{ "id": 4348724, "name": "RONALD CROCKER and PAULETTE CROCKER as Co-Administrators of the Estate of REAGAN ELIZABETH CROCKER, Plaintiffs v. H. PETER ROETHLING, M.D. and WAYNE WOMEN'S CLINIC, P.A., Defendants", "name_abbreviation": "Crocker v. Roethling", "decision_date": "2011-11-15", "docket_number": "No. COA10-1214", "first_page": "160", "last_page": "165", "citations": [ { "type": "official", "cite": "217 N.C. App. 160" } ], "court": { "name_abbreviation": "N.C. Ct. 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App.", "year": 2007, "opinion_index": 0 } ], "analysis": { "cardinality": 709, "char_count": 14079, "ocr_confidence": 0.729, "pagerank": { "raw": 4.858209809197704e-08, "percentile": 0.3062116748891538 }, "sha256": "5edced097ebf7d9d27b49104d40d54592cd8a999c8b956c1da0243deffca75d8", "simhash": "1:9ffe4c74f5265572", "word_count": 2255 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCGEE and STROUD concur." ], "parties": [ "RONALD CROCKER and PAULETTE CROCKER as Co-Administrators of the Estate of REAGAN ELIZABETH CROCKER, Plaintiffs v. H. PETER ROETHLING, M.D. and WAYNE WOMEN\u2019S CLINIC, P.A., Defendants" ], "opinions": [ { "text": "BEASLEY, Judge.\nRonald and Paulette Crocker, as co-administrators of the Estate of Regan Elizabeth Crocker, (Plaintiffs) appeal from the trial court\u2019s \u2022 grant of summary judgment to H. Peter Roethling, M.D. (Dr. Roethling) and Wayne Women\u2019s Clinic, P.A. (the clinic). For the following reasons, we affirm.\nOn 14 September 2001, Paulette Crocker (Mrs. Crocker) was admitted to Wayne Memorial Hospital (Wayne Memorial) for an induction of labor. Delivery was complicated by shoulder dystocia, an obstetrical emergency where the fetal shoulder becomes impacted against the maternal pubic bone. A procedure that obstetricians can perform to relieve this condition is the Zavanelli maneuver, where the fetal head is pushed back into the vagina and uterus, and the fetus is delivered by cesarean section. Dr. Roethling attempted several maneuvers to relieve the shoulder dystocia, but did not try the Zavanelli maneuver. Plaintiffs\u2019 infant daughter, Reagan Elizabeth Crocker, died on 28 September 2003 from injuries that she sustained during delivery.\nOn 9 September 2004, Plaintiffs filed a medical malpractice action against Dr. Roethling and the clinic (collectively Defendants). Dr. John Elliott, an Obstetrician/Gynecologist who specializes in high risk obstetrics, served as the sole expert witness for Plaintiffs. He contended that Dr. Roethling violated the applicable standard of care by not attempting the Zavanelli maneuver. Defendants moved for summary judgment on the basis that Dr. Elliott was incompetent to testify as an expert witness. The trial court granted summary judgment to Defendants on I March 2006. Plaintiffs appealed and this Court twice affirmed the order granting summary judgment. See Crocker v. Roethling (Crocker I), 182 N.C. App. 528, 642 S.E.2d 549 (2007), aff'd on reh\u2019g, 184 N.C. App. 377, 646 S.E.2d 442 (2007) (unpublished). On discretionary review, our Supreme Court voted to remand for a voir dire examination of Plaintiffs\u2019 expert to determine the admissibility of the proposed expert testimony. Crocker v. Roethling (Crocker II), 363 N.C. 140, 675 S.E.2d 625 (2009).\nOn 23 February 2010, the trial court held the voir dire hearing. Dr. Elliott stated that for 27 years he had practiced high risk obstetrics in Maricopa County, Arizona, an area with a population of approximately 4.5 million. He further testified that he had neither performed nor witnessed a Zavanelli maneuver, and was unaware of any of the other 14 high risk obstetricians in his practice ever having performed this maneuver. He also did not know whether a Zavanelli maneuver had ever been performed either in Goldsboro, or anywhere else in the state of North Carolina. However, based on his practice, his experiences as an expert witness reviewing approximately 600 malpractice cases from 45 states, and his belief \u201cthat there is a national standard of care for most things,\u201d Dr. Elliott stated that he was familiar with the standards of practice of a physician practicing in a hospital such as Wayne Memorial.\nUpon the conclusion of voir dire, the trial court ruled that the expert was incompetent to testify and granted summary judgment to Defendants.\nI.\nTo prevail in a medical malpractice action, the plaintiff must show \u201c(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.\u201d Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998).\nPlaintiffs\u2019 burden with respect to the applicable standard of care is to show by the greater weight of the evidence that Dr. Roethling\u2019s care \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 (2009). To satisfy this burden, \u201cplaintiff must establish the relevant standard of care through expert testimony.\u201d Smith v. Whitmer, 159 N.C. App. 192, 195, 582 S.E.2d 669, 672 (2003). \u201cAlthough it is not necessary for the witness testifying ... to have actually practiced in the same community as the defendant, the witness must demonstrate that he is familiar with the standard of care in the community ... or the standard of care of similar communities.