{ "id": 4156716, "name": "VIOLET KERR, Plaintiff v. FRED LONG, JR., M.D., Defendant", "name_abbreviation": "Kerr v. Long", "decision_date": "2008-03-18", "docket_number": "No. COA07-916", "first_page": "331", "last_page": "338", "citations": [ { "type": "official", "cite": "189 N.C. App. 331" } ], "court": { "name_abbreviation": "N.C. Ct. 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App.", "case_ids": [ 8172925 ], "year": 2007, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0447-01" ] }, { "cite": "301 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561674, 8561770, 8561744, 8561717, 8561691 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0089-01", "/nc/301/0089-05", "/nc/301/0089-04", "/nc/301/0089-03", "/nc/301/0089-02" ] }, { "cite": "266 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552988 ], "year": 1980, "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0672-01" ] }, { "cite": "388 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "97 N.C. 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App. 191, 196, 619 S.E.2d 922, 925 (2005)" }, { "page": "385" }, { "page": "385", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/se2d/624/0380-01" ] }, { "cite": "615 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633352 ], "year": 2005, "pin_cites": [ { "page": "717", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/615/0715-01" ] }, { "cite": "623 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634600 ], "year": 2005, "pin_cites": [ { "page": "284" } ], "opinion_index": 1, "case_paths": [ "/se2d/623/0281-01" ] }, { "cite": "571 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "259", "parenthetical": "holding that experts may rely in part on internet research" } ], "opinion_index": 1 }, { "cite": "153 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. 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App. 191, 196, 619 S.E.2d 922, 925 (2005)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0474-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2007, "pin_cites": [ { "page": "480" } ], "opinion_index": 1 }, { "cite": "171 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8439559 ], "year": 2005, "pin_cites": [ { "page": "750", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/171/0748-01" ] }, { "cite": "175 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8349702 ], "year": 2005, "pin_cites": [ { "page": "26" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0022-01" ] } ], "analysis": { "cardinality": 826, "char_count": 18893, "ocr_confidence": 0.753, "pagerank": { "raw": 1.2713255184188697e-07, "percentile": 0.6148304399214009 }, "sha256": "b4e05e590897f74dd89f00a37951924c4108bceb19721a625be08431dbe4f29c", "simhash": "1:2fe8462a570f0fe3", "word_count": 3082 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs in the result in a separate opinion.", "Judge BRYANT concur." ], "parties": [ "VIOLET KERR, Plaintiff v. FRED LONG, JR., M.D., Defendant" ], "opinions": [ { "text": "JACKSON, Judge.\nViolet Kerr (\u201cplaintiff\u2019) appeals from the trial court\u2019s order entered 4 January 2007 granting a directed verdict in favor of Dr. Fred Long, Jr. (\u201cdefendant\u201d). For the following reasons, we affirm.\nOn 21 January 2003, plaintiff began experiencing pain in her gallbladder area and presented to the Emergency Department at WakeMed, complaining of a sharp, stabbing pain in her upper abdomen. Doctors at WakeMed performed several tests on plaintiff, noted an enlargement in her stomach area, and instructed her to seek further treatment.\nOn 24 January 2003, plaintiff presented to Dr. Quigless, complaining of severe abdominal pain. An ultrasound performed on 28 January 2003 indicated that plaintiff had gallstones. Dr. Quigless subsequently left the medical practice group, and defendant took over plaintiff\u2019s care with her consent.\nOn 31 January 2003, plaintiff presented to defendant, who explained to plaintiff the potential for gallbladder surgery. Defendant explained that although he would attempt laparoscopic cholecystectomy, the surgery could be converted to an open procedure. Plaintiff claimed that she could not remember defendant explaining to her that there could be reasons to convert the minimally-invasive laparoscopic procedure into a more invasive open procedure; however, she acknowledged that on 7 February 2003, she signed the \u201crequest for operation or other procedure,\u201d which expressly indicated that the procedure was a. laparoscopic cholecystectomy, \u201c[p]ossible open.