{
  "id": 11649254,
  "name": "EDWARD LEE TRAPP, Administrator of the Estate of MARY CATHERINE TRAPP, Deceased, Plaintiff v. GERALD A. MACCIOLI, M.D., Defendant",
  "name_abbreviation": "Trapp v. Maccioli",
  "decision_date": "1998-04-07",
  "docket_number": "No. COA97-720",
  "first_page": "237",
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  "last_updated": "2023-07-14T18:14:06.814789+00:00",
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  "casebody": {
    "judges": [
      "Judges WALKER and TIMMONS-GOODSON concur."
    ],
    "parties": [
      "EDWARD LEE TRAPP, Administrator of the Estate of MARY CATHERINE TRAPP, Deceased, Plaintiff v. GERALD A. MACCIOLI, M.D., Defendant"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nEdward Lee Trapp (plaintiff) appeals from the trial court\u2019s dismissal of his suit against Gerald M. Maccioli, M.D. (defendant).\nThe facts are as follows: On 19 March 1994 Mary Catherine Trapp (Mrs. Trapp) was evaluated by Kenneth Zeitler, M.D., a physician at Wake Medical Center who recommended a medical procedure called plasmapheresis. Mrs. Trapp was transferred to Rex Hospital where the plasmapheresis procedure was to be performed. In preparing for plasmapheresis, a catheter or hollow plastic tubing is inserted into a vein in the body. This procedure to insert the tubing is called \u201ccentral venous access\u201d or inserting a \u201ccentral venous line.\u201d On the afternoon of 19 March 1994, the defendant, an anesthesiologist, attempted central venous access into Mrs. Trapp\u2019s internal jugular vein on the right side of her neck and was unsuccessful in that location but did succeed elsewhere. A hemotoma developed on Mrs. Trapp\u2019s neck and led to further complications which resulted in her death. The plaintiff is the duly qualified administrator of the estate of Mrs. Trapp.\nIn his complaint, the plaintiff alleged, among other things, that the medical care complained of had \u201cbeen reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care\u201d in accordance with Rule 9(j) of our Rules of Civil Procedure. In answer to the defendant\u2019s interrogatories the plaintiff responded that George Podgomy, M.D. (Dr. Podgomy), a licensed physician who is board certified in surgery and specializes in emergency care, had reviewed (prior to the filing of the complaint) the standard of care given to Mrs. Trapp in June of 1994.\nAt his deposition, Dr. Podgorny testified that he was not board certified in anesthesia or critical care and had no anesthesia training in a residency program. He stated that he, as an emergency medicine specialist, had been the \u201cphysician involved in inserting a central venous line\u201d within the past year and that emergency medicine specialists did perform central venous access. He did not know if the central venous accesses he had performed were done specifically on patients who were to then undergo plasmapheresis. According to Dr. Podgomy, surgeons were the most likely to perform central venous access because it was considered a \u201csurgical type activity.\u201d He further stated that a central venous access is a \u201cprocedure\u201d and that it \u201cis not driven by what is the treatment later on. The procedure is the same.\u201d Dr. Podgomy admitted that he had no information as \u201cto the specific requirements with regard to central line access for a patient undergoing plasmapheresis\u201d and \u201cany opinion as to the interplay between the type of central line access which is required for plasmapheresis of a patient [was] something outside of [his] speciality.\u201d\nThe defendant filed a motion to dismiss, pursuant to Rule 9(j), alleging that the plaintiff had \u201cfailed to identify any physician who practices within the same specialty as [the defendant], as required by Rule 702.\u201d In dismissing the complaint, the trial court found, among other things, the following:\n(3) That emergency medicine and trauma is not a practice of medicine similar to anesthesiology and does not include the performance of the procedure complained of in the complaint, specifically the insertion of a central venous line catheter in a patient who is to undergo plasmapheresis;\n(4) That Dr. George Podgorny has had no prior experience treating patients with plasmapheresis; nor has he had any experience inserting the plasmapheresis catheter;\n(5) That the health care services at issue in this case include the insertion of a central line catheter for the purpose of plasmapheresis;\n(6) That the interplay between the type of central line access which is required for plasmapheresis of the patient is outside Dr. George Podgomy\u2019s particular specialty;\n(12) That plaintiff made certification in the complaint, pursuant to Rule 9Q), that the medical care complained of had been reviewed by a qualified expert when there was no such qualified expert.\nThe trial court concluded \u201cas a matter of law that Dr. George Podgorny could not be reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence.\u201d\nThe issue is whether Dr. Podgorny could reasonably be expected to be an expert witness qualified, pursuant to Rule 702, to testify in this medical malpractice action.\nRule 9(j) of the North Carolina Rules of Civil Procedure requires any complaint alleging medical malpractice by a health care provider to specifically assert that the \u201cmedical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and that [the expert] is willing to testify that the medical care did not comply with the applicable standard of care.\u201d N.C.G.S. \u00a7 1A-1, Rule 9(j) (Supp. 1997). The failure to so certify requires the trial court to dismiss the action. Id.\nRule 702 of our Rules of Evidence provides in pertinent part that:\n[A] person shall not give expert testimony on the appropriate standard of health care . . . unless the person is a licensed health care provider . . . and meets the following criteria:\n(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:\na. Specialize in the same specialty as the party against whom . . . the testimony is offered or\nb. