{ "id": 9439655, "name": "JESSICA ELAINE EDWARDS, a minor child by and through SUSAN F. EDWARDS, her Guardian Ad Litem, and SUSAN F. EDWARDS, individually, Plaintiff-Appellants v. STEPHEN WALL, LUCY DOWNEY, and HAYWOOD PEDIATRIC AND ADOLESCENT MEDICINE GROUP, P.A., Defendant-Appellees", "name_abbreviation": "Edwards ex rel. Edwards v. Wall", "decision_date": "2001-02-06", "docket_number": "No. COA99-1490", "first_page": "111", "last_page": "120", "citations": [ { "type": "official", "cite": "142 N.C. App. 111" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "292 N.W. 2d 535", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1980, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "381 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "325 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491380 ], "year": 1989, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0152-01" ] }, { "cite": "372 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "345", "parenthetical": "allegation of error in interpreting statute is an allegation of an error of law" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525947 ], "year": 1988, "pin_cites": [ { "page": "463", "parenthetical": "allegation of error in interpreting statute is an allegation of an error of law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0459-01" ] }, { "cite": "443 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "92", "parenthetical": "allegation that agency decision is based upon an error of law requires de novo review" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527957 ], "year": 1994, "pin_cites": [ { "page": "716", "parenthetical": "allegation that agency decision is based upon an error of law requires de novo review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0711-01" ] }, { "cite": "515 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571529, 571604, 571668 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0360-03", "/nc/349/0360-02", "/nc/349/0360-01" ] }, { "cite": "313 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526434 ], "year": 1984, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0359-01" ] }, { "cite": "500 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 476", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651075 ], "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0476-01" ] }, { "cite": "535 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684920 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0669-01" ] }, { "cite": "518 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145881 ], "year": 1999, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0533-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "530 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "98" }, { "page": "99-100" }, { "page": "101", "parenthetical": "citation omitted" }, { "page": "103", "parenthetical": "quoting 2 J.E. Schmidt, Attorney's Dictionary of Medicine C-310 (1999)" }, { "page": "102" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079870 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "383" }, { "page": "385" }, { "page": "387" }, { "page": "391" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0381-01" ] }, { "cite": "543 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155971, 1155788, 1155685, 1155735 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0471-02", "/nc/351/0471-04", "/nc/351/0471-03", "/nc/351/0471-01" ] }, { "cite": "521 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241438 ], "year": 1999, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0463-01" ] } ], "analysis": { "cardinality": 808, "char_count": 22438, "ocr_confidence": 0.731, "pagerank": { "raw": 1.6989523529040083e-07, "percentile": 0.700482923907919 }, "sha256": "496c067ecb89db4473425385b5543cc1533e6503032fce128f69bc1284aa3fe8", "simhash": "1:274b837a7646ed56", "word_count": 3563 }, "last_updated": "2023-07-14T17:11:55.437222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HORTON concur." ], "parties": [ "JESSICA ELAINE EDWARDS, a minor child by and through SUSAN F. EDWARDS, her Guardian Ad Litem, and SUSAN F. EDWARDS, individually, Plaintiff-Appellants v. STEPHEN WALL, LUCY DOWNEY, and HAYWOOD PEDIATRIC AND ADOLESCENT MEDICINE GROUP, P.A., Defendant-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiffs appeal from the trial court\u2019s directed verdict entered pursuant to Rule 50 of the North Carolina Rules of Civil Procedure. The trial court determined defendants were entitled to judgment as a matter of law because of plaintiffs\u2019 failure to offer any competent evidence that defendants had violated the standard of care. We disagree.