{ "id": 4167780, "name": "DERRICK BARRINGER, as Administrator of the Estate of DRAKE BARRINGER, Plaintiff v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, MICHAEL H. HINES, MD, WAKE FOREST UNIVERSITY PHYSICIANS, NORTH CAROLINA BAPTIST HOSPITAL, and WAKE FOREST UNIVERSITY, Defendants", "name_abbreviation": "Barringer v. Wake Forest University Baptist Medical Center", "decision_date": "2009-06-02", "docket_number": "No. COA08-269", "first_page": "238", "last_page": "261", "citations": [ { "type": "official", "cite": "197 N.C. App. 238" } ], "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": "593 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631203 ], "year": 2004, "pin_cites": [ { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/se2d/593/0799-01" ] }, { "cite": "163 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919442, 12631203 ], "year": 2004, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0553-01", "/se2d/593/0799-01" ] }, { "cite": "644 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638298 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/644/0226-01" ] }, { "cite": "634 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636653 ], "year": 2006, "pin_cites": [ { "page": "561", "parenthetical": "\"[P]laintiff has cited no authority in support of its argument, and thus has abandoned this assignment of error.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0557-01" ] }, { "cite": "648 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639045 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/648/0209-01" ] }, { "cite": "628 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635639 ], "year": 2006, "pin_cites": [ { "page": "855", "parenthetical": "stating that, in reviewing an order granting summary judgment, this Court \"view[s] the evidence in the light most favorable to the nonmoving party\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0851-01" ] }, { "cite": "648 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639091 ], "year": 2007, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0566-01" ] }, { "cite": "661 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641155 ], "weight": 10, "year": 2008, "pin_cites": [ { "page": "757-58" }, { "page": "757" }, { "page": "757" }, { "page": "756-57" }, { "page": "787" }, { "page": "757" }, { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0754-01" ] }, { "cite": "666 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641837 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "157" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0153-01" ] }, { "cite": "624 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634835 ], "year": 2006, "pin_cites": [ { "page": "383", "parenthetical": "quoting Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998)" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0380-01" ] }, { "cite": "625 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634948 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "116", "parenthetical": "citing Bowers v. Olf, 122 N.C. App. 421, 427, 470 S.E.2d 346, 350 (1996)" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0115-01" ] }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571435, 2572686, 2566866, 2568754, 2567063 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0474-05", "/nc/321/0474-03", "/nc/321/0474-02", "/nc/321/0474-04", "/nc/321/0474-01" ] }, { "cite": "361 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "917" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358661 ], "year": 1987, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0512-01" ] }, { "cite": "560 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "847" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125989 ], "year": 2002, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0152-01" ] }, { "cite": "192 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160249 ], "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0340-01" ] }, { "cite": "326 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "605" }, { "page": "606" } ], "opinion_index": 0 }, { "cite": "313 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719700 ], "year": 1985, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0033-01" ] }, { "cite": "361 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743716, 3745094, 3745835, 3738194, 3742131 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0355-04", "/nc/361/0355-05", "/nc/361/0355-02", "/nc/361/0355-03", "/nc/361/0355-01" ] }, { "cite": "179 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8237010 ], "year": 2006, "pin_cites": [ { "page": "420", "parenthetical": "\"[P]laintiff has cited no authority in support of its argument, and thus has abandoned this assignment of error.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0414-01" ] }, { "cite": "571 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "7", "parenthetical": "\"[A] party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250280 ], "year": 2002, "pin_cites": [ { "page": "440", "parenthetical": "\"[A] party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0435-01" ] }, { "cite": "445 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534562, 2535915, 2539181, 2537523, 2539385 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0316-04", "/nc/336/0316-01", "/nc/336/0316-05", "/nc/336/0316-02", "/nc/336/0316-03" ] }, { "cite": "439 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "113 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522145 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/113/0341-01" ] }, { "cite": "190 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "opinion_index": 0 }, { "cite": "361 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745792, 3739073, 3742562, 3742250, 3744530, 3745567 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0426-06", "/nc/361/0426-03", "/nc/361/0426-01", "/nc/361/0426-02", "/nc/361/0426-04", "/nc/361/0426-05" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] }, { "cite": "177 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301249 ], "year": 2006, "pin_cites": [ { "page": "294", "parenthetical": "stating that, in reviewing an order granting summary judgment, this Court \"view[s] the evidence in the light most favorable to the nonmoving party\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0290-01" ] }, { "cite": "185 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210914 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "527" }, { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0524-01" ] }, { "cite": "573 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250282 ], "year": 2002, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0372-01" ] }, { "cite": "190 N.C. App. 785", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158453 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "787" }, { "page": "787" }, { "page": "786" }, { "page": "787" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0785-01" ] }, { "cite": "192 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160795 ], "year": 2008, "pin_cites": [ { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0667-01" ] }, { "cite": "510 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659969, 1659875, 1659973, 1659859, 1659866 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0509-01", "/nc/348/0509-04", "/nc/348/0509-05", "/nc/348/0509-03", "/nc/348/0509-02" ] }, { "cite": "497 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "709" }, { "page": "711", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649254 ], "weight": 2, "pin_cites": [ { "page": "239" }, { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0237-01" ] }, { "cite": "558 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "164", "parenthetical": "stating that the trial court granted defendants' \"motions to dismiss pursuant to Rules 9(j) and 12(b)(6)\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220102 ], "year": 2002, "pin_cites": [ { "page": "200", "parenthetical": "stating that the trial court granted defendants' \"motions to dismiss pursuant to Rules 9(j) and 12(b)(6)\"" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0198-01" ] }, { "cite": "120 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "254 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627858 ], "year": 1961, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0680-01" ] }, { "cite": "243 