{ "id": 6815714, "name": "JEFFREY HIGGINBOTHAM, Plaintiff v. THOMAS A. D'AMICO, M.D., and DUKE UNIVERSITY HEALTH SYSTEM, INC., Defendants", "name_abbreviation": "Higginbotham v. D'Amico", "decision_date": "2013-04-16", "docket_number": "No. COA12-1099", "first_page": "441", "last_page": "448", "citations": [ { "type": "official", "cite": "226 N.C. App. 441" } ], "court": { "name_abbreviation": "N.C. Ct. 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Stat. \u00a7 90-21.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "189 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156716 ], "weight": 2, "pin_cites": [ { "page": "334" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0331-01" ] } ], "analysis": { "cardinality": 802, "char_count": 16759, "ocr_confidence": 0.72, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18306897429155136 }, "sha256": "a38718044b1b3f77aa3f56dd9e541d8e0acb6e3d1fc341496834d843a784c912", "simhash": "1:7cacc72a16054564", "word_count": 2668 }, "last_updated": "2023-07-14T18:05:47.059681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and DILLON concur." ], "parties": [ "JEFFREY HIGGINBOTHAM, Plaintiff v. THOMAS A. D\u2019AMICO, M.D., and DUKE UNIVERSITY HEALTH SYSTEM, INC., Defendants" ], "opinions": [ { "text": "STEPHENS, Judge.\nProcedural History and Factual Background\nThis appeal arises from a professional liability case brought by Plaintiff Jeffrey Higginbotham, a former patient of Defendant Thomas A. D\u2019Amico, M.D., a board-certified thoracic surgeon employed by Defendant Duke University Health System, Inc. (\u201cDuke\u201d). Plaintiff brought a civil action against Defendants, alleging medical malpractice, battery by performance of an unauthorized operation, and failure to obtain informed consent for a medical procedure, all of which led to serious injury. By order entered 19 September 2011, the trial court granted summary judgment to Defendants on the batteiy claim. The informed consent claim was dismissed by the trial court on 13 December 2011. At the close of Plaintiff\u2019s case on Defendants\u2019 alleged medical malpractice, the trial court granted Defendants\u2019 motion for a directed verdict in their favor. Plaintiff appeals from the directed verdict judgment and the order granting summary judgment in favor of Defendants on the battery claim.\nIn 2004, Plaintiff lived in Charleston, West Virginia, and drove a delivery truck. Plaintiff began experiencing pain and numbness in his left arm. Failing to receive a satisfactory diagnosis from several West Virginia physicians, Plaintiff was referred to a major medical center and chose Duke. At Duke, Plaintiff was diagnosed with thoracic outlet syndrome (\u201cTOS\u201d), which, inter alia, indicates that the thoracic outlet above the first rib is inadequate to allow necessary nerve supply. Plaintiff was eventually referred to D\u2019Amico, whose proposed cure was to surgically remove the first rib to alleviate the nerve compression. Excision of the first rib was the procedure agreed to on the informed consent form signed by Plaintiff.\nPlaintiff\u2019s surgeiy took place on 8 October 2004 and the operative notes indicated all went as planned. However, x-rays taken after surgery showed the left second (rather than first) rib had been removed. Plaintiff was not informed of this outcome. After surgery, Plaintiff returned home. A subsequent surgical infection brought Plaintiff to a local hospital where treatment measures included an x-ray which revealed the missing second rib, much to the shock of Plaintiff. Plaintiff reported this discovery to D\u2019Amico\u2019s assistant at his first port-operative visit on 4 November 2004; D\u2019Amico was not present at the clinic that day. At a subsequent post-operative visit, D\u2019Amico told Plaintiff he needed another operation immediately, but Plaintiff declined further surgery by D\u2019Amico.\nPlaintiff\u2019s TOS symptoms were not relieved and, in addition, he suffered a long thoracic nerve injury which required daily pain medication. Ultimately, in January 2005, Richard Sanders, M.D., a vascular surgeon in Colorado, performed a surgical procedure involving a different approach which did not require removal of a rib. However, even after that surgery, Plaintiff continued to suffer pain and limited mobility of his left arm. This action ensued.