Qualifications for an Expert in North Carolina Medical Malpractice cases

    Medical malpractice cases in North Carolina, like cases with complex or specialized facts, require expert testimony. Unlike other types of cases, North Carolina has strict rules on the person suing a doctor regarding what experts are allowed to testify and what types of opinions they can give. The following is some of the information I share with possible expert witnesses to confirm that any opinion that they may have can be admissible in a medical malpractice trial.

I.    Qualifications of Expert    

    The North Carolina Rules of Evidence have certain requirements for expert testimony regarding an appropriate standard of care in a medical malpractice action. Rule 702(b)(1) of the North Carolina Rules of Evidence requires that standard of care expert witnesses either specialize in the same specialty as the defendant or specialize in a similar specialty that includes the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients. Furthermore, Rule 702(b)(2) requires that during the year immediately preceding the date of the occurrence forming the basis of the complaint, an expert witness must have devoted a majority of his professional time to either active clinical practice of the same health profession as the defendant (and same or similar specialty if the defendant is a specialist), or the instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health care profession as the defendant (and same or similar specialty if the defendant is a specialist).

    Rule 702(d) further provides that a physician who qualifies as an expert and who by reason of active clinical practice or instruction of students has knowledge of the applicable standard of care for nurses, nurse practitioners, etc., or other medical support staff, may give expert testimony with respect to the standard of care of which he is knowledgeable for nurses, nurse practitioners, etc., or other medical support staff.

II.    Qualifications for an Expert Opinion on Breach of Standard of Care    

    In North Carolina, any health care provider who undertakes to render professional services must meet these requirements: (1) to use his best judgment in the treatment and care of his patient; (2) to use reasonable care and diligence in the application of his knowledge and skill to his patient's care; and (3) to provide health care 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 under the same or similar circumstances at the time the health care is rendered. The third requirement above is codified in § 90-21.12 of the North Carolina General Statutes.

    The "same or similar community" requirement in § 90-21.12 has resulted in confusion in some malpractice cases. The legislative intent in adopting this requirement was to avoid a national, or even statewide, standard of care for North Carolina health care providers, to allow for the consideration of the effect that factors such as funding, facilities, and equipment may have on the standard of care for various communities. (Even though almost all doctors I talk with insist that the standard of care should be the same all over the country). In order for an expert testify, to supplement his own experience in the local community, various pieces of information should be supplied, including demographic information on the county, local hospitals, local nursing homes, and doctors; accreditation information on the hospital including what level of services they provide; Medicare information on local health care providers; and North Carolina Medical Board information on doctors that were involved in the case, whether or not there is a question as to their breach of the standard of care. I encourage them to discuss the standard of care or general health care information with their colleagues in the area, and to talk with any national organizations or board specializations that they share with any of the local health care providers. The information is used not only to educate a doctor regarding the general and medical community of where the questioned medical malpractice took place, but also to allow the doctor to compare various communities where they may have practiced. In this manner, they can testify as to a breach in the standard of care in the community where it occurred, even if most of their experience is elsewhere. If, after reviewing this information, they are unable to articulate the standard of care in my community, no matter what their other qualifications may be, they are not allowed to testify in North Carolina.       

III.    Qualifications of Expert Opinion on proximate cause (possible v. probable)

    In addition to expert testimony as to a breach of the standard of care, the expert must testify that the breach was a proximate cause of the injuries or death. In North Carolina, this must be done by a qualified expert. Note that the breach need only be "a" cause, not "the" cause. The opinion of the expert regarding causation must be to a reasonable degree of medical certainty. This need not be 100% certainty. The expert need only testify as to what is "probable," or more likely than not, as opposed to merely "possible." "Probable" is defined as "likely to happen," American Heritage College Dictionary 1090 (3d ed.1993), and as "[h]aving more evidence for than against; ··· likely," Black's Law Dictionary 1201 (6th ed.1990). By contrast, "possible" has been defined as "that [which] may or may not occur ···," Webster's Third New International Dictionary 1771 (3d ed.1968), and as "[c]apable of existing, happening, being, becoming or coming to pass; feasible ···," Black's Law Dictionary 1166 (6th ed.1990).

IV.    Conclusion    

    The first thing that needs to be done in a possible medical malpractice situation, is to make sure that the expert you are asking to formulate an opinion as to whether or not medical malpractice has occurred, is to ensure that the expert is qualified: (1) to render an opinion as to the appropriate standard of care for a health care provider practicing within his specialty or area of expertise in the local community; and (2) to testify as an expert witness in North Carolina under Rule 702 of the North Carolina Rules of Evidence. Under Rule 9(j) of the North Carolina Rules of Civil Procedure, a qualified opinion is needed prior to filing the lawsuit, therefore it is vitally important that the doctor understand the requirements for experts and expert opinions in North Carolina, and are able to render her opinion under these rules. An opinion that does not conform to these rules will be thrown out, and as a result, an entire case could be dismissed without ever getting into the merits of the case.

–Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.