{ "id": 6778542, "name": "LESLIE WEBB, Administratrix of the Estate of ROBERT B. WEBB, III, Plaintiff-Appellant v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, UNIVERSITY DENTAL ASSOCIATES, NORTH CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY, WAKE FOREST UNIVERSITY PHYSICIANS, SHILPA S. BUSS, DDS, and REENA PATEL, DDS, Defendants-Appellees", "name_abbreviation": "Webb v. Wake Forest University Baptist Medical Center", "decision_date": "2014-02-18", "docket_number": "No. COA13-221", "first_page": "502", "last_page": "515", "citations": [ { "type": "official", "cite": "232 N.C. App. 502" } ], "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": "363 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150629 ], "opinion_index": -1, "case_paths": [ "/nc/363/0140-01" ] }, { "cite": "663 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641536 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0450-01" ] }, { "cite": "628 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635639 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "855", "parenthetical": "alteration in original" }, { "page": "856", "parenthetical": "holding that a nurse qualified to opine as to causation of injury arising from gallbladder surgery" }, { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0851-01" ] }, { "cite": "664 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641599 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "334" }, { "page": "334", "parenthetical": "alterations in original" }, { "page": "334" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0331-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-270.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "577 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "332", "parenthetical": "licensed clinical psychologist was qualified to testify regarding the cause of depression" }, { "page": "332" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191332 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "518", "parenthetical": "licensed clinical psychologist was qualified to testify regarding the cause of depression" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0512-01" ] }, { "cite": "500 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "665" } ], "opinion_index": 0 }, { "cite": "348 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659827 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0684-01" ] }, { "cite": "481 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1997, "pin_cites": [ { "page": "294-96" }, { "page": "295" }, { "page": "296" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11867512 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0330-01" ] }, { "cite": "191 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158984 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/191/0367-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "726 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "parenthetical": "\"Our Supreme Court, in Howerton, cautioned against the merging of the two issues.\"" } ], "opinion_index": 0 }, { "cite": "366 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "year": 2012, "pin_cites": [ { "parenthetical": "\"Our Supreme Court, in Howerton, cautioned against the merging of the two issues.\"" } ], "opinion_index": 0 }, { "cite": "721 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "247", "parenthetical": "\"Our Supreme Court, in Howerton, cautioned against the merging of the two issues.\"" } ], "opinion_index": 0 }, { "cite": "675 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "629" }, { "page": "629" }, { "page": "629" } ], "opinion_index": 0 }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "692" }, { "page": "692" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "468" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "177 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301249 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "294", "parenthetical": "alteration in original" }, { "page": "297" }, { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0290-01" ] }, { "cite": "289 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "366" }, { "page": "366", "parenthetical": "internal quotation marks omitted" }, { "page": "366" } ], "opinion_index": 0 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "369" }, { "page": "369" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0366-01" ] }, { "cite": "250 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "257", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566400 ], "year": 1979, "pin_cites": [ { "page": "402", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0400-01" ] }, { "cite": "191 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160029 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "293" }, { "page": "293" }, { "parenthetical": "internal