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "908", "parenthetical": "citing Holcomb, 192 N.C. 504, 135 S.E. 287" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 385", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553852 ], "year": 1978, "pin_cites": [ { "page": "386", "parenthetical": "citing Holcomb, 192 N.C. 504, 135 S.E. 287" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0385-01" ] }, { "cite": "78 S.E. 4", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 0 }, { "cite": "162 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270350 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nc/162/0122-01" ] }, { "cite": "135 S.E. 287", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1926, "pin_cites": [ { "page": "288", "parenthetical": "citing McLeod v. Gooch, 162 N.C. 122, 78 S.E. 4 (1913)" } ], "opinion_index": 0 }, { "cite": "192 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624447 ], "weight": 2, "year": 1926, "pin_cites": [ { "page": "504", "parenthetical": "citing McLeod v. Gooch, 162 N.C. 122, 78 S.E. 4 (1913)" } ], "opinion_index": 0, "case_paths": [ "/nc/192/0504-01" ] }, { "cite": "243 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "906" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553370 ], "year": 1978, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0346-01" ] }, { "cite": "474 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "788" } ], "opinion_index": 0 }, { "cite": "344 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867707 ], "year": 1996, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0394-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "pin_cites": [ { "page": "484-85" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "417 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498222 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0749-01" ] }, { "cite": "368 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518600, 2513230 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0330-02", "/nc/322/0330-01" ] }, { "cite": "364 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 634", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358847 ], "year": 1988, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0634-01" ] }, { "cite": "408 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "865-66", "parenthetical": "quoting Weaver v. Weaver, 88 N.C. App. 634, 638, 364 S.E.2d 706, 709, disc. review denied, 322 N.C. 330, 368 S.E.2d 875 (1988)" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520576 ], "year": 1991, "pin_cites": [ { "page": "152", "parenthetical": "quoting Weaver v. Weaver, 88 N.C. App. 634, 638, 364 S.E.2d 706, 709, disc. review denied, 322 N.C. 330, 368 S.E.2d 875 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0142-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] }, { "cite": "415 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "331 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498339 ], "year": 1992, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0182-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "675 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2009, "pin_cites": [ { "page": "628" }, { "page": "628" }, { "page": "631" }, { "page": "634", "parenthetical": "Martin, J., concurring" }, { "parenthetical": "Martin, J., concurring" }, { "parenthetical": "Martin, J., concurring" }, { "parenthetical": "Martin, J., concurring" }, { "page": "635", "parenthetical": "Martin, J., concurring" } ], "opinion_index": 0 }, { "cite": "363 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150629 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "142" }, { "page": "142-43" }, { "page": "147" }, { "page": "153" }, { "page": "154, n.1" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0140-01" ] }, { "cite": "500 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651913 ], "year": 1998, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0618-01" ] }, { "cite": "175 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352454 ], "year": 2006, "pin_cites": [ { "page": "477", "parenthetical": "quoting Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0474-01" ] }, { "cite": "470 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "350" }, { "page": "350" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 9249507 ], "year": 2002, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0215-01" ] } ], "analysis": { "cardinality": 1559, "char_count": 55241, "ocr_confidence": 0.75, "pagerank": { "raw": 2.0768138805740366e-07, "percentile": 0.7585229872475191 }, "sha256": "16109d09fb5faaae3ac058e784f690465bd5f6f1b195a5d6229db749d6fccc32", "simhash": "1:9f2ac4241f1f89cc", "word_count": 9046 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McGEE concur." ], "parties": [ "DERRICK BARRINGER, as Administrator of the Estate of DRAKE BARRINGER, Plaintiff v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, MICHAEL H. HINES, MD, WAKE FOREST UNIVERSITY PHYSICIANS, NORTH CAROLINA BAPTIST HOSPITAL, and WAKE FOREST UNIVERSITY, Defendants" ], "opinions": [ { "text": "STEPHENS, Judge.\nIn this medical malpractice action, Plaintiff appeals following a jury verdict which found that Defendants were not negligent in their treatment of Plaintiffs infant son, Drake Barringer, who died seven months after his birth. We reverse and remand with instructions.\nBackground\nThrough counsel, Plaintiff initiated an action on 23 December 2003 by filing a complaint against Defendants Wake Forest University Baptist Medical Center, Wake Forest University Physicians, North Carolina Baptist Hospital, and Wake Forest University (collectively, \u201ccorporate Defendants\u201d), and Michael H. Hines, M.D., Karen H. Raines, M.D., and R. Mark Payne, M.D. Defendants answered the complaint on 18 March 2004, but the action subsequently was dismissed.\nPlaintiff re-filed the complaint pro se on 21 October 2005. Defendants' filed an answer on 19 December 2005. On 16 February 2006, the law firm of Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., which did not prepare the initial complaint, filed a notice of appearance as Plaintiffs counsel. The trial court subsequently allowed Plaintiff to amend the complaint. The complaint, as amended, contained the following allegations:\nDrake was born to Plaintiff and Plaintiffs wife on 13 May 2001. On 18 May 2001, Dr. Hines, a pediatric cardiothoracic surgeon at Baptist Hospital, diagnosed Drake with tetralogy of Fallot, one symptom of which is a ventricular septal defect (\u201cVSD\u201d). Dr. Hines recommended that Drake undergo heart surgery to repair the VSD. Plaintiff asked Dr. Hines about the propriety of conducting a preoperative cardiac catheterization on Drake in order to determine if the operation was necessary. Dr. Hines advised the Barringers that Drake was too \u201cyoung\u201d for a catheterization and that Drake would not survive such a procedure. The Barringers consented to the surgery. Without ordering a preoperative transesophogeal echocardiogram (\u201cTEE\u201d), Dr. Hines operated on Drake on 27 June 2001. Dr. Hines did not order an intraoperative or postoperative TEE to determine whether the VSD had been repaired. Drake did not recover as expected from the surgery.\nThe complaint further alleged that Drake underwent an echocardiogram on 5 July 2001 and that Dr. Raines, a pediatric cardiologist, \u201cfailed to accurately interpret the echocardiogram.\u201d On 9 July 2001, Drake underwent a cardiac catheterization. On 10 July 2001, Dr. Hines performed a second operation on Drake. As before, Drake did not undergo an intraoperative or postoperative TEE. As before, Drake did not recover as expected from the surgery.\nFinally, the complaint alleged that Drake underwent another echocardiogram on 14 July 2001, and that Dr. Payne, a pediatric cardiologist, \u201cfailed to accurately interpret the echocardiogram.\u201d Dr. Hines performed a third operation on Drake on 16 August 2001. The complaint alleged that, under the circumstances, the procedure performed by Dr. Hines \u201cwas not the correct procedure to perform.\u201d Drake died at Baptist Hospital on 26 December 2001.