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.\nN.C.G.S. \u00a7 8C-1, Rule 702(b)(1) (Supp. 1997).\nA person can qualify as an expert under either Rule 702(b)(1)(a) or 702(b)(1)(b). In this case, Dr. Podgorny did not specialize in \u201cthe same specialty\u201d as the defendant and thus did not qualify as an expert witness under Rule 702(b)(1)(a). Dr. Podgorny is an emergency medicine specialist and the defendant is an anesthesiologist.\nRule 702(b)(1)(b) is subdivided into two parts: (1) does the witness \u201cspecialize in a similar speciality\u201d which includes \u201cthe performance of the procedure that is the subject of the complaint,\u201d and if so, (2) does the witness \u201chave prior experience treating similar patients.\u201d The evidence before the trial court reveals that the practice of emergency medicine is a speciality \u201csimilar\u201d to the practice of anesthesiology, in that both practices include the performance of central venous accesses. It is the contention of the defendant that Dr. Podgorny nonetheless does not satisfy the requirements of Rule 702(b)(1)(b) because the \u201cprocedure that is the subject of the complaint\u201d is a central venous access for the specific purpose of plasma-pheresis and that Dr. Podgorny admitted that he did not know the standard of care for this type of procedure. The plaintiff contends that cental venous access is a procedure that is not driven by the treatment that is to follow. Indeed, there is evidence in the record to support that conclusion. The trial court resolved this dispute by determining that there is an interplay between cental venous access and the subsequent treatment of the patient. It therefore follows, the defendant argues, that the plaintiff failed to show that Dr. Podgorny\u2019s speciality included \u201cthe performance of the procedure that is the subject of the complaint.\u201d\nWithout resolving the question of whether Dr. Podgorny, based on this record, qualifies as an expert under Rule 702(b)(1)(b), and assuming, as the trial court determined, that he does not, the order of the trial court dismissing the complaint must nonetheless be reversed. The disqualification of a Rule 9(j) witness under Rule 702 does not necessarily require the dismissal of the pleadings. The question under Rule 9(j) instead is whether it was \u201creasonably expected\u201d that the witness would qualify under Rule 702. In other words, were the facts and circumstances known or those which should have been known to the pleader such as to cause a reasonable person to believe that the witness would qualify as an expert under Rule 702. See Black\u2019s Law Dictionary 1265 (6th ed. 1990) (defining reasonable belief).\nIn this case, although the trial court ultimately resolved the Rule 702 issue against the plaintiff, there is ample evidence in this record that a reasonable person armed with the knowledge of the plaintiff at the time the pleading was filed would have believed that Dr. Podgorny would have qualified as an expert under Rule 702.\nReversed and remanded.\nJudges WALKER and TIMMONS-GOODSON concur.\n. In general terms, Rule 702 also requires that the expert witness \u201cmust have devoted [during the year immediately before the occurrence that is the basis of the action] a majority of his or her professional time to either\u201d a clinical practice of the same health profession as the defendant or the instruction of students in the same health profession as the defendant. N.C.G.S. \u00a7 8C-1, Rule 702(b)(2). Because resolution of this case does not require that we address this subsection, we do not do so.\n. Whether the pleader could reasonably expect the witness to qualify as an expert under Rule 702 presents a question of law and is therefore reviewable de novo by this Court. This is so because resolution of this issue requires application of legal principles. See State v. Chaplin, 122 N.C. App. 659, 664, 471 S.E.2d 653, 656 (1996).",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Douglass & Douglass, by Thomas G. Douglass, for plaintiff appellant.",
      "Patterson, Dilthy, Clay & Bryson, L.L.P., by Robert M. Clay, Mark E. Anderson, and Claire A. Modlin, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "EDWARD LEE TRAPP, Administrator of the Estate of MARY CATHERINE TRAPP, Deceased, Plaintiff v. GERALD A. MACCIOLI, M.D., Defendant\nNo. COA97-720\n(Filed 7 April 1998)\nPleadings \u00a7 70 (NCI4th)\u2014 complaint \u2014 medical malpractice\u2014 witness within same specialty\nA trial court erred by dismissing a medical malpractice complaint pursuant to N.C.G.S. \u00a7 1A-1, Rule 9(j) because the named witness could not reasonably be expected to qualify as an expert under N.C.G.S. \u00a7 8C-1, Rule 702 where the procedure involved was a central venous access preparatory to plasmapheresis, defendant is an anesthesiologist, the witness named in accordance with N.C.G.S. \u00a7 1A-1, Rule 9(j) is an emergency medicine specialist, the witness testified that he had been involved in inserting a central venous line and that that procedure was independent of the plasmapheresis procedure, and the trial court concluded that the witness could not be reasonably expected to qualify as an expert under N.C.G.S. \u00a7 8C-1, Rule 702. The disqualification of a Rule 9(j) witness under Rule 702 does not necessarily require dismissal of the pleadings; there is ample evidence in this record that a reasonable person armed with the knowledge of the plaintiff at the time of the pleading would have believed that the witness would have qualified as an expert under Rule 702.\nAppeal by plaintiff from order filed 7 March 1997 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 17 February 1998.\nDouglass & Douglass, by Thomas G. Douglass, for plaintiff appellant.\nPatterson, Dilthy, Clay & Bryson, L.L.P., by Robert M. Clay, Mark E. Anderson, and Claire A. Modlin, for defendant appellee."
  },
  "file_name": "0237-01",
  "first_page_order": 277,
  "last_page_order": 281
}