quotation marks omitted" }, { "page": "293-94" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0290-01" ] }, { "cite": "363 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150629 ], "weight": 3, "pin_cites": [ { "page": "143" }, { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0140-01" ] }, { "cite": "485 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "608" } ], "opinion_index": 1 }, { "cite": "346 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139412 ], "year": 1997, "pin_cites": [ { "page": "203-04" } ], "opinion_index": 1, "case_paths": [ "/nc/346/0187-01" ] }, { "cite": "139 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "760", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "263 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569848 ], "year": 1964, "pin_cites": [ { "page": "325", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/263/0317-01" ] }, { "cite": "500 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "468" } ], "opinion_index": 1 }, { "cite": "129 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651913 ], "year": 1998, "pin_cites": [ { "page": "621" } ], "opinion_index": 1, "case_paths": [ "/nc-app/129/0618-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "686", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "458", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "177 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301249 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "628" } ], "opinion_index": 1, "case_paths": [ "/nc-app/177/0290-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 31688, "ocr_confidence": 0.71, "pagerank": { "raw": 4.7492960360752035e-08, "percentile": 0.29855833293755735 }, "sha256": "63bb3285cc12ce2684b93c17ce1a132528acf7ccc170f566be377aa8e60890b8", "simhash": "1:179ad4601503da02", "word_count": 4973 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs." ], "parties": [ "LESLIE WEBB, Administratrix of the Estate of ROBERT B. WEBB, III, Plaintiff-Appellant v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, UNIVERSITY DENTAL ASSOCIATES, NORTH CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY, WAKE FOREST UNIVERSITY PHYSICIANS, SHILPA S. BUSS, DDS, and REENA PATEL, DDS, Defendants-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nLeslie Webb, Administratrix of the Estate of Robert B. Webb, III, (\u201cPlaintiff\u2019), filed a complaint against Wake Forest University Baptist Medical Center, University Dental Associates, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS (\u201cDefendants\u201d) on 13 July 2010. Plaintiff alleged that Robert B. Webb, III, (\u201cthe Decedent\u201d) was under general anesthesia for oral surgery, teeth cleaning, and the extraction of four teeth performed on 13 March 2008. The Decedent was sent home the same day following the procedure. He became unresponsive at home on 14 March 2008 and was pronounced dead on 15 March 2008. Plaintiff alleged that Defendants were negligent in their treatment of the Decedent and that this negligence was the proximate cause of his death.\nDefendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS, filed an answer on 30 September 2010. Defendant University Dental Associates filed a separate answer on 5 October 2010.\nDefendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS, filed a motion for summary judgment on 26 July 2012. Defendant University Dental Associates filed a separate motion for summary judgment on 31 July 2012.\nThe trial court granted the motions for summary judgment as to \u201cany and all allegations, claims, and causes of action involving the dental care provided to [the D]ecedent.\u201d The trial court also granted the motion for summary judgment \u201cas to any and all allegations, claims, and causes of action that relate to the dental care provided to [the DJecedent involving the alleged negligence of [Defendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, and Wake Forest University Physicians.\u201d The trial court denied Defendants\u2019 summary judgment motion relating to anesthesia care.\nPlaintiff appeals.\nI. Summary Judgment Rule\nPlaintiff argues the trial court erred in granting Defendants\u2019 motions for summary judgment relating to dental care of Decedent. A trial court should grant a motion for summary judgment only \u201cif 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2013); see also Lord v. Beerman, 191 N.C. App. 290, 293, 664 S.E.2d 331, 334 (2008).\nOur Supreme Court has \u201cemphasized that summary judgment is a drastic measure, and it should be used with caution. This is especially true in a negligence case[.]\u201d Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979) (internal citation omitted). The purpose of N.C.G.S. \u00a7 1A-1, Rule 56 \u201cis to eliminate formal trials where only questions of law are involved.