct. 18, 2005).
To read the case, go to http://www.aoc.state.nc.us/www/public/coa/opinions/2005/041647-1.htm