\u201d Id. at 196, 582 S.E.2d at 672 (internal citations-omitted). If Plaintiffs are unable to satisfy this burden, summary judgment is properly granted. Purvis v. Moses H. Cone Mem\u2019l Hosp. Serv. Corp., 175 N.C. App. 474, 478, 624 S.E.2d 380, 384 (2006).\n\u201c[T]he decision whether to admit expert testimony lies within the province of the trial court.\u201d Crocker II, 363 N.C at 155, 675 S.E.2d at 636 (citing N.C. Gen Stat. \u00a7 8C-1, Rule 104(a)). Accordingly, \u201ca trial court\u2019s ruling on the qualifications of an expert or the admissibility of an expert\u2019s opinion will not be reversed on appeal absent a showing of abuse of discretion.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597, S.E.2d 674, 686 (2004).\nThis Court has stated that the \u201csimilar community\u201d standard with regards to the standard of care in medical malpractice cases \u201cencompasses more than mere physician skill and training[.] It also encompasses variations in facilities, equipment, funding, and also the physical and financial environment of a particular community.\u201d Pitts v. Nash Day Hosp., Inc., 167 N.C. App. 194, 201, 605 S.E.2d 154, 159 (2004) (internal quotation marks and citations omitted). Dr. Elliott practices mainly at larger hospitals, one of which performs more than 6,000 deliveries per year, and is located in a metropolitan area with a population of 4.5 million people served by some 200 obstetricians. That hospital hardly seems comparable to Wayne County, and Goldsboro, with a population of approximately 100,000. Wayne Memorial has six labor and delivery suites compared to 36 at Dr. Elliott\u2019s tertiary referral hospital. While Dr. Elliott did claim to have familiarity with smaller hospitals similar to Wayne Memorial based on outreach education and consulting privileges, he never practiced medicine at these hospitals.\nFurther, Dr. Elliott has never performed a Zavanelli maneuver. He has never witnessed the maneuver. He was unaware of any of the other 14 high risk obstetricians with whom he practices ever having performed it. He did not know whether a Zavanelli maneuver had ever been performed either in Goldsboro or, for that matter, in the state of North Carolina. Quite simply, Dr. Elliott failed to demonstrate that this rarely-employed maneuver is the standard of care in Goldsboro, North Carolina.\nDr. Elliott argued that there is a national standard of care for shoulder dystocia, but that argument is unavailing. When the standard of care for a given procedure is \u201cthe same across the country, an expert witness familiar with that standard may testify despite his lack of familiarity with the defendant\u2019s community.\u201d Haney v. Alexander, 71 N.C. App 731, 736, 323 S.E.2d 430, 434 (1984). \u201cThis Court, however, has recognized very few \u2018uniform procedures\u2019 to which a national standard may apply, and to which an expert may testify.\u201d Henry v. Southeastern Ob-Gyn Assocs., P.A., 145 N.C. App. 208, 211, 550 S.E.2d 245, 247 (2001). This Court has been particularly reluctant to find a national standard for especially complex procedures. A national standard of care cannot be applied to this case because \u201can infant suffering from shoulder dystocia . . . involves medical procedures considerably more complicated than the taking of vital signs or the placement of bedpans.\u201d Id. We conclude that there is ample support in the record for a finding that Dr. Elliott was not qualified to testify in this case. The trial court, therefore, did not abuse its discretion in excluding his testimony.\nII.\nPlaintiffs next argue that the trial court exceeded the scope of the mandate from the Supreme Court in Crocker II by granting Defendants\u2019 motion for summary judgment. We disagree.\nIt is well settled that upon appeal, a mandate from our Supreme Court is binding upon trial courts, and \u201cmust be strictly followed without variation or departure.\u201d D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966). However, it is equally clear that \u201c[e]xpressions contained in an appellate court decision must be interpreted in the context of the factual situation under review, or the framework of the particular case.\u201d Campbell v. Church, 51 N.C. App. 393, 394, 276 S.E.2d 712, 713 (1981) (citations omitted).\nPlaintiffs assert that the majority opinion in Crocker II remanded the case to the trial court only for a voir dire examination of Dr. Elliott, and so the trial court went too far in granting summary judgment to Defendants after finding Dr. Elliott was not properly qualified as an expert. Plaintiffs fail to recognize that the order the Supreme Court reviewed was one granting summary judgment to Defendants, and so this was the order that remained pending on remand. The Supreme Court instructed the trial court to conduct a voir dire to determine if Dr. Elliott\u2019s testimony should in fact be admitted. Once the voir dire was done, and the trial court affirmed its earlier decision to exclude the testimony, it was proper for the trial court to also re-issue the grant of summary judgment to Defendants. Plaintiffs\u2019 argument is overruled.