\nDefendants Stephen Wall and Lucy Downey are physicians practicing as pediatricians at Haywood Pediatric and Adolescent Medicine Group, P.A., in Haywood County, North Carolina (hereinafter defendants). Jessica Elaine Edwards (Jessica), a minor child, was a regular patient of defendants since her birth on 8 June 1991. Plaintiffs allege in their complaint that on 13 July 1997 Jessica suffered from stomach pain, vomiting and fever. The next day, Susan F. Edwards (Jessica\u2019s mother), telephoned defendants about Jessica\u2019s symptoms. Jessica was examined at defendants\u2019 office on 16 July 1997, and after an examination which included taking a blood sample, defendants told Jessica\u2019s mother to go directly to the hospital for Jessica to be admitted.\nDefendants\u2019 admitting diagnosis for Jessica was dehydration and gastroenteritis. Defendants discharged Jessica from the hospital on 17 July 1997, despite her continued abdominal pain and her mother\u2019s request to determine if Jessica had appendicitis. On 18 July 1997, Jessica again returned to defendants\u2019 office with stomach pains. Jessica and her mother were told by defendants to go immediately to the hospital emergency room. Upon Jessica\u2019s admission to the hospital, it was determined that her appendix had ruptured and emergency surgery was performed by a non-defendant doctor to repair the damage caused by the ruptured appendix. Jessica\u2019s mother testified that Jessica required additional surgery and medical treatments for problems caused by the ruptured appendix.\nPlaintiffs filed a complaint on 2 January 1998 alleging defendants failed to diagnose and treat Jessica\u2019s acute appendicitis prior to the rupture of the appendix. Defendants answered and denied plaintiffs\u2019 allegations of negligence on 30 January 1998. Prior to trial, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 26(4), plaintiffs designated Dr. Marvin E. Ament (Dr. Ament) as an expert witness in pediatrics, who would testify as to defendants\u2019 breaches of the standard of medical care that caused Jessica\u2019s continuing injuries. Defendants designated three experts who, upon review of the medical records and pleadings, were to testify that the care rendered by defendants was in accordance to the standard of practice required by law.\nPlaintiffs called Dr. Ament as a witness at trial and following direct examination of Dr. Ament as to his medical qualifications, plaintiffs tendered him as an expert in pediatrics and pediatric gas-troenterology. Defendants requested a voir dire examination of Dr. Ament concerning his qualifications as an expert witness. After both parties questioned Dr. Ament and following extensive discussion with the trial court, the trial court ruled that plaintiffs\u2019 expert witness, Dr. Ament, was not qualified to testify as an expert under Rule 702 of the North Carolina Rules of Evidence. Defendants moved for and were granted a directed verdict by the trial court. Plaintiffs appeal.\nPlaintiffs argue that the trial court erred in its interpretation of the language of N.C. Gen. Stat. \u00a7 8C-1, Rule 702(b)(2), relating to the admissibility of expert testimony, when it determined that Dr. Ament did not qualify as an expert witness. The General Assembly amended Rule 702 in 1995, with the amendment effective 1 January 1996. The amended rule added several provisions relating specifically to the qualifications of an expert witness testifying to the appropriate standard of care in medical malpractice actions. See Andrews v. Carr, 135 N.C. App. 463, 469, 521 S.E.2d 269, 273 (1999), disc. review denied, 351 N.C. 471, 543 S.E.2d 483 (2000). \u201cRule 702(b)(1) governs expert testimony on the \u2018appropriate standard of health care\u2019 offered against or on behalf of a \u2018specialist[.]\u2019 \u201d Formyduval v. Bunn, 138 N.C. App. 381, 383, 530 S.E.2d 96, 98 (2000).\nIn a medical malpractice action, as defined in N.C. Gen. Stat. \u00a7 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in N.C. Gen. Stat. \u00a7 90-21.12 unless that person is a licensed health care provider in this State or another state who 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:\n(a) Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or\n(b) 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.