\u201d Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). \u201cAn. issue is \u2018genuine\u2019 if it can be proven by substantial evidence and a fact is \u2018material\u2019 if it would constitute or irrevocably establish any material element of a claim or a defense.\u201d Id.\n\u201cThe moving party carries the burden of establishing the lack of any triable issue.\u201d Lord, 191 N.C. App. at 293, 664 S.E.2d at .334. \u201cThe mov-ant may meet his or her burden by proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim[.]\u201d Id. (internal quotation marks omitted). \u201cGenerally this means that on undisputed aspects of the opposing evidential forecast, where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law.\u201d Lowe, 305 N.C. at 369, 289 S.E.2d at 366 (internal quotation marks omitted).\nOnce the moving party has met its initial burden, the nonmoving party must produce \u201ca forecast of evidence demonstrating that the [non-moving party] will be able to make out at least a prima facie case at trial\u201d in order to survive summary judgment. Diggs v. Novant Health, Inc., 177 N.C. App. 290, 294, 628 S.E.2d 851, 855 (2006) (alteration in original). \u201cThe opposing [nonmoving] party need not convince the court that he would prevail on a triable issue of material fact but only that the issue exists.\u201d Lowe, 305 N.C. at 370, 289 S.E.2d at 366.\nII Analysis\nPlaintiffs complaint and Defendants\u2019 answers show there are genuine issues of material fact in this matter. The complaint alleged the following:\nXII. That the oral surgery performed on [the Decedent] lasted 8 hours and 20 minutes, approximately four times longer than the time for the procedure represented to the parents of [the Decedent]. The oral surgery consisted of teeth cleaning and the extraction of four teeth. The patient was under general anesthesia for over 8 hours....\nXIV. That the oral surgeons and the anesthesia treatment team were aware of the fact that a known risk of having a patient under general anesthesia for an extensive period of time was that the patient could develop pneumonia.\nXV. That in spite of the lengthy surgery and the expended period of time that the patient was under general anesthesia, upon information and belief, the anesthesia treatment team in consultation with the two oral surgeons made the decision to send [the Decedent] home on March 13, 2008 post surgery.\nXVI. On March 14, 2008, [the Decedent] became unresponsive at home. He was rushed by EMT to Moses Cone Hospital in Greensboro, North Carolina. At Moses Cone Hospital, [the Decedent] was diagnosed as having cerebral edema on CT, anoxic brain damage and cardiac arrest....\nXVIII. An autopsy was performed, and the cause of death was determined to be bronchopneumonia following comprehensive dental care under general anesthesia.\nDefendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS, denied all of the above allegations in their answer. Defendant University Dental Associates filed a separate answer in which it also denied the above allegations.\nDefendants, in their briefs to this Court and at oral argument, focused on the admissibility of expert testimony under N.C. Gen. Stat. \u00a7 8C-1, Rule 702(b). The trial court also stated during the hearing that Plaintiff had \u201crun squarely into a brick wall with Rule 702(b).\u201d\nHowever, we note that the record contains no motion to exclude Plaintiffs expert witnesses. Rather, at the hearing on Defendants\u2019 motions for summary judgment, Defendants argued Plaintiff failed to show causation, as follows:\nYour Honor ... we will concede that [Plaintiff has] three expert witnesses, all who have testified about standard of care issues. That is not what we\u2019re arguing about. We are strictly arguing about whether or not they had made a causal link with these three experts to the dental care in the case.\nMedical malpractice encompasses actions arising from the performance of dental care. \u201c[T]he term \u2018medical malpractice action\u2019 means a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.\u201d N.C. Gen. Stat. \u00a7 90-21.11 (2009).\n\u201cTo survive a motion for summary judgment in a medical malpractice action, a plaintiff must forecast evidence demonstrating that the treatment administered by [the] defendant was in negligent violation of the accepted standard of medical care in the community],] and that [the] defendant\u2019s treatment proximately caused the injury.\u201d Lord, 191 N.C. App. at 293-94, 664 S.E.2d at 334 (alterations in original) (internal quotation marks omitted). \u201cProximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiffs injuries, and without which the injuries would not have occurred[.]\u201d Id. at 294, 664 S.E.2d at 334.