\u201d Defendant also provided plaintiff with a pamphlet explaining the procedure and its risks, including the possibility of striking and injuring the common bile duct. At trial, plaintiff testified that she was \u201caware going into the procedure that one of the risks was an injury to the common bile duct.\u201d\nOn 8 February 2003, defendant performed gallbladder surgery on plaintiff at Wake Medical Hospital. Plaintiff testified that on 9 February 2003, defendant came into her room and stated that he had made a mistake. She also noticed at that time that there was \u201csome kind of J bag\u201d attached to her \u201cto keep the poison from going into [her] system.\u201d Plaintiff testified that defendant informed her that she would be sent to Chapel Hill. The same day, plaintiff was transferred to UNC Hospitals and seen by Dr. Behms. Plaintiff stated that Dr. Behrns attempted to repair her bile duct by hooking a part of her small intestines to the common bile duct. Plaintiff stated that she believed she would not be at UNC Hospitals for more than one night as a result of the procedure, but she remained at UNC Hospitals for five or six days.\nPlaintiff testified that in 2003, 2004, and 2005, she periodically felt tenderness at her surgical site, with a pulling, tearing pain on the right side. In 2006, plaintiff had a CT scan performed, which revealed the presence of \u201csomething kind of suspicious[,] . . . something they couldn\u2019t figure out.\u201d Plaintiff subsequently was sent to UNC Hospitals, where she presented to Dr. John Martinie (\u201cDr. Martinie\u201d) in February 2006. A colonoscopy performed on plaintiff was determined to be \u201cnormal.\u201d In March 2006, Dr. Martinie performed an exploratory laparoscopic procedure to identify what was revealed by the CT scan. Plaintiff acknowledged that \u201c[t]hey couldn\u2019t find anything that they saw on the 'CT [scan],\u201d and the procedure only revealed the presence of scar tissue. At a follow-up visit with Dr. Martinie, plaintiff stated that she \u201cstill had a little pull, but it wasn\u2019t as bad.\u201d Plaintiff has not returned to UNC Hospitals since that followup visit, and at trial, she described her current condition as a \u201cslight pulling pain.\u201d\nOn 29 December 2004, plaintiff filed a complaint alleging medical negligence against defendant and his employer, Premier Surgical Associates, PLLC (\u201cPremier\u201d). On 22 May 2006, plaintiff took a voluntary dismissal against Premier, and plaintiff\u2019s action against defendant proceeded to trial on 2 and 3 January 2007.\nAt trial, plaintiff sought to present the 16 May 2006 videotaped deposition of Dr. Mitchell M. Frost (\u201cDr. Frost\u201d). After hearing arguments of counsel and reviewing the record, the trial court ruled that, as a matter of law, Dr. Frost was not \u201ca competent expert witness to testify as to the standard of care of the question of medical negligence.\u201d Counsel for plaintiff stated that he did \u201cnot wish to have the other portion of the deposition [of Dr. Frost] presented to the jury.\u201d Counsel for plaintiff declined to call defendant, and stated that he had no further evidence. By order entered 4 January 2007, the court granted defendant\u2019s motion for a directed verdict, ruling that (1) Dr. Frost did not satisfy the requirements of an expert witness in a medical malpractice case; and (2) plaintiff failed to offer competent. testimony showing that defendant was negligent and, therefore, failed to meet her burden of proof. Thereafter, plaintiff gave timely notice of appeal.\nAs a preliminary matter, we note that defendant devotes seven pages of his brief to discussing and quoting from Dr. Martinie\u2019s videotaped deposition, which was played for the jury. The transcript of this deposition, however, was not included as part of the record on appeal. Pursuant to the North Carolina Rules of Appellate Procedure, our review is limited to the record on appeal, verbatim transcripts constituted in accordance with Rule 9, and any other items filed with the record in accordance with Rule 9(c) and 9(d). See N.C. R. App. P. 9(a) (2006). Here, the only transcripts constituted in accordance with Rule 9 and properly presented for review by this Court are those from the depositions of (1) Dr. Frost on 16 May 2006; (2) Dr. Frost on 15 December 2006; (3) Dr. Jerry Stirman, Jr. on 24 April 2006; and (4) defendant on 26 May 2005. Accordingly, we are unable to review the contents of Dr. Martinie\u2019s testimony in determining whether the trial court properly granted defendant\u2019s motion for directed verdict.