\n(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:\n(a) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar speciality which includes within its speciality the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or\n(b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702(b)(l)(2) (1999). Therefore, in order to qualify as an expert to testify as to defendants\u2019 applicable standard of care as specialists, plaintiffs\u2019 expert must be \u201cin the same specialty\u201d as defendant pediatricians or \u201cspecialize in a similar specialty which includes . . . the performance of the procedure that is the subject of the complaint.\u201d Id. In addition, plaintiffs\u2019 expert must, during the year preceding July 1997, have: (1) devoted a majority of \u201cprofessional time\u201d (2) to \u201cactive clinical practice\u201d of \u201cthe same or similar specialty\u201d or (3) to \u201cthe instruction of students ... in the same specialty.\u201d Id. All the statutory requirements must be met in order for the witness to be qualified as an expert witness and be allowed to testify.\nPlaintiffs contend that our Court\u2019s standard of review on appeal is de novo but defendants argue the standard of review is abuse of discretion by the trial court. This issue involves an interpretation of N.C.G.S. \u00a7 8C-1, Rule 702 by the trial court. \u201cOrdinarily, whether a witness qualifies as an expert is exclusively within the discretion of the trial judge[.]\u201d State v. Underwood, 134 N.C. App. 533, 541, 518 S.E.2d 231, 238 (1999), cert. improvidently allowed, 352 N.C. 669, 535 S.E.2d 33 (2000). However, \u201c[w]here an appeal presents questions of statutory interpretation, full review is appropriate, and [a trial court\u2019s] \u2018conclusions of law are reviewable de novo. \u2019 \u2019\u2019Mark IV Beverage, Inc. v. Molson Breweries USA, 129 N.C. App. 476, 480, 500 S.E.2d 439, 442 (quoting N.C. Reinsurance Facility v. N.C. Insurance Guaranty Assn., 67 N.C. App. 359, 362, 313 S.E.2d 253, 256 (1984)), disc. review denied, 349 N.C. 360, 515 S.E.2d 705 (1998); see also Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716, 443 S.E.2d 89, 92 (1994) (allegation that agency decision is based upon an error of law requires de novo review); Brooks, Comm\u2019r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 345 (1988) (allegation of error in interpreting statute is an allegation of an error of law).\nDe novo review is appropriate as plaintiffs contend that the trial court\u2019s decision was based on an incorrect interpretation of Rule 702(b)(2), specifically as to the trial court\u2019s interpretation of the terms \u201cspecialty\u201d and/or \u201csimilar practice\u201d and \u201cactive clinical practice.\u201d See Formyduval, 138 N.C. App. at 385, 530 S.E.2d. at 99-100. In addition, plaintiffs assert that the trial court misinterpreted the term \u201ceither or both\u201d in subsection 2, inserted the word \u201cand\u201d between subsection 2a and 2b, and erred in interpreting the term \u201chealth profession\u201d and the term \u201ceither or both.\u201d We must determine (1) whether the trial court\u2019s conclusions of law support its judgment or determination, (2) whether the trial court\u2019s conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by sufficient evidence. Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).\nBy its terms, Rule 702(b) applies to all medical malpractice actions against any \u201chealth care provider.\u201d See N.C.G.S. \u00a7 90-21.11 (1999). Section (b)(2)(a) of Rule 702 requires expert witnesses to have engaged in \u201cactive clinical practice of the same health profession\u201d as the defendant, or, if the defendant is a specialist, in \u201cactive clinical practice of the same specialty\u201d as the defendant. Thus, section (b) of Rule 702 applies to defendants in the case before us, who are physicians specializing in pediatrics. \u201c \u2018Specialist\u2019 is defined as a \u2018physician whose practice is limited to a particular branch of medicine or surgery, [especially] one certified by a board of physicians.\u2019 \u201d Formyduval, 138 N.C. App. at 387, 530 S.E.2d at 101 (citation omitted); see also 5 J.E. Schmidt, Attorney\u2019s Dictionary of Medicine S-219 (1999) (defining specialist as a \u201cmedical practitioner who limits his practice to certain diseases ...; a person who is a dipl\u00f3mate of one of the specialty boards\u201d). It is uncontested that defendants are specialists in the field of pediatric medicine.