\nIII.\nPlaintiffs also claim that the trial court erred in holding that the law of the case doctrine required summary judgment be granted for Defendants. We disagree.\nThere is no evidence in the record that the trial court applied the law of the case doctrine in order to find that Defendants were entitled to summary judgment. As discussed in Section II, supra, the record shows that after review, including a voir dire hearing, the trial court determined that Dr. Elliott\u2019s expert testimony was properly excluded and accordingly again granted summary judgment to Defendants. Dr. Elliott was Plaintiffs\u2019 only expert witness, and so Plaintiffs could not make out their prima facie case without his testimony. The trial court\u2019s statement that Defendants\u2019 motion for summary judgment \u201cwill, of course, have to be granted\u201d is not evidence that the trial court felt compelled by the law of the case doctrine to so hold. It is more properly interpreted as the trial court\u2019s recognition that since Dr. Elliott\u2019s testimony was properly excluded, the grant of summary judgment was properly entered previously.\nIV.\nPlaintiffs\u2019 final argument is that the trial court\u2019s grant of summary judgment was improper, because Plaintiffs did not receive ten days\u2019 notice of Defendants\u2019 motion for summary judgment. This argument is without merit.\nThis Court has held that \u201cby attending the hearing and participating without objection\u201d a plaintiff waives the ten day procedural notice otherwise required for a summary judgment hearing by N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c). Anderson v. Anderson, 145 N.C. App. 453, 456-57, 550 S.E.2d 266, 269 (2001). It is uncontroverted that Plaintiff participated in the summary judgment hearing, and that Plaintiffs\u2019 counsel neither objected nor moved for a continuance. As such, Plaintiffs have waived this argument.\nAffirmed.\nJudges MCGEE and STROUD concur.\n. Because it had the narrower holding, Justice Martin\u2019s opinion controlled. See Crocker II, 363 N.C. at 154 n.1, 675 S.E.2d at 635 n.1 (Newby, J., dissenting).", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Law Offices of Wade E. Byrd, P.A., by Wad\u00e9 E. Byrd, for Plaintiffs-Appellants.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Samuel G. Thompson, William H. Moss, and Robert E. Desmond, for Defendants-Appellees." ], "corrections": "", "head_matter": "RONALD CROCKER and PAULETTE CROCKER as Co-Administrators of the Estate of REAGAN ELIZABETH CROCKER, Plaintiffs v. H. PETER ROETHLING, M.D. and WAYNE WOMEN\u2019S CLINIC, P.A., Defendants\nNo. COA10-1214\n(Filed 15 November 2011)\n1. Medical Malpractice \u2014 expert witness \u2014 summary judgment\nThe trial court did not abuse its discretion in a medical malpractice action by excluding plaintiffs sole expert witness where there was ample support in the record for a finding that the witness was not qualified to testify. While the witness claimed on voir dire to have familiarity with smaller hospitals similar to Wayne Memorial, he had never practiced at these hospitals, he did not demonstrate that the rarely performed maneuver at issue in this case was the standard of care in Goldsboro, and a national standard of care cannot be applied to this case, contrary to the witness\u2019s testimony.\n2. Appeal and Error \u2014 remand\u2014scope\u2014not exceeded\nThe trial court did not exceed the scope of a remand from the North Carolina Supreme Court by granting defendants\u2019 motion for summary judgment. Plaintiffs asserted that the remand was only for a voir dire examination of their expert witness, but plaintiffs did not recognize that the Supreme Court was reviewing a summary judgment for defendants. Once the voir dire was done and the trial court affirmed its earlier decision to exclude the testimony, it was proper for the court to reissue the summary judgment for defendant.\n3. Trials \u2014 remand\u2014law of the case \u2014 not applied\nContrary to plaintiffs\u2019 contention, the trial court in a medical malpractice case did not hold on remand that the law of the case doctrine required that summary judgment be granted for defendants. The court\u2019s statement that summary judgment would have to be granted referred to the exclusion of plaintiffs' only expert witness after the voir dire required by the remand.\n4. Appeal and Error \u2014 preservation of issues \u2014 summary judgment \u2014 notice\u2014appearance at hearing\nPlaintiffs waived any argument on appeal that they did not receive proper notice of defendants\u2019 motion for summary judgment by participating in the summary judgment hearing and not objecting or moving for a continuance.\nAppeal by Plaintiffs from order entered 23 February 2010 by Judge W. Russell Duke, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 12 April 2011.\nLaw Offices of Wade E. Byrd, P.A., by Wad\u00e9 E. Byrd, for Plaintiffs-Appellants.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Samuel G. Thompson, William H. Moss, and Robert E. Desmond, for Defendants-Appellees." }, "file_name": "0160-01", "first_page_order": 170, "last_page_order": 175 }