\nIn the present case, Plaintiff forecast evidence showing that the treatment administered by Defendants was in negligent violation of the accepted standard of care in the community. Dr. Behrman, a Doctor of Dental Medicine, testified on behalf of the Decedent in a deposition that \u201c[t]here was no clearance obtained on a significantly medically compromised person by the physician of record, the physician caring for him[.]\u201d Dr. Behrman testified as follows regarding the necessity to consult with the physician of record prior to the dental procedure:\nThis is bread and butter of training programs, the way we teach the residents, the way we\u2019ve been taught; using the medical providers, obtaining the consult and such. This is what we do and what we\u2019re trained to do, what I expect my residents to do, what I have to demonstrate during accreditation visits within a residency program.\nPlaintiff also forecast evidence, in depositions and in the complaint, of the proximate cause of death. The portion of Dr. Behrman\u2019s deposition relevant to causation is quoted below:\n[Plaintiff\u2019s attorney]. In your expert opinion was the violation of the standard of care that you testified about here today a proximal contributing cause to [Decedent] developing bronchopneumonia?\n[Dr. Behrman]. Within my knowledge as an oral and maxil-lofacial surgeon, yes.\nPlaintiff also alleged in the complaint that an \u201cautopsy was performed, and the cause of death was determined to be bronchopneumo-nia following comprehensive dental care under general anesthesia.\u201d The doctor who performed the Decedent\u2019s autopsy, Dr. Gaffney-Kraft, stated in an affidavit filed by Plaintiff in this action that \u201cit is [her] opinion within reasonable medical certainty that the cause of death of [the Decedent] was bronchopneumonia following comprehensive dental care including exam, radiographs, cleaning, restoration and extractions which were performed under general anesthesia shortly before his death[.]\u201d Dr. Gaffney-Kraft also indicated in her report of autopsy examination that Decedent\u2019s cause of death was bronchopneumonia.\nAs stated above, the trial court should grant a motion for summary judgment only \u201cif 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 ajudgment as a matter of law.\u201d N.C.G.S. \u00a7 lA-l,Rule 56(c); see also Lord, 191 N.C. App. at 293, 664 S.E.2d at 334. \u201cWhere there are genuine, conflicting issues of material fact, the motion for summary judgment must be denied so that such disputes may be properly resolved by the jury as the trier of fact.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 468, 597 S.E.2d 674, 692 (2004).\nPlaintiff contends that she \u201cpresented a two-tier approach on causation.\u201d First, Dr. Behrman opined that the violation of the standard of care caused the Decedent\u2019s bronchopneumonia; second, the broncho-pneumonia caused the death of the Decedent. Defendants contend the testimony of Dr. Behrman fails to establish proximate cause because his testimony fails to satisfy N.C.G.S. \u00a78C-1, Rule 702 (2009).\nIII. Admissibility of Expert Testimony\nDespite the fact that this matter is before us on appeal from the grant of summary judgment, we address the admissibility of expert testimony because of our Supreme Court\u2019s analysis in Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009). In Howerton, our Supreme Court recognized the differences in the two issues and commented that a party \u201cwill not likely fare as well\u201d by moving for summary judgment without a preliminary admissibility determination \u201cbecause of the inherent procedural safeguards favoring the non-moving party in motions for summary judgment.\u201d Howerton, 358 N.C. at 468, 597 S.E.2d at 692; see also Day v. Brant, _N.C. App. _,_, 721 S.E.2d 238, 247, disc. review denied, 366 N.C. 719, 726 S.E.2d 179 (2012) (\u201cOur Supreme Court, in Howerton, cautioned against the merging of the two issues.\u201d).\nThe decision in Crocker was composed of three opinions from the Supreme Court. All three opinions analyze the admissibility of expert testimony, regardless of the facts that the appeal was from an order granting summary judgment and the record indicated no motion to exclude expert testimony. Crocker, 363 N.C. at 143, 675 S.E.2d at 629. Our Supreme Court concluded that the trial court\u2019s ruling on summary judgment resulted from \u201ca misapplication of Rule 702[.]\u201d Id. at 144, 675 S.E.2d at 629. Because our Supreme Court in Crocker analyzed the admissibility of expert testimony even in the absence of a motion to exclude expert testimony, we analyze the admissibility of expert testimony in the present case.\n\u201cThe trial court must decide the preliminary question of the admissibility of expert testimony under the three-step approach adopted in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).