Opinion
No. 06-446.
Filed August 7, 2007.
Alamance County No. 04 CVS 1220.
Appeal by Plaintiffs from orders entered 22 December 2005 and 3 January 2006 by Judge J.B. Allen, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 12 October 2006.
Law Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr., for Plaintiffs-Appellants. Sharpless Stavola, P.A., by Joseph P. Booth, III, for Defendant-Appellee Alamance Regional Medical Center, Inc. Parker Poe Adams Bernstein LLP, by John H. Beyer and Leigh A. Kite, for Defendants-Appellees Kernodle Clinic, Inc., Mark D. Doner, M.D., and Douglas W. Peed, M.D.
In this medical malpractice case, Plaintiffs appeal from the trial court's orders granting summary judgment in favor of Defendants. For the reasons stated herein, we dismiss Plaintiffs' appeal as it pertains to Defendant Alamance Regional Medical Center, Inc. ("ARMC") and affirm the trial court's order granting summary judgment in favor of Defendants Kernodle Clinic, Inc. ("Kernodle Clinic"), Mark D. Doner, M.D., and Douglas W. Peed, M.D. (collectively, "the Kernodle Defendants").
I. FACTS AND PROCEDURE
In 1995, Dr. Doner began serving as Plaintiff Julia Webb's primary care physician. Since that time, Dr. Doner saw Ms. Webb at Kernodle Clinic's facilities in Burlington, North Carolina, every three to four weeks for multiple medical problems including chronic obstructive pulmonary disease, hypertension, diabetes, and sleep apnea. On 20 June 2001, Dr. Doner admitted Ms. Webb to ARMC for "shortness of breath, chest pain, cough[,] and inability to sleep." That day, and as part of her course of treatment, ARMC's nurses placed an intravenous line ("IV") in Ms. Webb's left hand. On 21 June 2001, the IV was moved to Ms. Webb's right hand after "pain and irritation" developed at the left hand site. Immediately after injections were made through the IV in her right hand, Ms. Webb's hand began swelling, and, later that day, Ms. Webb began "complaining of pain in the hand[.]" On 22 June 2001, Ms. Webb was discharged from ARMC.
On 25 June 2001, Ms. Webb met with Lisa Ray, a physician's assistant at Kernodle Clinic's Acute Care Clinic, complaining of pain in her right hand. Ms. Ray instructed Ms. Webb to apply cold compresses to the hand and to return the following day if her pain continued. On 26 June 2001, Ms. Webb returned to the Acute Care Clinic and was examined by Dr. Peed. After his examination, Dr. Peed sent Ms. Webb home and told her to return if her pain continued. Ms. Webb met with Dr. Peed again on 28 June 2001, and Dr. Peed again sent her home after an examination. On 29 June 2001, Ms. Webb returned to the Acute Care Clinic and was seen by another of the clinic's doctors. That doctor diagnosed "probable significant deep venous thrombosis in right upper arm with possible arterial compromise due to increasing edema and possible compartment syndrome" and admitted Ms. Webb on an emergency basis to ARMC's intensive care unit. Thereafter, Ms. Webb was transferred to Wake Forest University Baptist Medical Center where a surgeon diagnosed right hand compartment syndrome and performed a fasciotomy on Ms. Webb's hand.
By complaint filed 28 May 2004, Plaintiffs sought damages alleging that Defendants were negligent in their treatment of Ms. Webb, resulting in permanent injury to Ms. Webb's right hand. Plaintiffs further sought damages on the theory that Plaintiff Donald Webb suffered loss of consortium as a result of Ms. Webb's injury. Pursuant to the trial court's discovery scheduling order entered 10 January 2005, Plaintiffs identified Dr. Robert Scott Harris of Boston, Massachusetts, as an expert witness expected to testify (1) as to the "standards of care for [medical professionals] in communities similar to Burlington" and (2) "that had Ms. Webb received appropriate treatment in a timely manner, she reasonably could have avoided the complications and surgery that she later had." Dr. Harris was deposed on 21 April 2005.
