Appeal by plaintiff from order filed 7 March 1997 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 17 February 1998.
The opinion of the court was delivered by: Greene, Judge.
Edward Lee Trapp (plaintiff) appeals from the trial court's dismissal of his suit against Gerald M. Maccioli, M.D. (defendant).
The facts are as follows: On 19 March 1994 Mary Catherine Trapp (Mrs. Trapp) was evaluated by Kenneth Zeitler, M.D., a physician at Wake Medical Center who recommended a medical procedure called plasmapheresis. Mrs. Trapp was transferred to Rex Hospital where the plasmapheresis procedure was to be performed. In preparing for plasmapheresis, a catheter or hollow plastic tubing is inserted into a vein in the body. This procedure to insert the tubing is called "central venous access" or inserting a "central venous line." On the afternoon of 19 March 1994, the defendant, an anesthesiologist, attempted central venous access into Mrs. Trapp's internal jugular vein on the right side of her neck and was unsuccessful in that location but did succeed elsewhere. A hemotoma developed on Mrs. Trapp's neck and led to further complications which resulted in her death. The plaintiff is the duly qualified administrator of the estate of Mrs. Trapp.
In his complaint, the plaintiff alleged, among other things, that the medical care complained of had "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" in accordance with Rule 9(j) of our Rules of Civil Procedure. In answer to the defendant's interrogatories the plaintiff responded that George Podgorny, M.D. (Dr. Podgorny), a licensed physician who is board certified in surgery and specializes in emergency care, had reviewed (prior to the filing of the complaint) the standard of care given to Mrs. Trapp in June of 1994.
At his deposition, Dr. Podgorny testified that he was not board certified in anesthesia or critical care and had no anesthesia training in a residency program. He stated that he, as an emergency medicine specialist, had been the "physician involved in inserting a central venous line" within the past year and that emergency medicine specialists did perform central venous access. He did not know if the central venous accesses he had performed were done specifically on patients who were to then undergo plasmapheresis. According to Dr. Podgorny, surgeons were the most likely to perform central venous access because it was considered a "surgical type activity." He further stated that a central venous access is a "procedure" and that it "is not driven by what is the treatment later on. The procedure is the same." Dr. Podgorny admitted that he had no information as "to the specific requirements with regard to central line access for a patient undergoing plasmapheresis" and "any opinion as to the interplay between the type of central line access which is required for plasmapheresis of a patient [was] something outside of [his] speciality."
The defendant filed a motion to dismiss, pursuant to Rule 9(j), alleging that the plaintiff had "failed to identify any physician who practices within the same specialty as [the defendant], as required by Rule 702." In dismissing the complaint, the trial court found, among other things, the following:
(3) That emergency medicine and trauma is not a practice of medicine similar to anesthesiology and does not include the performance of the procedure complained of in the complaint, specifically the insertion of a central venous line catheter in a patient who is to undergo plasmapheresis;
(4) That Dr. George Podgorny has had no prior experience treating patients with plasmapheresis; nor has he had any experience inserting the plasmapheresis catheter;
(5) That the health care services at issue in this case include the insertion of a central line catheter for the purpose of plasmapheresis;
(6) That the interplay between the type of central line access which is required for plasmapheresis of the patient is outside Dr. George Podgorny's particular specialty;
(12) That plaintiff made certification in the complaint, pursuant to Rule 9(j), that the medical care complained of had been reviewed by a qualified expert when there was no such qualified expert.
The trial court concluded "as a matter of law that Dr. George Podgorny could not be reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence."
The issue is whether Dr. Podgorny could reasonably be expected to be an expert witness qualified, pursuant to Rule 702, to testify in this medical malpractice action.
Rule 9(j) of the North Carolina Rules of Civil Procedure requires any complaint alleging medical malpractice by a health care provider to specifically assert 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 that [the expert] is willing to testify that the medical care did not comply with the applicable standard of care." N.C.G.S. ...