\u201d Crocker, 363 N.C. at 144, 675 S.E.2d at 629. \u201cThe trial court thereunder must assess: 1) the reliability of the expert\u2019s methodology, 2) the qualifications of the proposed expert, and 3) the relevance of the expert\u2019s testimony.\u201d Id.\nA. Reliability of the Expert\u2019s Methodology\nAs to the first step in the Goode analysis of the admissibility of expert testimony, Plaintiff contends that Dr. Behrman \u201cis unquestionably qualified as an expert in the field of oral surgery.\u201d Defendants contend Plaintiff\u2019s expert testimony is \u201cnot sufficiently reliable to be admissible[,]\u201d citing Asar v. Presbyterian Hosp., 191 N.C. App. 367, 663 S.E.2d 450 (2008). When testimony on medical causation \u201cis based merely upon speculation and conjecture, however, it is no different than a layman\u2019s opinion, and as such, is not sufficiently reliable to be considered competent evidence on issues of medical causation.\u201d Id. at 371, 663 S.E.2d at 453.\nHowever, as discussed above, the opinions of Dr. Behrman and Dr. Gaffney-Kraft were not based merely upon speculation or conjecture. Neither Dr. Behrman nor Dr. Gaffney-Kraft used the words \u201cprobably\u201d or \u201cpossibly\u201d or otherwise indicated that their opinions were speculative or conjectural. Rather, Dr. Behrman answered the question as to his opinion on causation in the affirmative. Similarly, Dr. Gaffney-Kraft stated that \u201cit is [her] opinion within reasonable medical certainty that the cause of death of [the Decedent] was bronchopneumonia[.]\u201d The fact that Plaintiff\u2019s causation testimony is presented in two steps, (1) that the dental care caused Decedent\u2019s bronchopneumonia and (2) that the bron-chopneumonia caused Decedent\u2019s death, does not affect this analysis. Defendants cite no case holding that causation evidence may not be presented in sequential steps, and our research reveals none. Defendants have not shown Plaintiff\u2019s expert testimony is not sufficiently rehable to be considered competent evidence on causation.\nB. Qualifications of the Proposed Expert\nAs to\u2019 the second step in the Goode analysis of the admissibility of expert testimony, Plaintiff contends that, because Dr. Behrman is an oral surgeon who performs surgical operations on patients, and the practice of medicine includes surgery, \u201cthere is an overlap between\u201d statutes regulating the practice of medicine and the practice of dentistry. Defendants contend Plaintiff\u2019s experts \u201ccannot be qualified to render expert opinions on medical causation pertaining to areas of the body outside the oral cavity.\u201d\nDefendants cite Martin v. Benson, 125 N.C. App. 330, 481 S.E.2d 292 (1997), rev\u2019d on other grounds, 348 N.C. 684, 500 S.E.2d 664 (1998), in support of their contention that only a medical doctor would be qualified to opine as to causation of bronchopneumonia. In Martin, this Court held the trial court erred in allowing a neuropsychologist to opine as to a closed head injury. Id. at 334-37, 481 S.E.2d at 294-96. However, our Supreme Court held that the plaintiffs waived the right to appellate review of the testimony because the plaintiffs failed to object to the evidence at the time it was offered at trial. Martin, 348 N.C. at 685, 500 S.E.2d at 665.\n\u201cIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\u201d N.C.G.S. \u00a7 8C-1, Rule 702(a). \u201c[T]he opinion testimony of an expert witness is competent if there is evidence to show that, through study or experience, or both, the witness has acquired such skill that he is better qualified than the jury to form an opinion on the particular subject of his testimony.\u201d Terry v. PPG Indus., Inc., 156 N.C. App. 512, 518, 577 S.E.2d 326, 332 (2003) (licensed clinical psychologist was qualified to testify regarding the cause of depression).\nThis Court in Martin considered \u201cRule 702 in light of this State\u2019s statutes defining the practice of \u2018psychology.\u2019 \u201d Martin, 125 N.C. App. at 336, 481 S.E.2d at 295. This Court noted that N.C. Gen. Stat. \u00a7 90-270.3 (1993) required licensed psychologists to assist clients in obtaining professional help for problems that fall outside the bounds of the psychologist\u2019s competence, including \u201cthe diagnosis and treatment of relevant medical\u201d problems. Id. at 337, 481 S.E.2d at 296. From this statute, this Court concluded it was evident \u201cthat the practice of psychology does not include the diagnosis of medical causation.\u201d Id. By contrast, in the present case, no statute requires dentists to assist their clients in obtaining professional help for problems outside the boundaries of the dentist\u2019s competence. Martin is thus distinguishable from the present case.