\nOn these allegations, Plaintiff asserted that Defendants were negligent in providing medical care and treatment to Drake. Specifically, Plaintiff alleged as follows:\n1. Dr. Hines was negligent in failing to order a TEE before the first surgery;\n2. Dr. Hines was negligent in failing to order TEEs during or after the first and second surgeries;\n3. Dr. Hines was negligent in failing to order an echocardiogram or catheterization in a timely manner following the first surgery;\n4. Dr. Hines was negligent in failing to transfer Drake to another facility after the second surgery;\n5. Dr. Hines was negligent in failing to perform the correct procedure during the third surgery;\n6. In advising the Barringers, that Drake would not survive a catheterization before the first surgery, Dr. Hines obtained the Barringers\u2019 consent by \u201cfraud, deception!,] and a misrepresentation of a material fact,\u201d and, therefore, Dr. Hines was negligent in performing the first operation on Drake without the Barringers\u2019 informed consent.\n7. Dr. Raines and Dr. Payne were negligent in failing to properly interpret the echocardiograms.\nPlaintiff advanced each of these claims against the corporate Defendants under the theory of vicarious liability, and Plaintiff sought compensatory and punitive damages on the claims.\nIn a discovery scheduling order, the trial court set the matter for trial on 21 May 2007 and ordered all discovery to be completed by 13 April 2007. The trial court did not designate a date by which the parties were required to file all dispositive motions. Pursuant to the order, Plaintiff designated pediatric cardiothoracic surgeon Ralph S. Mosca and pediatric cardiologist Arthur S. Raptoulis as the experts who would testify at trial. On 31 July 2006, Plaintiff filed the doctors\u2019 affidavits, both of which stated that the medical care provided to Drake \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 the health care was rendered.\u201d\nOn 4 August 2006, Plaintiff filed a motion to compel discovery. On 8 September 2006, the trial court allowed the motion in part and denied the motion in part.\nDefendants deposed Plaintiff\u2019s experts in November and December 2006. In his deposition, Dr. Mosca testified that Dr. Hines breached the standard of care by (1) performing the first surgery, because surgery was not indicated for a patient of Drake\u2019s age, (2) failing to properly diagnose Drake\u2019s condition prior to performing the first surgery, and (3) failing to transfer Drake to another hospital after the second surgery. In his deposition, Dr. Raptoulis testified that Dr. Hines breached the standard of care by'(l) failing to properly interpret an echocardiogram before the first surgery, (2) failing to order a TEE before, during, or after the first surgery, and (3) improperly obtaining the Barringers\u2019 consent to perform the first surgery. On 12 December 2006, Plaintiff voluntarily dismissed Dr. Raines and Dr. Payne from the action without prejudice.\nOn or about 6 March 2007, Plaintiff filed a motion to reconsider the 8 September 2006 order which denied in part Plaintiff\u2019s motion to compel discovery. In the motion to reconsider, Plaintiff sought to discover, inter alia, the names and addresses of all patients who died while under Dr. Hines\u2019 care between 1 January 1995 and 26 December 2001. By order entered 22 March 2007, the trial court denied Plaintiff\u2019s motion to reconsider.\nOn 9 March 2007, Defendants filed a motion to dismiss Plaintiff\u2019s complaint \u201cpursuant to Rule 9(j)and Rule 41(b) of the North Carolina Rules of Civil Procedure.\u201d In the motion, Defendants asserted that Plaintiff could not have had a reasonable expectation that either Dr. Mosca or Dr. Raptoulis would qualify as expert witnesses. Defendants also asserted that \u201c[b]ecause neither of [P]laintiff\u2019s experts is qualified to testify against [Defendants at the trial of this matter, [Plaintiff can offer no expert opinion as to the standard of care which is required by N.C. Gen. Stat. [\u00a7] 90-21.12.\u201d The trial court, Judge A. Moses Massey presiding, conducted a hearing on Defendants\u2019 motion on 16 March 2007 and denied the motion by order entered 22 March 2007.\nOn or about 29 March 2007, Defendants filed a motion for summary judgment \u201cpursuant to Rule 56 of the North Carolina Rules of Civil Procedure[.]\u201d In the motion, Defendants asserted that \u201c[b]ecause neither of [P]laintiff\u2019s experts is qualified to testify at the trial of this matter, [P]laintiff can offer no expert opinion as to the standard of care which is required by N.C. Gen. Stat. [\u00a7] 90-21.12.\u201d On 23 April 2007, Plaintiff filed a motion to strike and dismiss Defendants\u2019 motion for summary judgment on the ground that the motion was \u201cidentical\u201d to the motion to dismiss filed 9 March 2007.\nOn or about 25 April 2007, Plaintiff filed a second affidavit of Dr. Raptoulis in which he averred, inter alia, that Defendants were negligent \u201cthrough their employee, Dr. Wesley Covitz,\u201d in that Dr. Covitz mis-diagnosed Drake\u2019s condition. On 15 May 2007, Plaintiff filed a third affidavit of Dr. Raptoulis in which he averred that Dr. Hines breached the standard of care by advising the Barringers before Drake\u2019s first surgery that Drake would not survive a catheterization. On 7 May 2007, Plaintiff filed a second affidavit of Dr. Mosca in which he averred, inter alia, that he was familiar with the standard of care in communities similar to Winston-Salem. On 3, 7, and 16 May 2007, Defendants filed motions to strike these affidavits on the ground that the affidavits contradicted the doctors\u2019 deposition testimony.\nThe trial court, Judge R. Stuart Albright presiding, subsequently conducted a hearing on (1) Plaintiff\u2019s motion to dismiss Defendants\u2019 motion for summary judgment, (2) Defendants\u2019 motions to strike Plaintiff\u2019s affidavits, and (3) Defendants\u2019 motion for summary judgment. In three orders entered 18 May 2007, the trial court (1) denied Plaintiff\u2019s motion to dismiss Defendants\u2019 motion for summary judgment, (2) granted Defendants\u2019 motion to strike Dr. Mosca\u2019s 7 May 2007 affidavit, and (3) granted Defendants\u2019 motion to strike Dr. Raptoulis\u2019 25 April 2007 affidavit only to the extent that the affidavit referred to the alleged negligence of Dr. Covitz. In a fourth order entered that day, the trial court granted Defendants\u2019 motion for summary judgment on (1) all claims which depended on the testimony of Dr. Mosca, (2) the claim that Defendants negligently failed to transfer Drake to another facility, (3) all claims which depended on the testimony of Dr. Raptoulis concerning the performance of any action taken during surgery, and (4) all claims based on the negligence of Dr. Covitz. The court denied Defendants\u2019 motion as to:\n1. Dr. Hines\u2019 alleged failure to interpret the 18 May 2001 echocardiogram correctly;\n2. Dr. Hines\u2019 alleged failure to perform additional diagnostic studies prior to the first surgery;\n3. Dr. Hines\u2019 alleged failure to obtain the Barringers\u2019 informed consent prior to the first surgery; and\n4. Dr. Hines\u2019 alleged failure to obtain further diagnostic studies following the first surgery.\nThe case proceeded to trial on these remaining issues.\nAt trial, Dr. Raptoulis testified that Dr. Hines breached the standard of care by telling the Barringers that Drake would not survive a catheterization before the first surgery. Plaintiff\u2019s counsel then asked Dr. Raptoulis whether that breach was a \u201cdirect or proximate cause of the multiple surgeries and subsequent death of Drake[.]\u201d Defendants\u2019 counsel objected, and the trial court heard extensive voir dire testimony. At the conclusion of the hearing, the trial court ruled that while Dr. Raptoulis could testify that Dr. Hines breached the standard of care in advising the Barringers that Drake would not survive a pre-surgery cardiac catheterization and that the failure to perform the cardiac catheterization was a proximate cause of Drake\u2019s death, Dr. Raptoulis could not testify that Dr. Hines breached the standard of care in failing to perform additional diagnostic studies prior to or after the first surgery.\nAt the conclusion of Plaintiff\u2019s evidence, the trial court granted Defendants\u2019 motion for a directed verdict on Plaintiff\u2019s claim for punitive damages \u201cas to the corporate [D]efendants[,]\u201d but denied the motion \u201cwith regard to Dr. Hines.\u201d Following the presentation of Defendants\u2019 evidence, the court submitted the following issue to the jury: \u201cWas the death of Drake Barringer caused by the negligence of [Defendants], by and through the actions of Dr. Hines?