{
  "id": 8210914,
  "name": "PHILLIP SMITH, Plaintiff-Appellant v. ROBERT JOHN SERRO, M.D., CAROLINA REHABILITATION & SURGICAL ASSOCIATES, P.A., Defendant-Appellee",
  "name_abbreviation": "Smith v. Serro",
  "decision_date": "2007-08-21",
  "docket_number": "No. COA06-1427",
  "first_page": "524",
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          "page": "711",
          "parenthetical": "\"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 'reasonably expected' that the witness would qualify under Rule 702.\""
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          "page": "710"
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          "page": "711"
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      "year": 1998,
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          "page": "241",
          "parenthetical": "\"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 'reasonably expected' that the witness would qualify under Rule 702.\""
        },
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          "page": "240"
        }
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2002,
      "pin_cites": [
        {
          "page": "603",
          "parenthetical": "citation omitted"
        }
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    {
      "cite": "155 N.C. App. 372",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 2002,
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  "last_updated": "2023-07-14T20:04:26.584781+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges HUNTER and GEER concur."
    ],
    "parties": [
      "PHILLIP SMITH, Plaintiff-Appellant v. ROBERT JOHN SERRO, M.D., CAROLINA REHABILITATION & SURGICAL ASSOCIATES, P.A., Defendant-Appellee"
    ],
    "opinions": [
      {
        "text": "ELMORE, Judge.\nOn 22 April 2002, Phillip Smith (plaintiff) suffered brain damage as a result of bleeding in his brain. On 16 May 2002, he was admitted to the Bryant T. Aldridge Rehabilitation Center (the Center), where he received inpatient services under Dr. Robert John Serro\u2019s care. On 27 June 2002, Dr. Serr\u00f3 discharged plaintiff from the Center\u2019s inpatient services to a retirement home. Plaintiff took part in the Center\u2019s Bridge Program, an outpatient rehabilitation program. During this time, he continued to receive treatment from Dr. Serr\u00f3 as part of his participation in the Bridge Program.\nOn 11 July 2002, plaintiff took part in a bowling outing organized by the Bridge Program. During the outing, plaintiff fell and fractured his hip.\nOn 11 July 2005, plaintiff filed suit against Dr. Serr\u00f3, Carolina Rehabilitation, and Nash Health Care Systems. He alleged negligence, and stated that he reasonably expected Dr. Eduardo Marsigli to qualify as an expert witness in the case.\nOn 28 November 2005, Carolina Rehabilitation, joined by Dr. Serr\u00f3, moved to dismiss and for summary judgment, alleging that plaintiff failed to file within the applicable statute of limitations, and, in the alternative, that plaintiff failed to identify a qualifying expert to testify as to the standard of care. On 29 March 2006, the trial court entered an order and involuntary dismissal with prejudice, holding that \u201cDr. Marsigli is and was not reasonably expected to qualify as an expert witness . . . .\u201d Plaintiff now appeals.\nPlaintiff contends that the trial court erred in holding that he failed to comply with Rule 9(j) of our Rules of Civil Procedure. Rule 9(j) reads, in pertinent part:\nMedical malpractice. \u2014 Any complaint alleging medical malpractice by a health care provider ... in failing to comply with the applicable standard of care . . . shall be dismissed unless:\n(1) The pleading specifically asserts that the medical 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 who is willing to testify that the medical care did not comply with the applicable standard of care ....\nN.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2005).\nThe pertinent section of Rule 702 of our Rules of Evidence reads:\n(b) In a medical malpractice action as defined in G.S. 90-21.11, 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 is a licensed health care provider in this State or another state 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 or on whose behalf 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.\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:\na. 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 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; or\nb. 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) (2005).