\nPlaintiffs argue that Dr. Ament is qualified as an expert in pediatric medicine under Rule 702(b)(2) in four different ways: he spends a majority of his time (1) in the active clinical practice of the same specialty as defendants, (2) in a similar specialty which includes within its specialty the procedure that is the subject matter of plaintiffs\u2019 complaint, (3) in instructing medical students in a clinical setting, and (4) in combination of active clinical practice of pediatrics and in the instruction of medical students.\nDr. Ament is certified by the American Board of Pediatrics and is therefore certified in the same specialty as defendants. Having the same certification meets the first prong of Rule 702(b)(1) requiring that the expert \u201cspecialize in the same specialty\u201d as defendants. Dr. Ament is also certified in the subspecialty of pediatric gastroen-terology. It is Dr. Ament\u2019s certification in, and practice of, the subspecialty pediatric gastroenterology, that the trial court and defendants contend results in Dr. Ament not being qualified to testify in this case.\nThe trial court\u2019s findings of fact included that defendants\u2019 medical practice is in \u201cthe general practice of pediatrics\u201d and that Dr. Ament, as a professor at the UCLA Medical School, \u201cis a specialist specializing in the field of pediatric gastroenterology[.]\u201d Therefore, the trial court concluded that plaintiffs\u2019 expert \u201cis not a practitioner of general pediatrics as are the defendants[.]\u201d The trial court determined that Dr. Ament failed the first prong of Rule 702(b)(1). Dr. Ament testified that he is \u201ca distinguished professor of pediatrics in the Department of Pediatrics at the University of California.\u201d Dr. Ament\u2019s testimony and his curriculum vitae show that he has been certified as a pediatrician since 1968. Hence, we conclude that plaintiffs\u2019 expert is a specialist in pediatrics and as such is qualified to testify in this case.\nThe trial court next determined that although Dr. Ament was a board certified pediatrician, the majority of his practice was in pediatric gastroenterology, which did not \u201cinclude the [active clinical] practice of the type of medicine engaged in by the defendants[.]\u201d Under the trial court\u2019s interpretation of active clinical practice, Dr. Ament fails the \u201cactive clinical practice of the same specialty\u201d requirement of Rule 702(b)(2)(a). First, we note that Rule 702(b)(2)(a) also includes the language that the expert can be in the active clinical practice of the same specialty \u201cor 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[.]\u201d N.C.G.S. \u00a7 8C-1, 702(b)(2)(a) (emphasis added). The trial court did not address this language of Rule 702 and did not allow plaintiffs to make an offer of proof as to Dr. Ament\u2019s familiarity with the procedure of diagnosing appendicitis in children and his experience in treating similar patients. This evidence is admissible under Rule 702(b)(2)(a). Plaintiffs\u2019 expert, Dr. Ament, a pediatrician who practices the subspecialty of pediatric gastroen-terology, clearly may have practiced a similar specialty that included the procedure of diagnosing appendicitis in a child and have prior experience in this diagnosis. It appears that Dr. Ament is the type of expert that the language of Rule 702(b)(2)(a) meant to include in the definition of active clinical practice.\nAs to the trial court\u2019s finding that plaintiffs\u2019 expert did not have an active clinical practice in the same specialty, a close examination of the record verifies that Dr. Ament testified that he actively saw pediatric patients three times per week at the university hospital\u2019s clinic. Twenty-five to fifty of those patients were return visits, with six to ten patients being new. \u201cClinical is defined as \u2018based on or pertaining to actual experience in the observation and treatment of patients.\u2019 \u201d Formyduval, 138 N.C. App. at 391, 530 S.E.2d at 103 (quoting 2 J.E. Schmidt, Attorney\u2019s Dictionary of Medicine C-310 (1999)). Considering the volume of patients that Dr. Ament sees at the UCLA Medical Center and in additional clinics in the Los Angeles area where he treats patients, we hold he is involved in an active clinical practice.