\u201d The jury answered this question in the negative, and the court entered judgment in Defendants\u2019 favor on 13 June 2007. Plaintiff timely appealed.\nI. SUMMARY JUDGMENT \u2014 DR. MOSCA\nWe first address Plaintiff\u2019s argument that the trial court erred in granting summary judgment on all claims that were dependent on Dr. Mosca\u2019s testimony. Plaintiff argues that summary judgment was improper on these claims because (1) Dr. Mosca stated in his 31 July 2006 affidavit that Defendants breached \u201cthe 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 the health care was rendered[,]\u201d (2) Dr. Mosca testified in his deposition that he was familiar with the national standard of care and that there was no difference between a, national standard and the same or similar community standard, (3) Dr. Mosca testified in his deposition that he was familiar with the standard of care in communities similar to Winston-Salem, and (4) Dr. Mosca sufficiently stated in his 7 May 2007 affidavit that he was familiar with the applicable standard of care.\nInitially, we note that the trial court struck and did not consider Dr. Mosca\u2019s 7 May 2007 affidavit when ruling on Defendants\u2019 motion for summary judgment. Plaintiff asserts that the court \u201ccommitted prejudicial error\u201d in striking the affidavit because the affidavit \u201cdid not contradict any prior opinions set forth in [Dr. Mosca\u2019s] deposition[.]\u201d We review an order striking an affidavit for abuse of discretion. Blair Concrete Sews., Inc. v. Van-Allen Steel Co., 152 N.C. App. 215, 219, 566 S.E.2d 766, 768 (2002). The appellant must show not only that the trial court abused its discretion in striking an affidavit, but also \u201cthat prejudice resulted from that error.\u201d Miller v. Forsyth Mem\u2019l Hosp., Inc., 174 N.C. App. 619, 620, 625 S.E.2d 115, 116 (2005) (citing Bowers v. Olf, 122 N.C. App. 421, 427, 470 S.E.2d 346, 350 (1996)). \u201cThis Court will not presume prejudice.\u201d Id.\nEven if the trial court abused its discretion in striking the affidavit, Plaintiff in no way explains how he was prejudiced by the trial court\u2019s action. On the contrary, Plaintiff states that the 7 May 2007 affidavit \u201csimply re-affirmed the expert opinions previously set forth in [Dr. Mosca\u2019s] deposition.\u201d We thus conclude that Plaintiff has not met the heavy burden of showing that the trial court erred in striking the affidavit, and we will not consider the affidavit\u2019s contents in reviewing the grant of summary judgment on all claims which depended on Dr. Mosca\u2019s testimony. Our review is limited to Dr. Mosca\u2019s 31 July 2006 affidavit and deposition testimony.\nIn a medical malpractice action, \u201ca plaintiff has the burden of showing \u2018(1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff.\u2019 \u201d Purvis v. Moses H. Cone Mem\u2019l Hosp. Serv. Corp., 175 N.C. App. 474, 477, 624 S.E.2d 380, 383 (2006) (quoting Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998)). \u201cTo meet [the] burden of proving the applicable standard of care, [a plaintiff] must satisfy the requirements of N.C.G.S. \u00a7 90-21.12 . . . .\u201d Crocker v. Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628 (2009). Section 90-21.12 states as follows:\nIn any action for damages for personal injury or death arising out of the furnishing or the failure- to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was 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.\nN.C. Gen. Stat. \u00a7 90-21.12 (2005).\nWhen plaintiffs have introduced evidence from an expert stating that the defendant doctor did not meet the accepted medical standard, \u201c[t]he evidence forecast by the plaintiffs establishes a genuine issue of material fact as to whether the defendant doctor breached the applicable standard of care and thereby proximately caused the plaintiffs\u2019 injuries.\u201d\nCrocker, 363 N.C. at 142-43, 675 S.E.2d at 628 (quoting Mozingo v. Pitt Cty. Mem\u2019l Hosp., Inc., 331 N.C. 182, 191, 415 S.E.2d 341, 346 (1992)). \u201cThis issue is ordinarily a question for the jury, and in such case, it is error for the trial court to enter summary judgment for the defendant.\u201d Id. We review a trial court\u2019s ruling on summary judgment de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).\nThe sole issue raised by this argument is whether Dr. Mosca was sufficiently familiar with the applicable standard of care. It is undisputed that Dr. Mosca was otherwise qualified to offer expert testimony against Defendants. We agree that Dr. Mosca\u2019s 31 July 2006 affidavit speaks in the language of N.C. Gen. Stat. \u00a7 90-21.12. However, Dr. Mosca\u2019s subsequent deposition testimony presents a close question as to whether Dr. Mosca was indeed sufficiently familiar with the applicable standard of care. In response to Defendants\u2019 counsel\u2019s questions, Dr. Mosca seemed to state that Defendants breached a national standard of care:\nQ. First of all, you understand, Dr. Mosca, that in order to be held responsible for medical negligence there must have been a breach of the applicable standard of care for a surgeon like Dr. Hines in his community, correct?\nA. Yes, although I\u2019ll also admit I\u2019m not sure exactly what those things mean from place to place and time to time. I think it\u2019s a little nebulous in the medical community. I have a general idea of what I think should be done.\nQ. Let\u2019s follow up on that for just a minute.\nTell me how you are defining the standard of care for purposes of reviewing Dr. Hines[\u2019] care.\nA. I think I did already but I\u2019ll repeat it and that is having now worked in two or three major medical centers and dealing on a daily, monthly, whatever basis with other people who perform many of these operations, the way we do it is pretty-much similar across different institutions.\nAnd what I\u2019m telling you is having said that and talked to them and been to the national meetings and reading the literature and reviewing the literature, that it seems to me that that[,] as far as medicine goes[,] would have to be considered the standard of care.\nQ. To more simply put that, are you applying a standard of care for national major medical centers to Dr. Hines?\nA. Well, anybody, I think, who does these type of surgeries, in my opinion should apply the care that they can get at major medical centers, yes.\nQ. And is that a national standard of care in your opinion?\nA. In my opinion, yes.\nBut again, we don\u2019t have defined standard of cares in medicine. That I know of.\nQ. But in your opinion, you are applying a national standard of care, correct?\nA. I guess the answer is yes.\nI\u2019m trying to generalize for what I think surgeons who do this on a regular basis would say is reasonable.\nQ. Do you recognize that there is a difference between a true breach of the standard of care and what physicians may differ about and what may therefore be called a matter of physician judgment?\nA. I believe so, yes.\nQ. And you understand the difference between those two concepts?\nA. I do. I think the difference is really generated by the overwhelming opinion of people who do it a lot. That\u2019s what I\u2019m trying to use as my yardstick.\nIn response to Plaintiffs counsel\u2019s questions, Dr. Mosca seemed to state that Defendants breached the standard of care in communities similar to Winston-Salem:\nQ. I just want to touch briefly on the standards of practice.\nI want to ask you first of all: Are you familiar with the Durham medical community, Durham North Carolina medical community, they call it Duke University Medical Center?\nA. I\u2019m familiar with Duke University, North Carolina Chapel Hill, with Wake Forest, insofar as I know that they are \u2014 exist and who works there. And again, I visited the area. I went to school in the area, but as far as actually visiting the medical centers, it\u2019s rare.\nQ. But have you been to the medical center at Wake Forest University?\nA. Yes.\nQ. And do you consider the Durham Medical Community, Duke University Medical Community similar to the medical community in Winston-Salem?\nA. I would say yes, they\u2019re about the same size and offer the same care.\nQ. Do you consider the medical community in Ann Arbor, Michigan to be similar to the medical community in Winston-Salem?