On 16 November 2005, ARMC filed a motion for summary judgment on the ground that Plaintiffs failed to produce any evidence that its alleged negligence proximately caused Plaintiffs' injuries. On17 November 2005, the Kernodle Defendants moved for summary judgment on the grounds that Plaintiffs failed to prove the Kernodle Defendants proximately caused any injury or damage to Plaintiffs and that Plaintiffs failed to designate a medical expert who was qualified to testify that Defendants breached the applicable standard of care. Dr. Harris's deposition transcript was attached to the Kernodle Defendants' motion. In response, Plaintiffs filed a motion in opposition and included with their motion an affidavit of Dr. Harris in which he stated, inter alia, that (1) "[h]e is familiar with the standards of care for physicians with similar training and experience of Mark Doner and Douglas Peed in communities similar to Burlington, North Carolina in 2001[,]" (2) "[h]e is familiar with the standards of care for physician assistants with similar training and experience of Lisa Ray in communities similar to Burlington, North Carolina in 2001[,]" (3) it is his opinion that the treatment and care of Ms. Webb "did not comply with such applicable standards of care[,]" and (4) the failure "to comply with the applicable standards of care and to appropriately diagnose and treat [Ms.] Webb's right hand subsequent to the IV infiltration was a direct and proximate cause of the . . . compartment syndrome[.]"
On 22 December 2005, the trial court granted summary judgment in favor of the Kernodle Defendants. On 3 January 2006, the trial court granted summary judgment in favor of ARMC. Plaintiffs timely filed their notice of appeal on 11 January 2006.
II. DISCUSSION
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). "On appeal of a trial court's allowance of a motion for summary judgment, we consider whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law." Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). "Evidence presented by the parties is viewed in the light most favorable to the non-movant." Id. (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)).
In a medical malpractice case, "a plaintiff has the burden of showing `(1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff.'" Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp., 175 N.C. App. 474, 477, 624 S.E.2d 380, 383 (2006) (quoting Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998)).
A. ARMC
Plaintiffs bring forward two assignments of error on appeal. By their second assignment of error, Plaintiffs argue that the trial court erred in granting summary judgment in favor of ARMC because there was a genuine issue of material fact that ARMC proximately caused Plaintiffs' injuries. By motion filed 1 June 2006, ARMC asserts that Plaintiffs have abandoned their second assignment of error because "[P]laintiffs have failed to cite even one case or other legal authority in support [thereof]." We agree with ARMC.
"It is well settled that the Rules of Appellate Procedure `are mandatory and not directory.'" State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (quoting Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005)). Pursuant to Rule 2 of the Rules of Appellate Procedure, however, this Court may "suspend or vary the requirements or provisions of any of [the] rules" in order "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest." N.C. R. App. P. 2. "Before exercising Rule 2 to prevent a manifest injustice, [this Court] must be cognizant of the appropriate circumstances in which the extraordinary step of suspending the operation of the appellate rules is a viable option." Hart, 361 N.C. at 317, 644 S.E.2d at 206.
Rule 28 of the Rules of Appellate Procedure provides, in part, that "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C. R. App. P. 28(b)(6) (emphasis added). "We read this rule as setting out two scenarios under which an appeal may be deemed abandoned, (1) assignments of error are not set out in the appellant's brief, or (2) in support of which no reason or argument is stated or authority cited." Strader v. Sunstates Corp., 129 N.C. App. 562, 567, 500 S.E.2d 752, 755, disc. review denied, 349 N.C. 240, 514 S.E.2d 274 (1998). "The first requires the party to direct the court to the appropriate assignment of error in the record and the second requires the party to cite authority or to make a legal argument for the extension or modification of the law." Id. at 567-68, 500 S.E.2d at 755.
In their brief, Plaintiffs clearly direct our attention to their second assignment of error, which states:
Plaintiff-Appellant assigns as error the action of the Superior Court in granting the motion for summary judgment of [ARMC] in that there exists a genuine issue of material fact that defendant's negligence was a cause of plaintiff's injury.