\n\u201cThe essential question in determining the admissibility of opinion evidence is whether the witness, through study or experience, has acquired such skill that he was better qualified than the jury to form an opinion on the subject matter to which his testimony applies.\u201d Diggs, 177 N.C. App. at 297, 628 S.E.2d at 856 (holding that a nurse qualified to opine as to causation of injury arising from gallbladder surgery).\nDr. Behrman earned a Doctor of Dental Medicine degree, completed an internship in anesthesia and a residency in oral and maxillofacial surgery, is licensed by the New York Board of Dentistry, and has been certified by the American Board of Oral and Maxillofacial Surgeons since 1986. As Chief of the Division of Dentistry, Oral and Maxillofacial Surgery since June 1996, Dr. Behrman oversees residency programs that provide over 10,000 patient visits each year. He is the Chair of the Institutional Review Board of a medical center in New York. In the past, he has held appointments with the University of Pennsylvania School of Dental Medicine and Memorial Sloan-Kettering Cancer Center and Hospital. Focusing on the qualifications of Dr. Behrman in particular, as opposed to the qualifications of licensed dentists in general, Dr. Behrman\u2019s knowledge, skill, experi\u00e9nce, training, and education qualify him to opine as to the causation of bronchopneumonia. Dr. Behrman has \u201cacquired such skill that he was better qualified than the jury to form an opinion\u201d on the causation of bronchopneumonia. Diggs, 177 N.C. App. at 297, 628 S.E.2d at 856; see also Terry, 156 N.C. App. at 518, 577 S.E.2d at 332.\nWe note that Defendants do not challenge the qualification of Dr. Gaffney-Kraft to offer her expert opinion that bronchopneumonia was the Decedent\u2019s cause of death.\nC. Relevance of the Expert\u2019s Testimony\nDefendants do not challenge the third step of the Goode analysis, namely, the relevance of the expert\u2019s testimony.\nIV. Conclusion\nThe depositions, affidavits, and pleadings show that Plaintiff, the nonmoving party, forecast evidence showing that Defendants\u2019 treatment proximately caused the Decedent\u2019s death and that there are genuine issues of material fact to be determined by the jury. The evidence constitutes a sufficient forecast of evidence for presentment of the case to the jury. The trial court erred in granting Defendants\u2019 motions for summary judgment relating to dental care.\nReversed.\nJudge McCULLOUGH concurs.\n. Our General Assembly amended this statute in 2011. 2011 N.C. Sess. Laws ch. 400 \u00a7 5. The amendment applies \u201cto causes of actions arising on or after\u201d 1 October 2011. Id. at \u00a7 11. The cause of action in the present case arose on or about 13 March 2008. The amendment therefore is not applicable to the present case.\n. Our General Assembly amended N.C.G.S. \u00a7 8C-1, Rule 702 in 2011.2011 N.C. Sess. Laws ch. 283 \u00a7 1.3. The amendments apply \u201cto actions commenced on or after\u201d 1 October 2011. Id. at \u00a7 4.2. The amendments are not applicable to the present case because the action was commenced on 13 July 2010.", "type": "majority", "author": "McGEE, Judge." }, { "text": "DILLON, Judge,\ndissenting.\nAt the summary judgment hearing below, Plaintiff relied on the opinions of two dentists \u2014 Dr. Thomas David and Dr. David Behrman \u2014 as her forecast of evidence to establish that (1) the provision of dental care by Defendants to Robert B. Webb, III, (Decedent) violated the standard of care for dental professionals; and that (2) this violation proximately caused Decedent to develop bronchopneumonia. Because I do not believe that the trial court abused its discretion under N.C. Gen. Stat. \u00a7 8C-1, Rule 702 by excluding from its consideration the opinions of these dentists as to the cause of Decedent\u2019s bronchopneumonia, I respectfully dissent.\nHere, Plaintiff bore the burden of producing a forecast of evidence demonstrating \u201c(1) the applicable standard of care; (2) a breach of such standard of care by [Defendants]; (3) [that] the injuries suffered by [Decedent] were proximately caused by such breach; and (4) the damages resulting to [Decedent].\u201d Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998). Our Supreme Court has held that \u201c[w]here \u2018a layman can have no well-founded knowledge and can do no more than indulge in mere speculation (as to the cause of a physical condition), there is no proper foundation for a finding by the trier without expert medical testimony.\u2019 \u201d Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1964) (citations omitted).