\nDiscussion\nOn appeal, Plaintiff argues that the trial court erred in (1) directing a verdict in favor of Defendants on the medical malpractice claim and (2) granting summary judgment to Defendants on Plaintiff\u2019s battery claim. As to Plaintiff\u2019s first argument, we agree and reverse. We affirm summary judgment for Defendants on Plaintiff\u2019s battery claim.\nI. Directed verdict on medical malpractice claim\nPlaintiff first argues that the trial court erred in directing a verdict in favor of Defendants on Plaintiff\u2019s medical malpractice claim. We agree.\nThis Court reviews a trial court\u2019s grant of a motion for directed verdict de novo. Therefore, we must determine whether, upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence was sufficient to be submitted to the jury. When a defendant moves for a directed verdict in a medical malpractice case, the question raised is whether [the] plaintiff has offered evidence of each of the following elements of his claim for relief: (1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages.\nKerr v. Long, 189 N.C. App. 331, 334, 657 S.E.2d 920, 922 (citations, quotation marks, and brackets omitted), cert. denied, 362 N.C. 682, 670 S.E.2d 564 (2008).\nThe basis for Defendants\u2019 motion for a directed verdict was that Plaintiff\u2019s expert testified only to a \u201cnational\u201d standard of care and did not establish sufficient familiarity with Duke and Durham so as to meet the well-established requirements of section 90-21.12:\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 (2009). Where, as here, a directed verdict was granted on the basis that a doctor\u2019s testimony was to a national rather than a community standard of care,\nthe critical inquiry is whether the doctor\u2019s testimony, taken as a whole, meets the requirements of N.C. Gen. Stat. \u00a7 90-21.12. In making such a determination, a court should consider whether an expert is familiar with a community that is similar to a defendant\u2019s community in regard to physician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community.\nPitts v. Nash Day Hosp., Inc., 167 N.C. App. 194, 197, 605 S.E.2d 154, 156 (2004) (citation omitted; emphasis added), affirmed per curiam, 359 N.C. 626, 614 S.E.2d 267 (2005). The mere use of the phrase \u201cnational standard of care\u201d is not fatal to an expert\u2019s testimony if the expert\u2019s testimony otherwise meets the demands of section 90-21.12. Id.\nIn the alternative, \u201c[w]here the standard of care is the 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), cert. denied, 313 N.C. 329, 327 S.E.2d 889 (1985); see also Cox v. Steffes, 161 N.C. App. 237, 244, 587 S.E.2d 908, 913 (2003), disc. review denied, 358 N.C. 233, 595 S.E.2d 148 (2004). For example, in Cox, the expert\ntestified that the standard of care at issue in th[at] case was in fact the same across the nation. As to post-operative care, [the expert] first testified, \u201cI think it is universally accepted the standard of care.\u201d He then agreed more specifically that with respect to post-operative care \u201cthe standard of care applicable for that would be the same across the US in 1994 for any board-certified surgeonf.]\u201d\nId. (alteration in original).\nHere, Plaintiff\u2019s expert, Robert Streisand, M.D., a vascular and thoracic surgeon from New York, repeatedly used the phrase \u201cnational standard of care\u201d in his testimony. As noted repeatedly by the appellate courts of this State, use of this phrase in and of itself does not prevent a medical expert\u2019s testimony from meeting the standard set forth in section 90-21.12. See, e.g., Pitts, 167 N.C. App. at 197, 605 S.E.2d at 156. Rather, we must consider whether, taking his testimony as a whole, Streisand evinced familiarity with Duke \u201cin regard to physician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community\u201d or testified that the standard of care was the same across the United States. Id.; Haney, 71 N.C. App. at 736, 323 S.E.2d at 434. After careful review, we conclude that, taken as a whole, Streisand\u2019s testimony met the requirements of section 90-21.12.\nStreisand testified that Duke \u201chad a fine reputation as a medical institution.\u201d He further opined that the standard of care at Duke would be \u201cthe national standard of care that\u2019s applied to all finer institutions.