However, Plaintiffs have submitted no authority in support of their contention that a genuine issue of material fact exists on the issue of proximate cause. Neither have Plaintiffs argued for the extension or modification of existing law. Thus, Plaintiffs have abandoned their second assignment of error. See Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 ("It is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein. This assignment of error is deemed abandoned. . . ."), disc. review denied, 360 N.C. 63, 623 S.E.2d 582 (2005). In light of our Supreme Court's decision in Hart, supra, we elect not to suspend the rules in order to reach the merits of Plaintiffs' claim. We conclude that the circumstances herein presented do not warrant suspension of Rule 28(b)(6). Even were we to exercise our "discretion to alter or suspend [the] rule?" in this case, Hart, 361 N.C. at 316, 644 S.E.2d at 205, we would conclude that there is no genuine issue of material fact on the issue of whether ARMC proximately caused Plaintiffs' injuries. In his deposition testimony, Dr. Harris stated that an IV can spontaneously infiltrate or extravasate for no known reason even when all due care has been exercised and that he had no criticism of the care provided by ARMC's nurses. Dr. Harris's affidavit does not speak to the issue of proximate cause as it pertains to ARMC. Finally, we are wholly unconvinced that the designation of two nurses expected to testify "that continuing to administer vesicant drugs (tissue destroying) to an already symptomatic IV site was not compliant with the applicable standards of care for nurses" without submission of an affidavit or deposition creates a genuine issue of material fact. As there is no genuine issue of material fact on the issue, suspending or altering the rule in this case would not prevent "manifest injustice[.] "Plaintiffs' second assignment of error is deemed abandoned and Plaintiffs' appeal as it pertains to ARMC is dismissed.
B. THE KERNODLE DEFENDANTS
By their first assignment of error, Plaintiffs argue that the trial court erred in granting summary judgment in favor of the Kernodle Defendants because there was a genuine issue of material fact that (1) Dr. Harris was competent to testify as to the standard of care and that (2) the Kernodle Defendants proximately caused Plaintiffs' injuries. We disagree.
The applicable standard of care in a medical malpractice case is set forth in N.C. Gen. Stat. § 90-21.12:
In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice 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.
N.C. Gen. Stat. § 90-21.12 (2005). "Because questions regarding the standard of care for health care professionals ordinarily require highly specialized knowledge, the plaintiff must establish the relevant standard of care through expert testimony." Smith v. Whitmer, 159 N.C. App. 192, 195, 582 S.E.2d 669, 671-72 (2003). "[A] person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person" meets criteria set forth in N.C. Gen. Stat. § 8C-1, Rule 702. N.C. Gen. Stat. § 8C-1, Rule 702 (2005).
To establish the relevant standard of care, an expert witness "must demonstrate that he is familiar with the standard of care in the community where the injury occurred, or the standard of care of similar communities." Billings v. Rosenstein, 174 N.C. App. 191, 194, 619 S.E.2d 922, 924 (2005), disc. review denied, 360 N.C. 478, 630 S.E.2d 664 (2006). In determining whether an expert has demonstrated familiarity with the standard of care, a trial court "should consider whether an expert is familiar with a community that is similar to a defendant's community in regard to physician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community." Pitts v. Nash Day Hosp., Inc., 167 N.C. App. 194, 197, 605 S.E.2d 154, 156 (2004) (citations omitted), aff'd per curiam, 359 N.C. 626, 614 S.E.2d 267 (2005). "In the absence of such a showing, summary judgment is properly granted." Purvis, 175 N.C. App. at 478, 624 S.E.2d at 384 (citations omitted).