\nThe theory of Plaintiffs case, here, is that Defendants violated the standard of care applicable to licensed dentists, that this violation proximately caused Decedent to contract bronchopneumonia, and that Decedent\u2019s bronchopneumonia was the cause of his death. Defendants do not contend that Plaintiffs forecast of evidence regarding the applicable standard of care and the breach thereof was insufficient to survive summary judgment. Indeed, Plaintiffs two dental experts each stated their opinions concerning the applicable standard of care for a licensed dentist in performing Decedent\u2019s dental procedure and, moreover, that Defendants had violated that standard. Rather, Defendants argue \u2014 and the trial court concluded \u2014 that these same dentists did not qualify under Rule 702 to offer an expert opinion that the violation of the dental standard of care in this case was the proximate cause of Decedent\u2019s bronchopneumonia.\nThe parties do not dispute that Plaintiff\u2019s burden was to forecast evidence in the form of expert testimony to lay a proper foundation from which a jury could determine the cause of Decedent\u2019s bronchopneumo-nia. The admissibility of expert testimony on the issue of medical causation is governed by Rule 702(a) of our Rules of Evidence, the relevant version of which provides that \u201c[i]f scientific, technical or other specialized knowledge will assist the trier of fact... to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion[.]\u201d\nIn the context of a medical malpractice action, Rule 702(a) appears less restrictive as to the qualifications of a witness to provide an expert opinion on medical causation than Rule 702(b) as to the qualifications of a witness to provide an expert opinion on the appropriate standard of care. For instance, while an expert testifying as to the standard of care must generally be \u201ca licensed health care provider,\u201d this Court has held, in a medical malpractice case, that a witness need not be a licensed medical doctor in order to offer an expert opinion as to medical causation, Diggs v. Novant Health, 177 N.C. App. 290, 628, S.E.2d 851 (2006), noting that our Supreme Court has rejected the notion that only a medical doctor can be qualified under Rule 702 to give an opinion regarding medical causation, id. (citing State v. Tyler, 346 N.C. 187, 203-04, 485 S.E.2d 599, 608 (1997)). Accordingly, I believe we are bound to conclude that Plaintiffs two dentist experts are not disqualified, as a matter of law, from offering opinions regarding Decedent\u2019s onset of bronchopneumonia.\nWhile it is true that the trial court is \u201cafforded \u2018wide latitude of discretion when making a determination about the admissibility of expert testimony[,]\u2019 \u201dHowerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citation omitted), I discern no abuse of discretion in the trial court\u2019s decision to exclude the opinion testimonies of Drs. David and Behrman concerning the cause of Decedent\u2019s bronchopneumonia in the present case. Although Dr. David opined that the standard care violation was the proximate cause of Decedent\u2019s bronchopneumonia, he also testified that he was not an expert qualified to offer an opinion as to the cause of Decedent\u2019s bronchopneumonia, specifically stating: \u201cAgain, I\u2019m not an expert in that regard, so my only opinion would be as a health care practitioner and general knowledge in that realm, but I\u2019m not going to offer an expert opinion.\u201d\nLikewise, Dr. Behrman stated in response to a question from Plaintiff\u2019s counsel that it was his opinion that the standard of care violation caused Decedent\u2019s bronchopneumonia; however, he qualified his response in stating that his opinion was \u201c[w]ithin [his] knowledge as an oral and maxillofacial surgeon\u201d and that he \u201cwould defer [his] opinions related to the development of [Decedent\u2019s] bronchopneumonia to a medical doctor.\u201d Further Dr. Behrman acknowledged that Decedent was a medically complex patient.\nThe majority cites the three-pronged analysis set out by our Supreme Court in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), which the trial court must use in determining the preliminary issue of the admissibility of expert testimony. I disagree with the majority\u2019s conclusion with respect to the first prong of the analysis, that the methodology employed by Drs. David and Behrman in determining the cause of Decedent\u2019s bronchopneumonia was reliable. Plaintiff does not point to any testimony where either dentist discussed the methodology by which he determined the cause of Decedent\u2019s bronchopneumonia. Further, I disagree with the majority\u2019s conclusion regarding the second prong of the analysis, that Drs. David and Behrman were qualified to offer expert opinions as to the cause of Decedent\u2019s bronchopneumonia. Plaintiff does not point to any testimony indicating that either dentist possessed the requisite \u201cknowledge, skill, experience, training or education\u201d to state an opinion with any degree of certainty that it was Defendants\u2019 conduct that caused Decedent\u2019s bronchopneumonia. In other words, I do not believe that a trial court abuses its discretion as gatekeeper in excluding the opinion testimony of a witness concerning the cause of bronchopneumonia in a patient with a complex medical history simply because the witness testified that he has worked in the health care profession and has extensive experience in dental surgery, but otherwise provided no testimony indicating that he has any expertise in determining the cause of bronchopneumonia. Accordingly, I would vote to affirm the trial court\u2019s decision to exclude this testimony.\n. Plaintiff relied upon the opinion of a medical doctor that Decedent\u2019s broncho-pneumonia caused his death. However, this medical doctor never expressed an opinion as to the cause of the bronchopneumonia\n. Likewise, Defendants do not contend that Plaintiff\u2019s forecast of evidence regarding the causal connection between Decedent\u2019s bronchopneumonia and his death was not sufficient to survive summary judgment, as this connection was established through the opinion of a medical doctor.\n. Rule 702(a) was amended for actions commenced after October 1,2011 to provide a stricter standard on the admissibility of expert testimony. See State v. McCrady,_N.C. App. _, _ S.E.2d _ (2014).", "type": "dissent", "author": "DILLON, Judge," } ], "attorneys": [ "Kennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for Plaintiff-Appellant.", "CoffeyBomarLLP, byTamuraD. Coffey and J. RebekahBiggerstaff for Defendants-Appellees Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, and Wake Forest University Physicians.", "Carruthers & Roth, P.A., by Kenneth L. Jones and Michal E. Yarborough, for Defendant-Appellee University Dental Associates." ], "corrections": "", "head_matter": "LESLIE WEBB, Administratrix of the Estate of ROBERT B. WEBB, III, Plaintiff-Appellant v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, UNIVERSITY DENTAL ASSOCIATES, NORTH CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY, WAKE FOREST UNIVERSITY PHYSICIANS, SHILPA S. BUSS, DDS, and REENA PATEL, DDS, Defendants-Appellees\nNo. COA13-221\nFiled 18 February 2014\n1. Dentists \u2014 malpractice\u2014prolonged anesthesia \u2014 summary judgment\nIn a dental malpractice action that arose from a procedure with sustained anesthesia and pneumonia, plaintiff, the nonmoving party, forecast evidence showing that defendants\u2019 treatment proximately caused the decedent\u2019s death and that there were genuine issues of material fact to be determined by the jury. The trial court erred by granting defendants\u2019 motions for summary judgment.\n2. Appeal and Error \u2014 preservation of issues \u2014 exclusion of evidence \u2014 no motion to exclude \u2014 considered under summary judgment\nDespite the fact that a dental malpractice action was before the Court of Appeals on appeal from a grant of summary judgment, and the record did not show a motion to exclude expert testimony, the admissibility of expert testimony was addressed because of the Supreme Court\u2019s analysis in Crocker v. Roethling, 363 N.C. 140.\n3. Dentists \u2014 malpractice\u2014causation\u2014two-step showing\nDefendants did not show that plaintiff\u2019s expert testimony in a dental malpractice case was not sufficiently reliable on causation. The fact that plaintiffs causation testimony was presented in two steps, that the dental care caused his bronchopneumonia and that the bronchopneumonia caused decedent\u2019s death, did not affect this analysis.\n4. Dentists \u2014 malpractice\u2014causation\u2014expert witness \u2014 individual considerations\nPlaintiffs expert in a dental malpractice case involving anesthesia and pneumonia was qualified to render opinions on causation. Focusing on the qualifications of Dr. Behrman in particular, as opposed to the qualifications of licensed dentists in general, Dr. Behrman\u2019s knowledge, skill, experience, training, and education qualified him to opine as to the causation of bronchopneumonia.\nJudge DILLON dissenting.\nAppeal by Plaintiff from order entered 27 August 2012 by Judge John O. Craig, III in Superior Court, Forsyth County. Heard in the Court of Appeals 10 September 2013.\nKennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for Plaintiff-Appellant.\nCoffeyBomarLLP, byTamuraD. Coffey and J. RebekahBiggerstaff for Defendants-Appellees Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, and Wake Forest University Physicians.\nCarruthers & Roth, P.A., by Kenneth L. Jones and Michal E. Yarborough, for Defendant-Appellee University Dental Associates." }, "file_name": "0502-01", "first_page_order": 512, "last_page_order": 525 }