\nAt the outset, we must determine the proper standard of review. We agree with plaintiff that our review of Rule 9(j) compliance is de novo, because such compliance \u201cclearly presents a question of law . . . .\u2019\u2019 Phillips v. Triangle Women\u2019s Health Clinic, Inc., 155 N.C. App. 372, 376, 573 S.E.2d 600, 603 (2002) (citation omitted). Moreover, we note that the question properly before this Court is whether Dr. Marsigli was \u201creasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence,\u201d not whether he did, in fact, qualify. N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j)(l) (2005) (emphasis added). See Trapp v. Maccioli, 129 N.C. App. 237, 241, 497 S.E.2d 708, 711 (1998) (\u201cThe 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 \u2018reasonably expected\u2019 that the witness would qualify under Rule 702.\u201d).\nIn this case, however, it is clear that plaintiff could not reasonably have expected Dr. Marsigli to qualify as an expert under Rule 702. It is uncontroverted that Dr. Marsigli\u2019s specialty, orthopedic surgery, is not \u201cthe same specialty as [Dr. Serro\u2019s specialty, physical medicine and rehabilitation],\u201d nor is it \u201ca similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702(b)(l)b (2005).\nNevertheless, plaintiff suggests that we are bound by our decision in Trapp. As we have noted, the inquiry is the same in this case as in Trapp: We must determine whether it was \u201creasonably expected\u201d that Dr. Marsigli would qualify.\nContrary to plaintiff\u2019s assertion, however, the fact that the inquiry is the same does not mandate a similar result. This case is distinguishable on its facts. In Trapp, our analysis hinged on the procedure at issue. The plaintiff in that case underwent \u201ca central venous access for the specific purpose of plasmapheresis.\u201d Trapp, 129 N.C. App. at 240, 497 S.E.2d at 710. The plaintiffs expert in Trapp, an emergency medicine physician, worked in a specialty similar to that at issue in the case, anesthesiology. Further, the expert had performed central venous accesses, but not for the purpose of plasmapheresis. Although the plaintiff argued that the expert did not satisfy Rule 702(b)(l)(6), we held that on those facts, there was \u201cample 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 [the expert] would have qualified as an expert under Rule 702.\u201d Id. at 241, 497 S.E.2d at 711.\nIn this case, plaintiff contends that there is a question as to what procedure is the subject of the complaint. Plaintiff suggests that the trial court based its decision on Carolina Rehabilitation\u2019s framing of the procedure as \u201crehabilitation of the plaintiff after a cerebral vascular accident,\u201d and \u201crehabilitation of patients following brain injuries.\u201d Instead, plaintiff suggests, the trial court ought to have focused on plaintiff\u2019s complaint, which plaintiff alleges identified the following procedures: (1) rehabilitation from brain surgery and ataxia; (2) diagnosis of plaintiff\u2019s condition; and (3) treatment and care of plaintiff\u2019s condition. Plaintiff insists that \u201c [identification of the procedure is . . . significant because Dr. Marsigli\u2019s affidavit shows his experience as an orthopedic surgeon with spinal cord and brain injuries and with symptoms Plaintiff suffered, \u2018namely ataxia or a loss of coordination, which resulted from his brain injury.\u2019 \u201d\nHowever, we find the key phrase in plaintiff\u2019s assertion to be his reference to Dr. Marsigli\u2019s \u201cexperience as an orthopedic surgeon.\u201d Even accepting that plaintiff\u2019s characterization of the procedure is correct, and that Dr. Marsigli has experience with the types of injuries and symptoms that afflicted plaintiff, his experience is in the specialty of orthopedic surgery. As Dr. Christopher Godbout stated in his affidavit on Carolina Rehabilitation\u2019s behalf, Dr. Serro\u2019s specialty, physical medicine and rehabilitation, is completely distinct from Dr. Marsigli\u2019s specialty in orthopedic surgery.\nEven if Dr. Marsigli is \u201cfamiliar with the standard of care,\u201d as he claims to be, familiarity is not the same as \u201cthe active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702(b)(2)a (2005) (emphasis added). It is clear that Dr. Marsigli does not administer the kind of treatment that Dr. Serr\u00f3 provides; Dr. Marsigli referred plaintiff to Dr. Serr\u00f3 for rehabilitation after Dr. Marsigli treated plaintiff for his injuries.\nPlaintiff could have had no reasonable expectation that Dr. Marsigli would qualify as an expert in this case. Accordingly, the trial court did not err.