\nA. I think Ann Arbor Michigan \u2014 are you speaking of the pediatric surgery program or just the community in general.\nQ. Just the community in general.\nA. I think they\u2019re similar towns with similar medical communities, yes.\nQ. What about the medical community in Syracuse, New York?\nA. I would say yes.\nQ. I believe you said your brother lives in Charlotte, North Carolina, you visit him now and then?\nA. Yes.\nQ. Do you consider the medical community in Charlotte, North Carolina to be similar to the medical community in Winston-Salem?\nA. I would have to say I\u2019m not all that familiar with the hospital, so it would be hard for me to make a determination on that.\nQ. You also indicated that you do some work in New Jersey, is that right?\nA. Yes.\nQ. What city in New Jersey?\nA. New Brunswick, New Jersey.\nQ. Do you consider that medical community to be similar to the medical community in Winston-Salem?\nA. That medical community is, it\u2019s a smaller environment, but surrounded by a large population. So I would say that there are ways that they are very similar, yes.\nQ. I want to go back then and ask you, in terms of your opinions on the violation of the standard of care, whether back in 2001, whether you would have been familiar with the standards of care, standards of practice in Winston-Salem, North Carolina or similar communities for pediatric cardiac thoracic surgery?\nA. Again, if we draw the analogy of medical centers that you\u2019ve mentioned to Winston-Salem, then I believe I would be familiar.\nBut I did not live or work in Winston-Salem so I\u2019m not sure exactly what the standard of care was. But if it\u2019s similar to those others then I would say it should be, yes.\nConsidering this testimony in the light most favorable to Plaintiff, as we must, we conclude that the basis of Dr. Mosca\u2019s opinion that Defendants breached the standard of care is \u201cundeveloped.\u201d Crocker, 363 N.C. at 147, 675 S.E.2d at 631.\nWhile Dr. Mosca seemed to testify that he was applying a national standard of care in response to Defendants\u2019 counsel\u2019s questions, Defendants\u2019 counsel never asked, and Dr. Mosca never testified, that such national standard of care applied in Winston-Salem in 2001. Additionally, while Dr. Mosca seemed to testify that he was applying the standard of care in communities similar to Winston-Salem in response to Plaintiff\u2019s counsel\u2019s questions, he also expressed doubt as to whether Winston-Salem was indeed similar to the communities with which he was familiar. This is, thus, a \u201cclose case[].\u201d Id. at 153, 675 S.E.2d at 634 (Martin, J., concurring).\nOur Supreme Court has instructed that \u201c[w]hen the proffered expert\u2019s familiarity with the relevant standard of care is unclear from the paper record, our trial courts should consider requiring the production of the expert for purposes of voir dire examination.\u201d Id. (Martin, J., concurring). \u201c[Particularly when the admissibility decision may be outcome-determinative, the expense of voir dire examination and its possible inconvenience to the parties and the expert axe justified in oxder to ensure a fair and just adjudication.\u201d Id. (Martin, J., concurring). Accordingly, we reverse the trial court\u2019s order which granted summary judgment on all claims which depended on the testimony of Dr. Mosca. We remand this case to the trial court with instructions to conduct a voir dire examination of Dr. Mosca in order to \u201cdetermine the admissibility of the proposed expert testimony.\u201d Id. (Martin, J., concurring). Should the trial court, after conducting the voir dire examination, determine that Dr. Mosca is qualified to offer his standard of care opinion to the jury, the trial court is instructed to conduct a new trial in this matter.\nII. ADDITIONAL PRE-TRIAL ISSUES\nA. Discovery\nPlaintiff argues that the trial court erred in denying (1) the 4 August 2006 motion to compel discovery, and (2) the 6 March 2007 motion to reconsider the order denying the earlier motion. Plaintiff contends that Defendants should have been compelled to answer the following interrogatories:\n9. Please list the names and last known home address[es] of all pediatric cardiology patients of [Dr. Hines] who have died while under his care from January 1, 1995 until December 26, 2001.\n10. Please list the names of all patients in the pediatric intensive care unit who died between June 27, 2001 and December 26, 2001, who were under the care of [Dr. Hines].\nPlaintiffs motions were denied by orders entered 8 September 2006 and 22 March 2007, respectively.\nIn general,\n[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence nor is it grounds for objection that the examining party has knowledge of the information as to which discovery is sought.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 26(b)(1) (2005). \u201c \u2018[OJrders regarding matters of discovery are within the trial court\u2019s discretion and are reviewable only for abuse of that discretion.\u2019 \u201d In re Estate of Tucci, 104 N.C. App. 142, 152, 408 S.E.2d 859, 865-66 (1991) (quoting Weaver v. Weaver, 88 N.C. App. 634, 638, 364 S.E.2d 706, 709, disc. review denied, 322 N.C. 330, 368 S.E.2d 875 (1988)), disc. review improvidently allowed, 331 N.C. 749, 417 S.E.2d 236 (1992). \u201cIn addition, the appellant must show not only that the trial court erred, but that prejudice resulted from that error.\u201d Miller, 174 N.C. App. at 620, 625 S.E.2d at 116 (citing Bowers, 122 N.C. App. at 427, 470 S.E.2d at 350). \u201cThis Court will not presume prejudice.\u201d Id.\nThe North Carolina Supreme Court has cautioned this Court to apply the \u201cabuse of discretion\u201d standard of review \u201cstrictly,\u201d and has. explained that\n[f]or well over one hundred years, it has been a sufficiently workable standard of review to say merely that a manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof.\nWorthington v. Bynum, 305 N.C. 478, 484-85, 290 S.E.2d 599, 604 (1982). The Supreme Court has also stated that when a trial court makes a discretionary decision, \u201cthe court should make appropriate findings of fact and conclusions of law, sufficient to allow appellate review for abuse of discretion.\u201d Roberts v. Madison Cty. Realtors Ass\u2019n, Inc., 344 N.C. 394, 401, 474 S.E.2d 783, 788 (1996). \u201cFindings of fact and conclusions of law are necessary on decisions of any motion or order ex mero motu only when requested by a party and as provided by Rule 41(b).\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(2) (2005). Failure to make findings upon request constitutes error. Texas W. Fin. Corp. v. Mann, 36 N.C. App. 346, 349, 243 S.E.2d 904, 906 (1978). But where no request is made, \u201cit is presumed that the judge, upon proper evidence, found facts sufficient to support [the] judgment.\u201d Holcomb v. Holcomb, 192 N.C. 504, 504, 135 S.E. 287, 288 (1926) (citing McLeod v. Gooch, 162 N.C. 122, 78 S.E. 4 (1913)). \u201cThus, when no findings are made there is nothing for the appellate court to review.\u201d Kolendo v. Kolendo, 36 N.C. App. 385, 386, 243 S.E.2d 907, 908 (1978) (citing Holcomb, 192 N.C. 504, 135 S.E. 287).\nIn this case, we conclude that Plaintiff has not met the heavy burden of proving an abuse of discretion. Plaintiff contends that the trial court denied the motions to compel \u201cbased on a mere assertion of privilege of Defendants\u2019 counsel.\u201d In fact, the record before this Court is completely silent as to the basis or bases upon which the trial court relied in denying Plaintiff\u2019s motions. Plaintiff does not contend that the trial court announced its reasons for denying the motion to compel at the conclusion of the hearing on that motion, and the transcript of that hearing is not part of the record on appeal. The transcript of the hearing on Plaintiff\u2019s motion for reconsideration is part of the record, but the trial court merely took the motions under advisement at the conclusion of the hearing. Neither party asked the trial court to enter findings of fact or conclusions of law in its orders denying the motions to compel, and neither order denying the motions contains findings or conclusions. The orders state only that the motions were \u201cdenied.