\u201d Streisand went on to describe the standard of care for Duke as the same as that at UCLA and Johns Hopkins: \u201cthe top level of teaching hospitals in urban settings.\u201d Streisand also agreed that Duke, like UCLA and Johns Hopkins and \u201cother major university hospitals[,]\u201d would have the \u201chighest standard of care of the best hospitals in the nation[.]\u201d This testimony does not suggest that Streisand was asserting a national standard of care which would be the same at hospitals in every community across the country. On the contrary, Streisand testified that the standard of care at Duke was the same as found at other \u201ctop level... teaching hospitals in urban settings\u201d and \u201cother major university hospitals],]\u201d such as UCLA and Johns Hopkins, to wit, the \u201chighest standard of care of the best hospitals in the nation[.]\u201d\nWe find this testimony analogous to that of the medical expert in Rucker v. High Point Mem\u2019l Hosp., 285 N.C. 519, 206 S.E.2d 196 (1974). In that case, the plaintiff\u2019s expert on standard of care was excluded by the trial court for the reason that he was not familiar with the medical staff and facilities at the defendant hospital. Id. at 526, 206 S.E.2d at 200. Our Supreme Court affirmed this Court\u2019s award of a new trial to the plaintiff, noting that the plaintiff\u2019s expert\ntestified he was familiar with the standards' of practice and procedures in duly accredited hospitals and that they were essentially the same throughout the United States. However, the plaintiff alleged and both defendants admitted that the defendant High Point Memorial Hospital was engaged, at all times herein mentioned, in operating and maintaining \u201ca fully accredited hospital\u201d in the City of High Point.\nId. at 526, 206 S.E.2d at 201 (emphasis omitted); accord Baynor v. Cook, 125 N.C. App. 274, 277, 480 S.E.2d 419, 421 (noting that \u201cRucker allowed an expert to testify because he was familiar with accredited hospitals across the country and that the treatment of gunshot wounds was the same at all such hospitals, not because North Carolina had adopted a national standard of care\u201d), disc. review denied, 346 N.C. 275, 487 S.E.2d 537 (1997). Thus, in Rucker, our Supreme Court specifically held that expert standard of care testimony met the requirements of section 90-21.12 where the \u201csame or similar communitfy]\u201d was a group of the defendant\u2019s peer institutions in the sense of \u201cphysician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community.\u201d Pitts, 167 N.C. App. at 197, 605 S.E.2d at 156.\nHere, instead of testifying to the standard of care at fully accredited hospitals, Streisand testified to the standard of care at top teaching hospitals associated with a major university. We observe particularly that Defendants\u2019 contention that Streisand should have been familiar with the community of Durham is entirely unconvincing. It cannot be reasonably maintained that the standard of care at Duke is better approximated by comparison to community hospitals in Durham or similarly sized cities than to other renowned, \u201ctop level teaching hospitals\u201d attached to major universities, such as UCLA and Johns Hopkins. In the light most favorable to Plaintiff, Streisand\u2019s testimony addressed the applicable standard of care at Duke. See Kerr, 189 N.C. App. at 334, 657 S.E.2d at 922. The trial court erred in concluding otherwise. Accordingly, we reverse the directed verdict granted in favor of Defendants.\nII. Summary judgment on battery claim\nPlaintiff next argues that the trial court erred in granting summary judgment to Defendants on Plaintiffs battery claim. We disagree.\nSummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A trial court\u2019s grant of summary judgment receives de novo review on appeal, and evidence is viewed in the light most favorable to the non-moving party.\nUpon a motion for summary judgment, the moving party carries the burden of establishing the lack of any triable issue and may meet his or her burden by proving that an essential element of the opposing party\u2019s claim is nonexistent. If met, the burden shifts to the nonmovant to produce a forecast of specific evidence of its ability to make a prima facie case, which requires medical malpractice plaintiffs to prove, in part, that the treatment caused the injury.\nCousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C. App. 299, 302, 704 S.E.2d 540, 542-43 (citations, quotation marks, brackets, and ellipsis omitted), disc. review denied, 365 N.C. 330, 717 S.E.2d 375 (2011).\nWhere a medical procedure is completely unauthorized, it constitutes an assault and battery, i.e., trespass to the person. .. .If, however, the procedure is authorized, but the patient claims a failure to disclose the risks involved, the cause of action is bottomed on negligence. Defendants\u2019 failure to make a proper disclosure is in the nature of malpractice (negligence) ....\nNelson v. Patrick, 58 N.C. App. 546, 550, 293 S.E.2d 829, 832 (1982) (citations omitted; emphasis added).\nBefore trial, Plaintiff moved for summary judgment on his battery claim. The trial court denied that motion. Defendants then orally moved for summary judgment on the same claim, and the trial court granted that motion.\nPlaintiff notes that among the evidence before the court on summary judgment were the depositions of D\u2019Amico.and a defense expert on consent, both acknowledging that D\u2019Amico did not have Plaintiff\u2019s consent to perform an operation removing Plaintiff\u2019s second rib. We agree with Plaintiff that this evidence exists. However, Plaintiff admits he consented to a procedure which involved removal of the first rib. Plaintiff\u2019s own expert, Streisand, specifically testified that the resection of the second rather than the first rib was \u201ca recognized complication\u201d of the procedure and that, if it had been noticed in the recovery room immediately after surgery, it would be \u201ca complication, but not really a breach in the standard of care.\u201d In addition, Defendants\u2019 experts on standard of care provided depositions stating that an inadvertent resection of the second rib is a reported, non-negligent complication of the surgery to which Plaintiff consented. Thus, all of the standard of care evidence was that the resulting event was a recognized complication of the consented-to surgical procedure. As a result, the trial court\u2019s grant of summary judgment on Plaintiff\u2019s claim of battery was proper.\nREVERSED IN PART; AFFIRMED IN PART.\nJudges GEER and DILLON concur.\n. This section was amended effective 1 October 2011 with the amendments being applicable to causes of action arising on or after that date. Accordingly, the amended version of the statute is not applicable in this case.\n. Streisand was not available to testify during the presentation of Plaintiffs case at trial. Defendants consented to having Streisand\u2019s discovery deposition testimony read aloud to the jury in place of Streisand\u2019s live testimony.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Cranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A., by Paul I. Klein, for Plaintiff.", "Yates, McLamb, & Weyher, L.L.P., by Dan J. McLamb and Lori Meyerhoffer, for Defendants." ], "corrections": "", "head_matter": "JEFFREY HIGGINBOTHAM, Plaintiff v. THOMAS A. D\u2019AMICO, M.D., and DUKE UNIVERSITY HEALTH SYSTEM, INC., Defendants\nNo. COA12-1099\nFiled 16 April 2013\n1. Medical Malpractice \u2014 expert testimony \u2014 national standard of care\nThe trial court erred by directing a verdict in favor of defendants on plaintiffs medical malpractice claim. The mere use of the phrase \u201cnational standard of care\u201d was not fatal to the expert\u2019s testimony that otherwise met the demands of N.C.G.S. \u00a7 90-21.12.\n2. Medical Malpractice \u2014 battery\u2014recognized complication from surgical procedure\nThe trial court did not err by granting summary judgment in favor of defendants on plaintiffs battery claim in a medical malpractice case. All of the standard of care evidence was that the resulting event was a recognized complication of the consented-to surgical procedure.\nAppeal by Plaintiff from order entered 19 September 2011 by Judge Carl R. Fox and judgment entered 14 December 2011 by Judge G. Wayne Abernathy in Durham County Superior Court. Heard in the Court of Appeals 28 February 2013.\nCranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A., by Paul I. Klein, for Plaintiff.\nYates, McLamb, & Weyher, L.L.P., by Dan J. McLamb and Lori Meyerhoffer, for Defendants." }, "file_name": "0441-01", "first_page_order": 451, "last_page_order": 458 }