\nDr. Ament was asked on voir dire if he spent the majority of his time as a physician in the same clinical practice as the defendants and Dr. Ament replied \u201cNo.\u201d However, Dr. Ament later stated in his testimony that although his practice emphasized gastroenterology in children, \u201cit\u2019s all pediatrics ... I deal with general pediatric problems in my chronic patients\u201d and he agreed that the majority of his clinical practice was in pediatrics. Dr. Ament then clarified that although he works at a medical center and defendants work in a medical office, both he and defendants have an active clinical practice in the specialty of pediatrics.\nWe have found no case law in this state holding that Rule 702 requires that the physician expert and the physician defendant work in exactly the same practice setting, as contended by defendants. Similarly, Rule 702 does not require that a physician, who specializes in pediatrics, be prepared to prove the percentages of each type of ailment that he treats within his practice. In the present case, Dr. Ament is a pediatrician who diagnoses \u201cgeneral pediatric problems\u201d in his gastroenterology patients in addition to treating children \u201cwith pure problems unrelated to the GI tract.\u201d Dr. Ament is a pediatrician with a subspecialty in pediatric gastroenterology who has an active clinical practice at a medical center. Defendants are pediatricians with no subspecialty who have an active clinical practice in a medical office. We agree with plaintiffs that Dr. Ament qualifies as an expert under Rule 702(b)(2)(a) in that he has an \u201cactive clinical practice of the same specialty [pediatrics] or a similar specialty [subspecialty of pediatric gastroenterology] which includes within its specialty the performance that is the subject of the complaint [diagnosing pediatric appendicitis] and ha[s] prior experience treating similar patients [children].\u201d\nDr. Ament is not a private physician but works exclusively as a professor of pediatrics at the UCLA Medical School. As a teaching physician in the UCLA Medical Clinic, Dr. Ament treats children with gastroentological problems who are referred to him by clinic pediatricians. In addition, Dr. Ament also testified that for a third of the patients he is their \u201cprimary pediatrician as well as being the gas-troenterologist.\u201d As a pediatrician, Dr. Ament also diagnoses the basic childhood diseases of his gastroenterology patients. We agree with plaintiffs that the fact Dr. Ament treats gastroenterologic problems does not mean that his clinical time is not in the field of pediatrics. The trial court found that because Dr. Ament\u2019s active clinical practice included a subspecialty of pediatrics that he could not be qualified to testify regarding defendants who did not have an active practice in the same subspecialty. We hold that although plaintiffs\u2019 expert has an active subspecialty practice in pediatric gastroenterology, this does not disqualify him as a pediatrician who would know the standard of care for diagnosing appendicitis.\nFurther, the trial court concluded that plaintiffs\u2019 expert did \u201cnot spend the majority of his time teaching,\u201d causing him to fail the third prong of Rule 702(b), that allows \u201cthe instruction of students in an accredited health professional school ... in the same specialty,\u201d as evidence of the expert\u2019s qualifications to testify.\nDr. Ament became an assistant professor of pediatrics in 1973 and since 1989 has been a distinguished professor of pediatrics at the UCLA Medical School. Dr. Ament testified that UCLA Medical Center is an accredited health professional school. It appears from the record that Dr. Ament understood that the definition of \u201cteaching medical students\u201d meant \u201cthe formal part [of] giving lectures, which you think of as schooling\u201d and testified he gave a formal lecture about once a month. This testimony, taken alone, disqualified Dr. Ament under the third prong of Rule 702(b)(2)(b). However, Dr. Ament clarified that while treating patients at the UCLA Medical Center, he was attended by residents, fellows and students. Dr. Ament therefore concurred that he spends the \u201cmajority of [his] professional working hours ... in the active clinical and/or teaching roles ... in pediatric medicine[.]\u201d This evidence clearly supports plaintiffs\u2019 qualification of Dr. Ament as an expert under the requirements of Rule 702(b)(2).