\u201d Thus, though we are able to discern the various arguments the parties made in support of their positions on the motion to reconsider, we are wholly unable to discern the trial court\u2019s underlying reasoning in denying Plaintiff\u2019s motions. Accordingly, we presume that the trial court found facts sufficient to support its orders and that its factual findings were supported by competent evidence. Plaintiff has not met the heavy burden of proving that the trial court abused its discretion in denying Plaintiff\u2019s motions to compel discovery. This assignment of error is overruled.\nB. Summary Judgment\nPlaintiff contends the trial court erred in granting summary judgment in favor of Defendants on (1) the claim that Defendants negligently failed to transfer Drake to another facility, (2) all claims which depended on Dr. Raptoulis\u2019 testimony that Defendants breached the standard of care by failing to perform TEEs during or after the first surgery and during the second surgery, and (3) all claims based on the negligence of Dr. Covitz. Plaintiff argues that Defendants were not entitled to judgment as a matter of law on any of these claims. Plaintiff also argues that, in entering the summary judgment order, Judge Albright improperly overruled Judge Massey\u2019s order denying Defendants\u2019 motion to dismiss for failure to comply with Rule 9(j).\nFirst, Plaintiff argues that by considering matters outside the pleadings in ruling on Defendants\u2019 9 March 2007 motion to dismiss for failure to comply with Rule 9(j), Judge Massey converted that motion into a motion for summary judgment; therefore, by granting the 29 March 2007 motion for summary judgment, Judge Albright \u201cin effect overruled Judge Massey\u201d in violation of the principle that \u201c[n]o appeal lies from one superior- court judge to another.\u201d Greene v. Charlotte Chem. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961).\nCivil Procedure Rule 9(j) provides in full as follows:\nMedical malpractice.- \u2014 -Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 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;\n(2) The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or\n(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.\nUpon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court for a judicial district in which venue for the cause of action is appropriate under G.S. 1-82 or, if no resident judge for that judicial district is physically present in that judicial district, otherwise available, or able or willing to consider the motion, then any presiding judge of the superior court for that judicial district may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. The plaintiff shall provide, at the request of the defendant, proof of compliance with this subsection through up to ten written interrogatories, the answers to which shall be verified by the expert required under this subsection. These interrogatories do not count against the interrogatory limit under Rule 33.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2005). As Judge Albright observed during the hearing on the summary judgment motion, we note that this rule does not provide a procedural mechanism by which a defendant may file a motion to dismiss a plaintiffs complaint. But see Thigpen v. Ngo, 355 N.C. 198, 200, 558 S.E.2d 162, 164 (2002) (stating that the trial court granted defendants\u2019 \u201cmotions to dismiss pursuant to Rules 9(j) and 12(b)(6)\u201d); Trapp v. Maccioli, 129 N.C. App. 237, 239, 497 S.E.2d 708, 709 (stating that defendant filed a motion to dismiss \u201cpursuant to Rule 9(j)\u201d), disc. review denied, 348 N.C. 509, 510 S.E.2d 672 (1998). The Rules of Civil Procedure provide other methods by which a defendant may file a motion alleging a violation of Rule 9(j). E.g., N.C. Gen. Stat. \u00a7 1A-1, Rules 12, 41, and 56 (2005). Rule 9(j) itself, however, does not provide such a method.\nRule 9(J) unambiguously requires a trial court to dismiss a complaint if the complaint\u2019s allegations do not facially comply with the rule\u2019s heightened pleading requirements. Additionally, this Court has determined \u201cthat even when a complaint facially complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery subsequently establishes that the statement is not supported by the facts, then dismissal is likewise appropriate.\u201d Ford v. McCain, 192 N.C. App. 667, 672, 666 S.E.2d 153, 157 (2008); McGuire v. Riedle, 190 N.C. App. 785, 787, 661 S.E.2d 754, 757-58 (2008). In considering whether a plaintiff\u2019s Rule 9Q) statement is supported by the facts, \u201ca court must consider the facts relevant to Rule 9Q) and apply the law to them.\u2019 \u201d McGuire, 190 N.C. App. at 787, 661 S.E.2d at 757 (quoting Phillips v. A Triangle Women\u2019s Health Clinic, Inc., 155 N.C. App. 372, 376, 573 S.E.2d 600, 603 (2002)). In such a case, this Court does not \u201cinquire as to whether there was any question of material fact,\u201d nor do we \u201cview the evidence in the light most favorable\u201d to the plaintiff. Id. at 787-88, 661 S.E.2d at 757. Rather, \u201c \u2018our review of Rule 9(j) compliance is de novo, because such compliance clearly presents a question of law ....\u2019\u201d Id. (quoting Smith v. Serro, 185 N.C. App. 524, 527, 648 S.E.2d 566, 568 (2007)).\nThis Court\u2019s holding in McGuire eviscerates Plaintiff\u2019s contention that, by considering matters outside the pleadings in ruling on Defendants\u2019 9 March 2007 motion, the trial court converted that motion into one for summary judgment. In McGuire, the defendants filed \u201cmotions to dismiss based on Rule 9(j),\u201d and the trial court \u201centered an order dismissing the suit for failure to comply with Rule 9(j).\u201d 190 N.C. App. at 786, 661 S.E.2d at 756-57. On appeal, the plaintiff argued \u201cthat because the trial court considered matters outside the pleadings in reaching its decision, defendants\u2019 motions to dismiss based on Rule 90) violations were converted to . . . Rule 56 summary judgment motion[s].\u201d Id. at 787, 661 S.E.2d at 757. Therefore, the plaintiff argued, this Court should review the evidence in the light most favorable to the plaintiff to determine whether there was any genuine issue of material fact. See Diggs v. Novant Health, Inc., 177 N.C. App. 290, 294, 628 S.E.2d 851, 855 (2006) (stating that, in reviewing an order granting summary judgment, this Court \u201cview[s] the evidence in the light most favorable to the nonmoving party\u201d) (citing Falk Integrated Techs., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999)), disc. review denied, 361 N.C. 426, 648 S.E.2d 209 (2007). We rejected the plaintiff\u2019s argument, stating that \u201c \u2018our review of Rule 90) compliance is de novo, because such compliance clearly presents a question of law ....\u2019\u201d McGuire, 190 N.C. App. at 787, 661 S.E.2d at 757 (quoting Serro, 185 N.C. App. at 527, 648 S.E.2d at 568). Accordingly, we hold that Judge Massey did not convert Defendants\u2019 9 March 2007 motion into a motion for summary judgment by considering matters outside the pleadings. McGuire, 190 N.C. App. 787, 661 S.E.2d 754.\nIn reaching this result, we note that Plaintiff only cites King v. Durham County Mental Health Developmental Disabilities & Substance Abuse Authority, 113 N.C. App. 341, 439 S.E.2d 771, disc. review denied, 336 N.C. 316, 445 S.E.2d 396 (1994), in support of his argument that Judge Massey converted Defendants\u2019 9 March 2007 motion into a motion for summary judgment. This authority is unavailing as King merely stands for the well-established principle that a trial court converts a Rule 12(b)(6) motion into a Rule 56 motion by considering matters outside the pleadings. Moreover, even assuming arguendo that Judge Massey,converted Defendants\u2019 motion into one for summary judgment, but see McGuire, 190 N.C. App. 787, 661 S.E.2d 754, we conclude that Judge Albright did not overrule Judge Massey\u2019s order. The issue raised by Defendants\u2019 9 March 2007 motion and presented to Judge Massey was\nwhether it was \u2018reasonably expected\u2019 that the witness[es] 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 [es] would qualify as . . . expert[s] under Rule 702.