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North Carolina Appeals Court Finds Expert Witness Established His Familiarity With Standard Of Care In Community

 
 

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.

            At trial, the Billingses 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 North Carolina, 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.

            The North 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 communities.

            Here Kaplan 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

 

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