The Court of Appeals of North Carolina (“North Carolina Appellate Court”) reversed the directed verdict entered in favor of the defendant neuropathologist in a North Carolina medical malpractice case in an unpublished opinion filed on July 3, 2018, holding that it is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession – it is enough that the expert witness because of his expertise is in a better position to have an opinion on the subject than the trier of fact.
In the case the North Carolina Appellate Court was deciding, the North Carolina medical malpractice plaintiff alleged that the defendant neuropathologist stated in his pathology report that tissue samples taken from the plaintiff’s brain during a biopsy indicated that one was a glioma and the other a glioblastoma, both of which are malignant growths.
Based on the defendant neuropathologist’s report, the surgeon removed what he believed was a malignant glioma, along with the plaintiff’s entire left inferior temporal lobe. After viewing the removed tissues, the defendant neuropathologist reported that the original diagnoses of glioma and glioblastoma were “no longer operative,” that the tissue was “clearly reactive and benign in appearance,” and that “technical problems interfered with the interpretation of the original study.”
The plaintiff subsequently filed her North Carolina medical malpractice lawsuit against the defendant neuropathologist, alleging that he was negligent in failing to correctly diagnose plaintiff’s brain tissue sample from the biopsy. The defendants filed a written motion for a directed verdict, alleging that the plaintiff’s evidence failed to establish that the defendant neuropathologist breached the standard of care applicable to a neuropathologist, that the plaintiff failed to offer expert testimony regarding proximate cause, and that the plaintiff therefore failed to establish gross negligence.
The trial court granted the defendants’ motion for a directed verdict, finding that the plaintiff called only one expert witness at trial, a neuropathologist, who did not testify as to the standard of care applicable to defendant Duke Medicine and did not produce any expert testimony regarding the cause of the surgeon’s recommendation for brain surgery or any evidence that the surgeon would not have recommended the surgery had the defendant neuropathologist complied with the standard of care.
The plaintiff appealed.
North Carolina Appellate Court Opinion
The North Carolina Appellate Court stated that the pliantiff’s expert was admitted as an expert in neuropathology, and not surgery. However, the plaintiff’s expert was in a better position than the trier of fact to have an opinion on whether the plaintiff would have been subjected to surgery but for the defendant neuropathologist’s misdiagnosis.
The North Carolina Appellate Court therefore held that the trial court erred in excluding the plaintiff’s expert’s testimony, reversed the portion of the directed verdict order holding that the plaintiff failed to prove proximate cause, and remanded for further proceedings consistent with its opinion.
Source Grodensky v. McLendon, No. COA17-1258-2.
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