Gray v. E. Carolina Med. Servs.

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-520

No. COA20-898

Filed 2 August 2022

Pitt County, No. 19 CVS 2683

MELVA LOIS BANKS GRAY, as Administratrix of the Estate of STEVEN PHILIP WILSON, Plaintiff,

v.

EASTERN CAROLINA MEDICAL SERVICES, PLLC, et al., Defendants.

Appeal by Plaintiff from order entered 7 July 2020 by Judge Jeffery B. Foster

in Pitt County Superior Court. Heard in the Court of Appeals 3 November 2021.

The Duke Law Firm NC, by W. Gregory Duke, for Plaintiff-Appellant.

Batten Lee, PLLC, by Gary Adam Moyers and C. Houston Foppiano, for Defendants-Appellees Eastern Carolina Medical Services, PLLC, and Mark Cervi, M.D.

Walker, Allen, Grice, Ammons, Foy, Klick & McCullough, L.L.P., by Elizabeth P. McCullough, for Defendant-Appellee Gary Leonhardt, M.D.

Huff Powell & Bailey PLLC, by Barrett Johnson and Katherine Hilkey-Boyatt, for Defendants-Appellees Carol Lee Keech, aka Carol Lee Oxendine; Charles Ray Faulkner, R.N.; Kimberly Jordan, R.N.; and Jacqueline Lymon, L.P.N.

Michael, Best, & Friedrich, LLP, by Carrie E. Meigs and Justin G. May, for Defendant-Appellee Donna McLean.

COLLINS, Judge.

¶1 Melva Lois Banks Gray (“Plaintiff”) brings this action for medical malpractice

Opinion of the Court

as Administratrix of the Estate of Steven Philip Wilson. Plaintiff argues that the

trial court erred by dismissing her complaint for failure to substantively comply with

Rule 9(j) of the North Carolina Rules of Civil Procedure. Because Plaintiff could

reasonably have expected her 9(j) expert to qualify as an expert witness under North

Carolina Rule of Evidence 702, we reverse the trial court’s order and remand for

further proceedings.

I. Factual and Procedural History

¶2 Plaintiff seeks redress for the allegedly deficient medical care Steven Philip

Wilson received while in the custody of the Pitt County Detention Center (“PCDC”)

between 22 September 2016 and 16 November 2017. Wilson was detained at the

PCDC on 22 September 2016. He had been diagnosed with pneumonia and prescribed

antibiotics the week before he was detained. Wilson submitted at least nine Inmate

Requests for Sick Call Visits between 23 September 2016 and 10 November 2016.

Wilson was experiencing symptoms including coughing with mucus, congestion,

fever, wheezing, lethargy, coarse breathing, flushed face, trouble sleeping, back pain,

and elevated heart rate. He was prescribed an inhaler, over-the-counter pain

medicine, and antibiotics. Wilson told medical staff that he was not feeling better,

and progress reports indicate that his condition continued to worsen during those two

months.

¶3 Wilson was transferred to the Greene County Jail on 10 November 2016. Upon

his admission, Wilson had a heavy cough and complained that he was short of breath,

winded, and that the left side of his rib cage hurt. He was transported to Lenoir

Memorial Hospital on 11 November 2016. At Lenoir Memorial Hospital, Wilson was

noted to be in moderate respiratory distress and was diagnosed with acute left-sided

empyema and sepsis secondary to left-sided empyema. He was transported to Vidant

Medical Center (‘‘Vidant’’) where he stayed from 11 November 2016 until

16 November 2016.

¶4 At Vidant, Wilson was diagnosed with septic shock due to staphylococcus,

necrotizing pneumonia, acute respiratory failure, and acute kidney failure. Wilson

was intubated, placed on a ventilator, given a tracheostomy, and had his left lung

surgically removed. Wilson was discharged from Vidant on 16 December 2016 and

incarcerated with the North Carolina Department of Corrections (“NCDC”). He was

released from the NCDC on 16 November 2017. Wilson died on 18 October 2018 from

an apparently unrelated drug overdose.

¶5 Plaintiff commenced this action by filing a complaint on 19 June 2019. Plaintiff

named as defendants Eastern Carolina Medical Services (“ECMS”) and two

physicians, Dr. Gary Leonhardt and Dr. Mark Cervi. PCDC contracted with ECMS

to provide medical care to persons detained at PCDC. ECMS was responsible for,

among other things, physician services rendered to inmates, and diagnostic

examinations, medical treatment, and health care services for inmates. Dr.

Leonhardt is a co-founder, owner, and staff physician at ECMS. He specializes in

psychiatry and addiction medicine, practices as a general practitioner, and has

experience in internal medicine. Dr. Cervi is a co-founder, director, and medical

physician at ECMS. He specializes in internal medicine. Dr. Leonhardt and Dr.

Cervi provided primary care to individuals detained at PCDC and supervised the

ECMS medical staff during the time Wilson was an inmate at PCDC.