\nTrapp, 129 N.C. App. at 241, 497 S.E.2d at 711 (footnote omitted). The issue raised by Defendants\u2019 29 March 2007 motion and presented to Judge Albright was whether Plaintiff\u2019s witnesses in fact qualified as experts under Rule 702. See id. (concluding that \u201calthough the trial court ultimately resolved the Rule 702 issue against the plaintiff, there [was] ample evidence in [the] record that a reasonable person armed with the knowledge of the plaintiff at the time the pleading was filed would have believed that [its expert] would have qualified as an expert under Rule 702\u201d). Accordingly, Plaintiff\u2019s assignment of error is overruled.\nSecond, Plaintiff argues that the trial court erred in granting summary judgment on Plaintiff\u2019s claim that Defendants were negligent in failing to transfer Drake to another facility following the second surgery. This argument lacks merit.\nIn his deposition testimony, Dr. Raptoulis repeatedly asserted that Defendants breached the standard of care by (1) failing to accurately interpret Drake\u2019s echocardiograms, (2) failing to order an echocardiogram before the first surgery, and (3) failing to order TEEs. In his affidavit filed after his deposition, however, Dr. Raptoulis added the additional allegation that Defendants breached the standard of care by failing to transfer Drake to another hospital following the s\u00e9cond surgery and that this failure caused Drake\u2019s death. Even if the trial court erred in striking this portion of Dr. Raptoulis\u2019 affidavit, the affidavit is plainly inconsistent with his prior sworn testimony and does not create a genuine issue of fact concerning Plaintiff\u2019s failure to transfer claim. Pinczkowski v. Norfolk S. Ry. Co., 153 N.C. App. 435, 440, 571 S.E.2d 4, 7 (2002) (\u201c[A] party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.\u201d). For his part, Dr. Mosca never stated in his affidavit or his deposition testimony that Defendants breached the standard of care by failing to transfer Drake to another facility. In fact, Dr. Mosca testified in his deposition that \u201cthere is [no] standard of care\u201d on the issue. Accordingly, there was no evidence before the trial court that Defendants breached the standard of care by failing to transfer Drake to another hospital, and the trial court, therefore, did not err in granting summary judgment on this issue. This assignment of error is overruled.\nThird, Plaintiff argues that the trial court erred in granting summary judgment on all claims which depended on Dr. Raptoulis\u2019 testimony that Dr. Hines was negligent in failing to order a TEE during or after the first surgery or during the second surgery. Although Plaintiff concedes that Dr. Raptoulis, a cardiologist, did not specialize in the same specialty as Dr. Hines, a cardiothoracic surgeon, Plaintiff maintains that Dr. Raptoulis should have been allowed to testify because he specialized in a similar specialty and was therefore qualified to testify under Rule 702. Under Rule 702, however, a plaintiff\u2019s expert is not qualified to offer testimony merely because the expert specializes in a similar specialty as the defendant. The expert\u2019s specialty must also \u201cinclude [] 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) (2005). The procedures that are the subject of the complaint in this case are the surgeries performed by Dr. Hines, including diagnostic procedures incident to the surgeries. Dr. Raptoulis acknowledged in his deposition that he has \u201cnever performed the procedures that are at issue in this case[.]\u201d Because Dr. Raptoulis has never performed the relevant surgical procedures, he was not qualified to testify that those procedures were performed incorrectly. This assignment of error is overruled.\nFourth, Plaintiff argues that the trial court erred in striking that portion of Dr. Raptoulis\u2019 affidavit related to Dr. Covitz and in granting summary judgment on his claims based on the alleged negligence of Dr. Covitz. Plaintiff does not cite any authority in support of this argument, and, thus, this assignment of error is deemed abandoned. N.C. R. App. P. 28(b)(6); see also James River Equip., Inc. v. Mecklenburg Utils., Inc., 179 N.C. App. 414, 420, 634 S.E.2d 557, 561 (2006) (\u201c[P]laintiff has cited no authority in support of its argument, and thus has abandoned this assignment of error.\u201d), appeal dismissed and disc. review denied, 361 N.C. 355, 644 S.E.2d 226 (2007).\nIII. TRIAL ISSUES\nPlaintiff contends that the trial court committed four errors at trial. First, Plaintiff argues that the trial court erred in limiting Dr. Raptoulis\u2019 trial testimony. Plaintiff does not cite any authority' in support of this argument and, thus, as discussed supra, this assignment of error is deemed abandoned.\nSecond, Plaintiff argues that the trial court erred by \u201cin effect granting a directed verdict during the presentation of . . . Plaintiff\u2019s case and dismissing all of Plaintiff\u2019s negligence claims except for the lack of informed consent claim.\u201d We agree with Defendants that this argument mischaracterizes the trial court\u2019s action. In limiting Dr. Raptoulis\u2019 trial testimony, the court found under Rule 702 that Dr. Raptoulis was not qualified to offer standard of care testimony concerning claims based on Dr. Hines\u2019 alleged negligence in the performance of the surgeries. As discussed in Part II.B above, it is undisputed that Dr. Raptoulis has never performed the surgical procedures that are the subject of the complaint. Accordingly, Dr. Raptoulis was not qualified to testify that Dr. Hines breached the standard of care in performing those surgeries. This assignment of error is overruled.\nThird, Plaintiff argues that the trial court erred in entering a directed verdict in favor of Defendants on Plaintiff\u2019s claim for punitive damages against the corporate Defendants. We disagree.\nWhen ruling on a motion for a directed verdict, a trial court \u201cmust view the evidence in the light most favorable to the nonmovant, resolving all conflicts in his favor and giving him the benefit of every inference that could reasonably be drawn from the evidence in his favor.\u201d West v. Slick, 313 N.C. 33, 40, 326 S.E.2d 601, 605 (1985). The trial court may only grant the motion if \u201cthe evidence, when so considered, is insufficient to support a verdict in the nonmovant\u2019s favor[.]\u201d Id. at 40, 326 S.E.2d at 606. We review atrial court\u2019s ruling on a motion for a directed verdict de novo. Yorke v. Novant Health, Inc., 192 N.C. App. 340, 351, 666 S.E.2d at 135.\nPunitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:\n(1) Fraud.\n(2) Malice.\n(3) Willful or wanton conduct.\nN.C. Gen. Stat. \u00a7 1D-I5(a) (2005). Punitive damages may be awarded against a corporation only if \u201cthe. officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.\u201d N.C. Gen. Stat. \u00a7 1D-I5(c) (2005).\nPlaintiff asserts in his brief that \u201ca physician who is head of a treatment team is tantamount to a manager\u201d within the meaning of G.S. 1D-I5(c). Plaintiff acknowledges that there is no authority in this jurisdiction which supports this assertion. Assuming arguendo that Dr. Hines was the head of Drake\u2019s treatment team, and further assuming that the head of a treatment team is a manager within the meaning of G.S. 1D-I5(c), we conclude that Plaintiff cannot show that the entry of directed verdict on the claim for punitive damages against the corporate Defendants was prejudicial. The jury did not find that Dr. Hines was negligent. In the absence of such a finding, Plaintiff\u2019s claim for punitive damages against the corporate Defendants necessarily fails. N.C. Gen. Stat. \u00a7 1D-I5(c). This assignment of error is overruled.\nFinally, Plaintiff argues that the trial court erred in denying Plaintiff\u2019s request for a special jury instruction on the issue of informed consent and in instructing the jury as it did on that issue. We conclude that Plaintiff has not properly presented this issue for appellate review.\nTo present an alleged instructional error for appellate review, the party asserting error must include in the record on appeal \u201ca transcript of the entire charge given[.]\u201d N.C. R. App. P. 9(a)(1)(f); N.C. R. App. P. 9(c). \u201cWhile this rule may seem quite technical, it serves an important practical purpose: it facilitates review of an instruction issue by all three members of our panel in that the parties file but a single copy of the trial transcript, but all three members receive the printed record.