Court of Appeals Reinstates Medical Malpractice Suit

In Day v. Bratt, et al. (COA 09-573-2), decided January 17, 2012, the North Carolina Court of Appeals reversed a trial court’s dismissal of a medical malpractice suit.  At the trial, the Defendant doctors and hospital argued that the Plaintiff’s standard of care expert was not qualified to testify as to the applicable standard of care and that the Plaintiff’s causation expert provided insufficient evidence of causation.

A key element of the trial court’s dismissal was one expert’s belief that a national standard of care existed for laparoscopic surgery.  The Court of Appeals found that although the witness believed that such a standard of care existed, he did not apply a national standard of care in reaching his conclusion that the doctors and hospital had violated the standard of care in the local community.

In determining that the causation experts’ testimony was sufficient for the case to reach the jury, the court pointed out that there is one standard to determine whether or not an expert’s testimony should be heard by the jury and a different and more lenient standard as to whether that testimony is sufficient to take the case to the jury.  The court stated that expert testimony related to causation is admissible “as long as the testimony is helpful to the jury and based sufficiently on information reasonably relied upon under Rule 703 [of the North Carolina Rules of Evidence].”  The court noted that the Plaintiff presented “more than a scintilla of evidence” supporting causation and that was sufficient to defeat a motion for directed verdict.

This case highlights  the challenges faced by Plaintiffs and their attorneys in medical malpractice cases.  Great care must be taken in not only selecting a qualified expert, but in obtaining the precise testimony needed to survive attempts by the Defendants to prevent the case from reaching the jury.

Bill Cannon About Bill Cannon

Bill Cannon is a native of Leesburg, Georgia and has been practicing law for more than 35 years. He focuses his practice in the area of civil litigation and has extensive experience in complex litigation. He has a keen interest in professionalism and has been a speaker for orientations on professionalism at law schools. Bill is an author of a variety of professional articles and has made many presentations on professionalism in the practice of law and the importance of the justice system.