¶6 Plaintiff also named as defendants the following ECMS nurses who treated

Wilson: Donna McLean, a nurse Practitioner (“NP”); Carol Keech, a licensed

practical nurse (“LPN”); Charles Faulkner, a registered nurse (“RN”); Kimberly

Jordan, an RN; and Jaqueline Lymon, a LPN.

¶7 Defendants moved to dismiss the complaint based on Plaintiff’s failure to

facially comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. Plaintiff

filed a voluntary dismissal of that suit on 18 September 2019 and filed a new

complaint against the same Defendants on that day. Plaintiff alleged ordinary

negligence and professional negligence/medical malpractice resulting in personal

injury to Wilson, and sought compensatory and punitive damages.

¶8 In her complaint, Plaintiff alleged the following, pursuant to Rule 9(j):

Plaintiff specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have 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 addition, should a Court later determine that the person who has reviewed the medical care and all medical records pertaining to the alleged negligence herein that are available to the Plaintiff after reasonable inquiry, and who is willing to testify that the medical care did not comply with the applicable standard of care, does not meet the requirements of Rule 702 of the North Carolina Rules of Evidence, the Plaintiff will seek to have that person qualified as an expert witness by motion under Rule 702(e) of the North Carolina Rules of Evidence, and Plaintiff moves the Court (as provided in Rule 9(j) of the [North Carolina] Rules of Civil Procedure) that such person be qualified as an expert witness under Rule 702(e) of the [North Carolina] Rules of Evidence.

¶9 All Defendants answered and filed motions to dismiss, asserting, in part, that

Plaintiff’s complaint should be dismissed for failing to comply with Rule 9(j). In

response to Defendants’ interrogatories, Plaintiff identified William B. Hall, M.D.,

(“Dr. Hall”) as the Rule 9(j) expert who had reviewed the medical care and medical

records pertaining to the alleged negligence at issue, and who was willing to

testify that the medical care did not comply with the applicable standard of

care.

¶ 10 Dr. Hall is certified by the American Board of Internal Medicine in internal

medicine, pulmonary disease, and critical care medicine. According to his curriculum

vitae, during the year preceding Wilson’s care at PCDC, Dr. Hall served as a

pulmonary and critical care physician for UNC Rex Healthcare and the Medical

Director at both Rex Pulmonary Specialists and Rex Pulmonary Rehab in Raleigh,

North Carolina. According to Plaintiff’s response to Dr. Leonhardt’s

interrogatory, Dr. Hall “engages in the active clinical practice of pulmonology,

internal medicine, and general primary care and supervises medical staff on a

daily basis.” Dr. Hall supervises medical staff, including registered nurses,

physician assistants, and certified medical assistants, and is responsible for

reviewing patient charts; reviewing his medical staff’s work, notes, and proposed

plans; and addressing medical concerns raised by his staff.

¶ 11 Defendants deposed Dr. Hall on 6 March 2020 “solely for the purpose of

determining his qualifications and whether the plaintiff could have reasonably

expected him to qualify pursuant to Rule 9(j).” At the deposition, Dr. Hall testified

that after medical school he completed a residency in internal medicine and practiced

for one year as a hospitalist–an internal medicine physician who works at a hospital.

After that year, he completed a fellowship in pulmonology and critical care medicine

and has, since 2010, practiced as a specialist in pulmonary and critical care medicine

at REX Pulmonary Specialists and REX Hospital. Dr. Hall testified, “there’s a big

overlap between the pulmonary and the -- and the internal medicine. . . . I don’t

usually see people as a primary care physician but I often will do things in my clinic

that straddle over from pulmonary into primary care . . . .”

¶ 12 After Dr. Hall’s deposition, on 2 April 2020, Dr. Leonhardt filed a second

motion to dismiss, again asserting Plaintiff’s failure to comply with Rule 9(j). ECMS

and Dr. Cervi also filed on 1 June 2020 second motions to dismiss for Plaintiff’s failure

to comply with Rule 9(j).1

¶ 13 The trial court held a hearing on 23 June 2020 on the various motions filed by

Defendants. The trial courted entered an Order2 on 7 July 2020 dismissing Plaintiff’s

complaint with prejudice. Because the statute of limitations as to all Defendants had

run at the time of the hearing, the trial court dismissed the matter with prejudice for

failure to comply with Rule 9(j). Plaintiff appealed.

II. Discussion

¶ 14 Plaintiff first argues that the trial court erred by dismissing her complaint for

failure to substantively comply with Rule 9(j). Specifically, Plaintiff argues that the

trial court erroneously concluded that Plaintiff could not have reasonably expected

Dr. Hall to qualify as an expert witness against Defendants pursuant to Rule 702.

1 Dr. Leonhardt also filed a Motion to Strike on 26 November 2019. Further, ECMS and Dr. Cervi filed a Motion to Dismiss Plaintiff’s Claims for Punitive Damages on 17 January 2020. Dr. Leonhardt also filed an Objection and Motion to Strike Portions of Plaintiffs Memorandum of Law in Opposition to Defendants’ Motions to Strike and Motions to Dismiss and Select Exhibits and Motion to Strike Affidavit of William B. Hall, M.D., on 19 June 2020.