\nWe note that Rule 702(c), regarding expert testimony and a general practitioner defendant, allows only general practitioners to testify against general practitioners. Specialists, such as pediatricians, may only testify against other pediatrician specialists. Thus, if defendants held themselves out to be general practitioners, then Dr. Ament as a pediatrician with a subspecialty in pediatric gastroen-terology would not qualify as an expert to testify. \u201cAs stated by another court, this rule \u2018is designed to protect the defendant [a general practitioner] from being compared with the higher standard of care required from one who holds himself out as an expert in the field.\u2019 \u201d Formyduval, 138 N.C. App. at 390, 530 S.E.2d at 102 (quoting Moore v. Foster, 292 N.W. 2d 535, 538 (Mich. Ct. App. 1980)).\nDefendants in this case practice in the specialty of pediatrics. The evidence of record supports that plaintiffs\u2019 expert, Dr. Ament, was qualified as an expert witness by a combination of his clinical practice and teaching in the same or similar specialty as practiced by defendants. Defendants are alleged to have failed a proper diagnosis of abdominal complaints. As required by Rule 702(b)(2), Dr. Ament spends the majority of his time practicing and teaching pediatrics and pediatric gastroenterology, which includes the treatment of the stomach. Dr. Ament is therefore qualified to testify as to the standard of care applicable to defendants and their alleged mistaken diagnosis of gastroenteritis.\nWe need not discuss plaintiffs\u2019 other assignments of error as we reverse the trial court\u2019s decision disqualifying Dr. Ament to testify under Rule 702. Accordingly, we reverse the directed verdict of the trial court and remand for trial.\nReversed and remanded.\nJudges WALKER and HORTON concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Melrose, Seago & Lay, P.A., by Mark R. Melrose, for plaintiff - appellants.", "Northup & McConnell, P.L.L.C., by Isaac N. Northup, Jr., for defendant-appellees.", "Kennedy Covington Lobdell & Hickman, L.L.P., by James P. Cooney III, for the North Carolina Association of Defense Attorneys, amicus curiae.", "Jones Martin Parris & Tessener, PLLC, by Tamara R. Nance and John Alan Jones, for the North Carolina Academy of Trial Lawyers, amicus curiae." ], "corrections": "", "head_matter": "JESSICA ELAINE EDWARDS, a minor child by and through SUSAN F. EDWARDS, her Guardian Ad Litem, and SUSAN F. EDWARDS, individually, Plaintiff-Appellants v. STEPHEN WALL, LUCY DOWNEY, and HAYWOOD PEDIATRIC AND ADOLESCENT MEDICINE GROUP, P.A., Defendant-Appellees\nNo. COA99-1490\n(Filed 6 February 2001)\n1. Witnesses\u2014 expert \u2014 qualification\u2014review\nAlthough the question of whether a witness qualifies as an expert is exclusively within the discretion of the trial court, review of whether a pediatric gastroenterologist should have been allowed to testify against general practice pediatricians involved interpretation of N.C.G.S. \u00a7 8C-1, Rule 702(b)(2) and review was de novo.\n2. Medical Malpractice\u2014 expert witness \u2014 same field of specialization\nThe trial court erred in a medical malpractice action by ruling that plaintiff\u2019s expert witness was not qualified under N.C.G.S. \u00a7 8C-1, Rule 702 where defendants were general practice pediatricians and the witness was certified in the subspecialty of pediatric gastroenterology and a professor at UCLA. Defendants are alleged to have failed to make a proper diagnosis of abdominal complaints and, as required by N.C.G.S. \u00a7 8C-1, Rule 702(b)(2), the witness spends the majority of his time practicing and teaching pediatrics and pediatric gastroenterology, which includes the treatment of the stomach.\nAppeal by plaintiffs from order entered 22 July 1999 by Judge Zoro J. Guice, Jr. in Haywood County Superior Court. Heard in the Court of Appeals 19 October 2000.\nMelrose, Seago & Lay, P.A., by Mark R. Melrose, for plaintiff - appellants.\nNorthup & McConnell, P.L.L.C., by Isaac N. Northup, Jr., for defendant-appellees.\nKennedy Covington Lobdell & Hickman, L.L.P., by James P. Cooney III, for the North Carolina Association of Defense Attorneys, amicus curiae.\nJones Martin Parris & Tessener, PLLC, by Tamara R. Nance and John Alan Jones, for the North Carolina Academy of Trial Lawyers, amicus curiae." }, "file_name": "0111-01", "first_page_order": 141, "last_page_order": 150 }