\nPlaintiff\u2019s sole remaining contention is that the trial court erred in dismissing his complaint in its entirety, including what plaintiff characterizes as allegations of common law negligence. Because we can discern no legitimate allegations of common law negligence, we find plaintiffs argument unpersuasive.\nWhether an action is treated as a medical malpractice action or as a common law negligence action is determined by our statutes, which define a \u201c \u2018medical malpractice action\u2019 [as] a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.\u201d N.C. Gen. Stat. \u00a7 90-21.11 (2005).\nPlaintiff\u2019s contention that preventing plaintiff from participating in the bowling outing did not require \u201cspecialized knowledge or skill\u201d is clearly without merit. Rehabilitative outings constitute part of'the treatment prescribed by specialists such as Dr. Serr\u00f3. Determining whether a patient who is known to be at risk of falling should participate in such an activity is precisely the kind of professional judgment to which N.C. Gen. Stat. \u00a7 90-21.11 applies. Accordingly, this contention is without merit.\nHaving conducted a thorough review of the record, we find no error. Accordingly, we affirm the trial court\u2019s order.\nAffirmed.\nJudges HUNTER and GEER concur.\n. Dr. Marsigli, an orthopedic surgeon, treated plaintiffs fractured hip. Dr. Marsigli\u2019s son, Jeffrey Marsigli, served as plaintiffs trial counsel.\n. Ataxia is a side effect of plaintiff\u2019s brain surgery, \u201cwhich is defined as an inability to coordinate muscular movements.\u201d\n. Plaintiff abandoned his other argument, that Dr. Serr\u00f3 did not properly join in Carolina Rehabilitation\u2019s motion to dismiss and for summary judgment, in his reply brief.",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Wyrick Robbins Yates & Ponton LLP, by K. Edward, Greene and Adrienne E. Allison, for plaintiff-appellant.",
      "Harris, Creech, Ward and Blackerby, P.A., by Charles E. Simpson, Jr. and Jay C. Salsman, for defendant-appellee Robert John Serr\u00f3.",
      "Crawford & Crawford, LLP, by Renee B. Crawford and Robert O. Crawford III for defendant-appellee Carolina Rehabilitation & Surgical Associates, PA.",
      "North Carolina Association of Defense Attorneys, by Norman F. Klick, Jr. and Robert N. Young; Carruthers & Roth, P.A., Of Counsel, Amicus Curiae."
    ],
    "corrections": "",
    "head_matter": "PHILLIP SMITH, Plaintiff-Appellant v. ROBERT JOHN SERRO, M.D., CAROLINA REHABILITATION & SURGICAL ASSOCIATES, P.A., Defendant-Appellee\nNo. COA06-1427\n(Filed 21 August 2007)\n1. Medical Malpractice\u2014 Rule 9(j) certification \u2014 reasonable expectation expert would qualify\nA de novo review revealed that the trial court did not err in a medical malpractice case by holding that plaintiff failed to comply with N.C.G.S. \u00a7 1A-1, Rule 9(j), because: (1) plaintiff could not have reasonably expected the pertinent doctor to qualify as an expert under N.C.G.S. \u00a7 8C-1, Rule 702 when his specialty was not the same as defendant doctor nor is it a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint; and (2) familiarity is not the same as the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the pertinent procedure.\n2. Medical Malpractice\u2014 common law negligence \u2014 specialized knowledge or skill\nPlaintiff\u2019s complaint did not state a claim for common law negligence against defendant doctor which did not require a Rule 9(j) certification because plaintiff\u2019s contention that preventing plaintiff from participating in the bowling outing did not require specialized knowledge or skill is without merit since determining whether a patient who is known to be at risk of falling should participate in such an activity is precisely the kind of professional judgment to which N.C.G.S. \u00a7 90-21.11 applies.\nAppeal by plaintiff from judgment entered 29 March 2006 by Judge Clifton W. Everett, Jr. in Nash County Superior Court. Heard in the Court of Appeals 9 May 2007.\nWyrick Robbins Yates & Ponton LLP, by K. Edward, Greene and Adrienne E. Allison, for plaintiff-appellant.\nHarris, Creech, Ward and Blackerby, P.A., by Charles E. Simpson, Jr. and Jay C. Salsman, for defendant-appellee Robert John Serr\u00f3.\nCrawford & Crawford, LLP, by Renee B. Crawford and Robert O. Crawford III for defendant-appellee Carolina Rehabilitation & Surgical Associates, PA.\nNorth Carolina Association of Defense Attorneys, by Norman F. Klick, Jr. and Robert N. Young; Carruthers & Roth, P.A., Of Counsel, Amicus Curiae."
  },
  "file_name": "0524-01",
  "first_page_order": 556,
  "last_page_order": 561
}