\n\u201cThis Court reviews a trial court\u2019s grant \u00f3f a motion for directed verdict de novo.\u201d Herring v. Food Lion, LLC, 175 N.C. App. 22, 26, 623 S.E.2d 281, 284 (2005). Therefore, we must determine \u201cwhether, upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence [wa]s sufficient to be submitted to the jury.\u201d Brookshire v. N.C. Dep\u2019t of Transp., 180 N.C. App. 670, 672, 637 S.E.2d 902, 904 (2006) (internal quotation marks and citation omitted). \u201c \u2018When a defendant moves for a directed verdict in a medical malpractice case, the question raised is whether plaintiff has offered evidence of each of the following elements of his claim for relief: (1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages.\u2019 \u201d Pope v. Cumberland County Hosp. Sys., Inc., 171 N.C. App. 748, 750, 615 S.E.2d 715, 717 (2005) (quoting Fells v. Liberty Emergency Serv., 97 N.C. App. 381, 383, 388 S.E.2d 619, 620 (1990)).\nOn appeal, plaintiff contends 'that the trial court erred in excluding Dr. Frost\u2019s testimony as to the applicable standard of care. Specifically, plaintiff contends that \u201cDr. Frost was competent to testify as to the skill and technique that was required of [defendant], as the evidence, viewed in the light most favorable to [plaintiff], demonstrated that [plaintiff\u2019s expert witness qualified to testify as an expert in the case at bar.\u201d The trial court, however, based its order not only upon plaintiffs failure to satisfy her burden of presenting competent testimony showing that defendant breached the applicable standard of care but also that plaintiff failed to establish proximate cause.\nIt is well-established that \u201c[i]f the evidence failed to show a causal connection between the alleged negligence and the injury complained of, motion for directed verdict in favor of the defendant was proper.\u201d Hart v. Warren, 46 N.C. App. 672, 678, 266 S.E.2d 53, 58, disc. rev. denied, 301 N.C. 89 (1980). Therefore, even if the trial court erred in excluding Dr. Frost\u2019s testimony with respect to the applicable standard of care, the trial court\u2019s order still includes a ruling that plaintiff failed to meet her burden of proof in establishing proximate cause. Because plaintiff failed to challenge this alternate basis for the trial court\u2019s order granting defendant\u2019s motion for directed verdict, this Court need not evaluate her claims with respect to Dr. Frost\u2019s knowledge of the applicable standard of care and his competency to serve as an expert witness. See N.C. R. App. P. 10(a), 10(c), 28(a) (2006).\nAdditionally, although plaintiff\u2019s sole assignment of error in the record on appeal states, inter alia, that the trial court \u201cabused [its] discretion by . . . granting Defendant\u2019s motion for directed verdict,\u201d plaintiff has failed to present any argument in the body of her brief directly related to the trial court\u2019s order granting defendant\u2019s motion for directed verdict. The only portions of her brief in which the directed verdict order arguably is discussed are the standard of review and conclusion sections. Plaintiff presented an argument in her brief with respect to her assignment of error that the trial court erred in excluding Dr. Frost\u2019s testimony, but she failed to present any argument in her brief with respect to her assignment of error that the trial court erred in granting defendant\u2019s motion for directed verdict. It is well-settled that \u201c[assignments of error ... in support of which no reason or argument is stated... will be taken as abandoned.\u201d N.C. R. App. P 28(b)(6) (2006) (emphasis added); see also N.C. R. App. P. 28(a) (2006) (\u201cQuestions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party\u2019s brief, are deemed abandoned.\u201d (emphasis added)); see, e.g., Nguyen v. Burgerbusters, Inc., 182 N.C. App. 447, 453, 642 S.E.2d 502, 507, disc. rev. denied, 361 N.C. 695, 652 S.E.2d 650 (2007). Therefore, we deem plaintiff\u2019s assignment of error related to the order granting the directed verdict abandoned.\nBecause plaintiff has failed to present an argument with respect to either the alternate basis for the trial court\u2019s order or the trial court\u2019s order itself, a resolution of defendant\u2019s argument with respect to Dr. Frost\u2019s testimony is unnecessary for a resolution of the instant appeal. Accordingly, the trial court\u2019s order granting defendant\u2019s motion for directed verdict is affirmed.