\u201d Campbell v. McIlwain, 163 N.C. App. 553, 555, 593 S.E.2d 799, 801 (2004). In this case, the record on appeal does not include a transcript of the entire charge, and the charge is inexplicably absent from the verbatim, certified transcript of the trial proceedings. The trial transcript only includes those instructions the trial court gave in response to jury questions. Admittedly, the trial court repeated its instruction on the issue of informed consent in response to a jury question. However, in light of our duty to review a jury charge \u201ccontextually and in its entiretyf,]\u201d Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002), and an appellant\u2019s duty to demonstrate that an instructional error \u201c \u2018was likely, in light of the entire charge, to mislead the jury[,]\u2019 \u201d id. (emphasis added) (quoting Robinson v. Seaboard Sys. R.R., Inc., 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988)), this portion of the transcribed charge is insufficient to allow us to properly review Plaintiff\u2019s assigned error. Accordingly, this assignment of error is overruled.\nIV. CONCLUSION\nFor the foregoing reasons, this case is reversed and remanded to the trial court with instructions to conduct a voir dire examination of Dr. Mosca and, based on this evidentiary foundation, to determine the admissibility of his testimony. Crocker, 363 N.C. at 153, 675 S.E.2d at 635 (Martin, J., concurring). If the trial court determines that Dr. Mosca should be allowed to offer his opinion to the jury, the trial court is instructed to conduct a new trial in this matter.\nREVERSED AND REMANDED.\nChief Judge MARTIN and Judge McGEE concur.\n. Dr. Covitz was never a named Defendant in this action.\n. But see Part HA, below.\n. Judge Albright stated that he was \u201chaving a hard time\u201d with Dr. Mosca\u2019s deposition testimony, which he described as \u201ctroubling\u201d and \u201cproblematic[.]\u201d\n. As stated in the footnote to Justice Newby\u2019s dissent in Crocker, Justice Martin\u2019s concurring opinion, \u201chaving the narrower directive, is the controlling opinion . . . and requires the trial court to conduct a voir dire examination of the proffered expert witness.\u201d Crocker, 363 N.C. at 154, n.1, 675 S.E.2d at 635 n.1 (Newby, J., dissenting) (citation omitted).", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harvey L. Kennedy and Harold L. Kennedy, III, for Plaintiff-Appellant.", "Wilson & Coffey, L.L.P., by Tamura D. Coffey, J. Chad Bomar, and Lorin J. Lapidus, for Defendants-Appellees." ], "corrections": "", "head_matter": "DERRICK BARRINGER, as Administrator of the Estate of DRAKE BARRINGER, Plaintiff v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, MICHAEL H. HINES, MD, WAKE FOREST UNIVERSITY PHYSICIANS, NORTH CAROLINA BAPTIST HOSPITAL, and WAKE FOREST UNIVERSITY, Defendants\nNo. COA08-269\n(Filed 2 June 2009)\n1. Medical Malpractice\u2014 doctor\u2019s affidavit \u2014 stricken\u2014no prejudice\nThe trial court .did not abuse its discretion by striking a doctor\u2019s affidavit in a medical malpractice action where plaintiff did not show prejudice; on the contrary, plaintiff stated that the affidavit simply re-affirmed the expert opinions previously set forth in a deposition.\n2. Medical Malpractice\u2014 proposed expert \u2014 basis of opinion-undeveloped\nA medical malpractice case was remanded for a voir dire to determine the admissibility of a proposed medical expert\u2019s testimony where the basis of the doctor\u2019s opinion that defendants breached the standard of care was undeveloped.\n3. Medical Malpractice\u2014 motion to compel discovery denied\u2014 no basis stated \u2014 presumptions\u2014no abuse of discretion\nThe trial court did not abuse its discretion in a medical malpractice action by denying plaintiff\u2019s motions to compel discovery. The record was completely silent as to the basis for the denial and the court is presumed to have made findings supported by competent evidence and orders supported by the findings.\n4. Medical Malpractice\u2014 Rule 9(j) \u2014 procedural mechanism\nIt was noted in a medical malpractice action that Rule 9(j) does not provide a procedural mechanism for a defendant to file a motion to dismiss; the Rules of Civil Procedure provide other methods by which a defendant may allege a violation of Rule 9(j).\n5. Medical Malpractice\u2014 Rule 9(j) \u2014 summary judgment\nOne superior court judge did not overrule another by granting summary judgment for defendants on a medical malpractice claim pursuant to Rule 9(J) where a first judge had previously denied a motion to dismiss under Rule 9(j). Compliance with Rule 9(j) presents a question of law, and the first judge did not convert the motion into one for summary judgment by considering matters outside the pleadings. .Moreover, even if the first motion became one for summary judgment, the issue there was whether the witnesses were reasonably expected to qualify as experts while the issue in the second motion was whether the witnesses in fact qualified as experts.\n6. Medical Malpractice\u2014 not transferring patient \u2014 summary judgment\nThe trial court did not err in a medical malpractice action by granting summary judgment for defendants on a claim of negligence in not transferring a patient to another facility. This allegation was added in an affidavit after the witness\u2019s deposition, is inconsistent with the prior sworn testimony, and does not create a genuine issue of fact. Moreover, plaintiff\u2019s other expert testified that there was no standard of care on the issue of transferring the patient to another hospital.\n7. Medical Malpractice\u2014 plaintiffs expert \u2014 no personal experience of procedures \u2014 not qualified to testify\nThe trial court did not err in a medical malpractice action by granting summary judgment for defendants on claims which depended upon expert testimony that Dr. Hines was negligent in failing to order a particular test. Plaintiff\u2019s expert had never performed the relevant surgical procedures and was not qualified to testify that those procedures were performed incorrectly.\n8. Appeal and Error\u2014 assignments of error \u2014 not supported by authority \u2014 abandoned\nAssignments of error not supported by authority were deemed abandoned.\n9. Medical Malpractice\u2014 doctor\u2019s testimony limited \u2014 not effectively a directed verdict\nPlaintiff mischaracterized the court\u2019s action in a medical malpractice claim as effectively granting a directed verdict when the court limited the testimony of a doctor regarding certain claims. It was undisputed that the witness had never performed the procedures in question and was not qualified to testify that the standard of care had been breached.\n10.Medical Malpractice\u2014 punitive damages \u2014 corporate defendant \u2014 directed verdict\nThere was no prejudice in a medical malpractice action where the-trial court entered a directed verdict for defendants on plaintiffs claim for punitive damages against the corporate defendants; even if the physician was the head of the treatment team, and even if the head of the treatment team-was a manager, the jury did not find that the physician was negligent.\n11. Appeal and Error\u2014 record \u2014 entire instruction not included\nAn assignment of error concerning the denial of a request for a special instruction was not properly presented for appellate review where the record did not include a transcript of the entire charge. This is important because the record is received by all three members of the Court of Appeals panel, while the only single copy of the transcript is filed. Even though the record in this case contained the instruction given in response to a jury question, this portion of the charge was not sufficient to allow review of the charge in its entirety.\nAppeal by Plaintiff from orders entered 8 September 2006 and 22 March 2007 by Judge A. Moses Massey; from order entered 18 May 2007 by Judge R. Stuart Albright; and from judgment entered 13 June 2007 by Judge R. Stuart Albright in Forsyth County Superior Court. Heard in the Court of Appeals 6 October 2008.\nKennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harvey L. Kennedy and Harold L. Kennedy, III, for Plaintiff-Appellant.\nWilson & Coffey, L.L.P., by Tamura D. Coffey, J. Chad Bomar, and Lorin J. Lapidus, for Defendants-Appellees." }, "file_name": "0238-01", "first_page_order": 268, "last_page_order": 291 }