Dr. Harris was the only expert identified by Plaintiffs to testify regarding the appropriate standard of care for the Kernodle Defendants. Assuming arguendo that Dr. Harris qualified under Rule 702 to give standard of care testimony, Dr. Harris never testified at his deposition that he was familiar with the standard of care in the community where the injury occurred or in similar communities. Dr. Harris testified that he practiced medicine only in Massachusetts and that he had never received training or practiced medicine in North Carolina. He did not know any physicians practicing medicine in North Carolina. Although Dr. Harris had visited North Carolina one time to play golf, he had never been to Burlington and did not know where Burlington is located or in what county Burlington sits. Nevertheless, Plaintiffs contend that Dr. Harris demonstrated his familiarity with the applicable standard of care in his deposition testimony:
Q. Can you tell me what you know about the medical community in or about Burlington, North Carolina?
A. The only thing I can say is that it sounds from my little bit of research that I did about [ARMC's] hospital, [it] sounds very similar to Winchester Hospital in its size and services offered.
Q. Other than the fact that there's some familiarity between the size and services of Winchester Hospital where you practice here in Massachusetts and [ARMC], do you have any familiarity with the medical community in or around Burlington?
A. No, I don't.
. . . .
Q. And other than some similarities between [ARMC] and Winchester Hospital, I understand it's your testimony you don't have any other familiarity with the medical community in Alamance County as it existed in July 2000 to June 2001?
A. Yes.
. . . .
Q. And in terms of how Dr. Doner, Dr. Peed, Ms. Ray, were to act within the standards of their community, isn't it fair to say that you're not familiar with those community standards beyond the size and scope of the hospital at [ARMC]?
[Plaintiff's Counsel]: Objection.
A. I think I have some familiarity with a similar medical system, similar in size and in number of patients treated, and so forth by working at Winchester Hospital.
Q. When you say a similar medical system, you're speaking of a hospital, true?
A. Yes.
Q. And you would agree, wouldn't you, that in terms of local standards, there may be different standards for a hospital, its staff, its nurses and those physicians who practice within it?
[Plaintiff's Counsel]: Objection.
A. I think there are standards that apply to different communities, yes. For example, academic medical centers versus community hospitals.
Q. I'm trying to understand whether or not you would agree that the standard that you may be familiar with at a particular hospital may not give you familiarity with how physicians in that community practice?
[Plaintiff's Counsel]: Objection.
A. I think that that is probably a fair statement.
Dr. Harris's "little bit of research" consisted of his review of "[w]ebsite pages" which he testified did not define the applicable standard of care. The extent of Dr. Harris's familiarity with the community in or about Burlington is that ARMC "sounds very similar to Winchester Hospital in its size and services offered." Winchester Hospital is located in a suburb of Boston, "ten miles north of [the city]." Dr. Harris demonstrated no familiarity with the "physician skill and training, facilities, equipment, funding, [or] the physical and financial environment of [Burlington, North Carolina]." Pitts, 167 N.C. App. at 197, 605 S.E.2d at 156. In fact, Dr. Harris testified that his familiarity with Winchester Hospital, a hospital similar in "size and services offered" to ARMC, does not make him familiar with how physicians in ARMC's community practice. Thus, there is no genuine issue of material fact, based on Dr. Harris's deposition testimony, on the issue of Dr. Harris's familiarity "with the standard of care in the community where the injury occurred, or the standard of care of similar communities." Billings, 174 N.C. App. at 194, 619 S.E.2d at 924.
Plaintiffs, however, contend that Dr. Harris's affidavit, filed in response to Defendants' motions for summary judgment, by itself creates a genuine issue of material fact regarding Dr. Harris's familiarity with the applicable standard of care. We disagree. In his affidavit, Dr. Harris avers only that he "is familiar with the [applicable] standards of care . . . in communities similar to Burlington, North Carolina in 2001." However, given Dr. Harris's deposition testimony, "this affidavit alone is insufficient to create an issue of material fact to overcome summary judgment." Belcher v. Fleetwood Enterprises, Inc., 162 N.C. App. 80, 86, 590 S.E.2d 15, 19 (2004) (citing Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978), aff'd per curiam by an equally divided court, 297 N.C. 696, 256 S.E.2d 688 (1979)). Plaintiffs' argument is without merit.
Because there is no genuine issue of material fact on the issue of standard of care, we need not address the contention that the Kernodle Defendants proximately caused Plaintiffs' injuries. See Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)("If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.").
AFFIRMED.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).