\nAffirmed.\nJudge HUNTER concurs in the result in a separate opinion.\nJudge BRYANT concur.\n. Here, plaintiff stated only the trial court\u2019s standard for ruling on a motion for directed verdict. Although \u201cthe reviewing court is confronted with the identical task as the trial court\u201d with respect to a directed verdict in a negligence action, Cobb v. Reitter, 105 N.C. App. 218, 220, 412 S.E.2d 110, 111 (1992), it nevertheless was plaintiff\u2019s burden as the appellant to state the applicable standard of appellate review. See N.C. R. App. R 28(b)(6) (2006) (requiring an appellant\u2019s brief to include \u201ca concise statement of the applicable standard(s) of review for each question presented\u201d as well as \u201ccitations of the authorities\u201d supporting the proposed standard of appellate review).\n. Although not bound by unpublished opinions, see State v. Pritchard, 186 N.C. App. 128, 129, 649 S.E.2d 917, 918 (2007), we note that similar conclusions have been reached by this Court. See, e.g., Garrison v. Holt, No. COA06-1085, 2007 N.C. App. LEXIS 1883, at *9-10 n.4 (N.C. Ct. App. Sept. 4, 2007) (\u201cAlthough Respondent assigns error to the trial court\u2019s denial of her Motion for New Trial and for Relief from Judgment and mentions Rule 59 and Rule 60 of the North Carolina Rules of Civil Procedure in the \u2018Standard of Review\u2019 and \u2018Conclusion\u2019 sections of her brief, she asserts no argument on these grounds in the body of her brief. Therefore, the assignment of error addressing Rule 59 and Rule 60 is deemed abandoned.\u201d); Grier v. Earl Tindol Ford, Inc., No. COA04-815, 2005 N.C. App. LEXIS 820, at *3 (N.C. Ct. App. Apr. 19, 2005) (\u201cPlaintiff also assigns error to the court\u2019s granting defendant\u2019s motion for directed verdict. While plaintiff cites two cases regarding the .standard of review on appeal of a grant of directed verdict, he makes no argument regarding their application to his case. We deem this assignment abandoned.\u201d).", "type": "majority", "author": "JACKSON, Judge." }, { "text": "HUNTER, Judge,\nconcurring in the result.\nI concur with the result of the majority\u2019s opinion but would affirm the trial court\u2019s entrance of a directed verdict on the ground that Violet R. Kerr\u2019s (\u201cplaintiff\u201d) expert\u2019s testimony was properly excluded, thereby making a directed verdict in favor of Dr. Fred L. Long, Jr. (\u201cdefendant\u201d) appropriate.\nThe entry of a directed verdict is reviewed de novo. Herring v. Food Lion, LLC, 175 N.C. App. 22, 26, 623 S.E.2d 281, 284 (2005). As the majority correctly notes, upon a defendant\u2019s motion for a directed verdict in a medical malpractice case, \u201c \u2018the question raised is whether plaintiff has offered evidence of each of the following elements of his claim for relief: (1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages.\u2019 \u201d Pope v. Cumberland Cty. Hosp. Sys., Inc., 171 N.C. App. 748, 750, 615 S.E.2d 715, 717 (2005) (citation omitted).\nIn this case, the trial court excluded the testimony of Dr. Mitchell M. Frost, plaintiff\u2019s expert. Plaintiff argues that the exclusion of such testimony was in error, thereby rendering the trial court\u2019s grant of directed verdict for defendant erroneous. I disagree.\nIn medical malpractice cases, to prevail, plaintiffs must establish by the greater weight of the evidence that the care of the defendant-healthcare provider \u201cwas not 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 at the time of the alleged act giving rise to the cause of action.\u201d N.C. Gen. Stat. \u00a7 90-21.12 (2007). In opposing a motion for summary judgment or directed verdict, \u201ca plaintiff must demonstrate that his expert witness is \u2018competent to testify as an expert witness to establish the appropriate standard of care\u2019 in the relevant community.\u201d Purvis v. Moses H. Cone Mem\u2019l Hosp. Serv. Corp., 175 N.C. App. 474, 477-78, 624 S.E.2d 380, 384 (2006) (quoting Billings v. Rosenstein, 174 N.C. App. 191, 196, 619 S.E.2d 922, 925 (2005)). Simply put, a plaintiff must produce expert testimony that: (1) the expert is familiar with the community where the injury occurred or a similar community; (2) the expert was familiar with the area or similar area on the date in which the injury occurred; and (3) the expert has similar training and experience as the defendant.\nIn this case, plaintiff\u2019s expert testimony regarding his knowledge of Wake County, where the injury occurred, came from a website he visited in 2004. The date of the alleged injury was in 2003. Defendant therefore argues that the trial court did not err in excluding Dr. Frost\u2019s testimony. I agree.\nIn Purvis, this Court held that an expert\u2019s testimony was properly excluded where the expert\u2019s only knowledge of the locality came four years after the alleged injury. Id. at 480-81, 624 S.E.2d at 385. We reasoned that \u201cN.C. Gen. Stat. \u00a7 90-21.12 . . . specifically states that the expert must be familiar with the standard of care in the same or similar community \u2018at the time of the alleged act giving rise to the cause of action.\u2019 \u201d Id. at 480, 624 S.E.2d at 385 (emphasis added) (quoting N.C. Gen. Stat. \u00a7 90-21.12). Although plaintiff\u2019s expert did not wait four years before gathering information on Wake County, he still failed to comply with the statute insofar as it requires knowledge at the time of the injury. Dr. Frost even testified that the time between the injury and his research on the standard of care in Wake County that he \u201cwould expect that there were some ... changes\u201d in the standard. Cf. Roush v. Kennon, 188 N.C. App. 570, 576, -S.E.2d. -, - (No. COA07-209 filed 5 February 2008) (holding that an expert can comply with the timing requirement if an expert\u2019s research, even after his or her deposition, revealed that the standard of care in his or her community was the same or similar to the standard of care in the community in which he or she is testifying when the injury occurred). I would therefore hold that plaintiff\u2019s expert\u2019s testimony was properly excluded per Purvis and thus plaintiff has failed to produce sufficient expert testimony to defeat defendant\u2019s motion for a directed verdict, and I would affirm the ruling of the trial court on that ground.\n. The fact that plaintiff\u2019s expert relied on internet research is not a sufficient ground to exclude an expert\u2019s testimony. See Coffman v. Roberson, 153 N.C. App. 618, 624-25, 571 S.E.2d 255, 259 (2002) (holding that experts may rely in part on internet research).", "type": "concurrence", "author": "HUNTER, Judge," } ], "attorneys": [ "Cedric R. Perry, for plaintiff-appellant.", "Cranfill Sumner & Hartzog, LLP, by David D. Ward, Jaye E. Bingham, and Michael C. Allen, for defendant-appellee." ], "corrections": "", "head_matter": "VIOLET KERR, Plaintiff v. FRED LONG, JR., M.D., Defendant\nNo. COA07-916\n(Filed 18 March 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to include transcript of deposition\nAlthough defendant doctor in a medical negligence case devoted seven pages in his brief to discussing and quoting from a doctor\u2019s videotaped deposition played for the jury, the Court of Appeals was unable to review the contents of this testimony in determining whether the trial court properly granted defendant\u2019s motion for directed verdict because: (1) the transcript of the deposition was not included as part of the record on appeal; and (2) N.C. R. App. P. 9 provides that review is limited to the record on appeal, verbatim transcripts, and any other items properly filed with the record.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nA de novo review revealed that the trial court did not err in a medical negligence case by granting defendant\u2019s motion for directed verdict because: (1) even if the trial court erred by excluding a doctor\u2019s testimony with respect to the applicable standard of care, the trial court\u2019s order still included a ruling that plaintiff failed to meet her burden of proof in establishing proximate cause, and plaintiff failed to challenge this alternative basis for the trial court\u2019s ruling; and (2) plaintiff failed to present an argument in her brief with respect to her assignment of error that the trial court erred in granting defendant\u2019s motion for directed verdict.\nJudge HUNTER concurring in result in separate opinion.\nAppeal by plaintiff from an order entered 4 January 2007 by Judge J.B. Allen, Jr. in Wake County Superior Court. Heard in the Court of Appeals 6 February 2008.\nCedric R. Perry, for plaintiff-appellant.\nCranfill Sumner & Hartzog, LLP, by David D. Ward, Jaye E. Bingham, and Michael C. Allen, for defendant-appellee." }, "file_name": "0331-01", "first_page_order": 363, "last_page_order": 370 }