2 The full title of the Order is “Order on Defendant Gary Leonhardt’s Motion to

Dismiss and Motion to Strike, Second Motion to Dismiss, and Objection and Motion to Strike Portions of Plaintiff’s Memorandum of Law in Opposition and Select Exhibits, and Order on Defendants Mark Cervi, M.D. and Eastern Carolina Medical Services, PLLC’s Motions to Dismiss and Order on Defendant Donna McLean, D.N.P., F.N.P.-B.C.’s Motion to Dismiss and Order on Defendants Keech/Oxendine; Faulkner; Jordan; and Lymon’s Motion to Dismiss.”

A. Standard of Review

¶ 15 When a complaint that is facially valid under Rule 9(j) is challenged on the

basis that the 9(j) certification is not supported by the facts, “the trial court must

examine the facts and circumstances known or those which should have been known

to the pleader at the time of filing, and to the extent there are reasonable disputes or

ambiguities in the forecasted evidence, the trial court should draw all reasonable

inferences in favor of the nonmoving party at this preliminary stage.” Preston v.

Movahed, 374 N.C. 177, 189, 840 S.E.2d 174, 183-84 (2020) (quotation marks and

citations omitted).

“When the trial court determines that reliance on disputed or ambiguous forecasted evidence was not reasonable, the court must make written findings of fact to allow a reviewing appellate court to determine whether those findings are supported by competent evidence, whether the conclusions of law are supported by those findings, and, in turn, whether those conclusions support the trial court’s ultimate determination.”

Moore v. Proper, 366 N.C. 25, 32, 726 S.E.2d 812, 818 (2012) (citation omitted); see

also Preston, 374 N.C. at 189, 840 S.E.2d at 184. “[B]ecause the evidence must be

taken in the light most favorable to the plaintiff, the nature of these ‘findings,’ and

the ‘competent evidence’ that will suffice to support such findings, differs from

situations where the trial court sits as a fact-finder.” Preston, 374 N.C. at 189-90,

840 S.E.2d at 184.

¶ 16 “Rule 9(j) serves as a gatekeeper, enacted by the legislature, to prevent

frivolous malpractice claims by requiring expert review before filing of the action.”

Vaughan v. Mashburn, 371 N.C. 428, 434, 817 S.E.2d 370, 375 (2018) (quoting Moore,

366 N.C. at 31, 726 S.E.2d at 817) (emphasis omitted). The rule provides, in pertinent

part:

Any complaint alleging medical malpractice by a health care provider pursuant to [N.C. Gen. Stat. §] 90-21.11(2)a. in failing to comply with the applicable standard of care under [N.C. Gen. Stat. §] 90-21.12 shall be dismissed unless:

(1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have 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[.]

N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (2020).

B. Defendants ECMS, Dr. Leonhardt, and Dr. Cervi

¶ 17 Rule 702(b) of the North Carolina Rules of Evidence provides that a person

shall not give expert testimony on the appropriate standard of care in a medical

malpractice action unless the person is a licensed health care provider and the person

meets the criteria set forth in the following two-pronged test:

(1) If the party against whom . . . the testimony is offered is a specialist, the expert witness must:

a. Specialize in the same specialty as the party against whom . . . the testimony is offered; or

b. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.

(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:

a. The active clinical practice of the same health profession in which the party against whom . . . the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or

b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom . . . the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.

N.C. Gen. Stat. § 8C-1, Rule 702(b) (2020).3

3 We note that, because Dr. Leonhardt and Dr. Cervi were not acting as “specialists”

in providing and/or supervising Wilson’s treatment, it is not clear that Rule 702(b) should apply to these defendants. Dr. Leonhardt asserts he is a specialist in psychiatry and addiction medicine but—relevant to this case—holds himself out as an internal medicine consultant to PCDC. The trial court found that while Dr. Leonhardt “is a physician and

1. Rule 702(b)(1)a.: “Same Specialty”

¶ 18 The trial court found, and Plaintiff does not dispute, that Dr. Hall does not

specialize in the same specialty as either Dr. Leonhardt or Dr. Cervi.

2. Rule 702(b)(1)b.: “Similar Specialty”

¶ 19 Plaintiff disputes the trial court’s finding that Dr. Hall does not practice in a

similar specialty as either Dr. Leonhardt or Dr. Cervi.

¶ 20 The test under Rule 9(j) is whether, at the time of filing the complaint it would

have been reasonable for Plaintiff to expect Dr. Hall to qualify as an expert, not

whether he would actually qualify, under Rule 702. See Moore, 366 N.C. at 31, 726

S.E.2d at 817 (“[T]he preliminary, gatekeeping question of whether a proffered expert

witness is ‘reasonably expected to qualify as an expert witness under Rule 702’ is a

different inquiry from whether the expert will actually qualify under Rule 702.”

(citing N.C. Gen. Stat. § 1A-1, Rule 9(j)(i))). “[T]he trial court must examine the facts

and circumstances known or those which should have been known to the pleader at

the time of filing, and to the extent there are reasonable disputes or ambiguities in

specialist in psychiatry and addiction medicine,” his “care as a specialist in psychiatry and addiction medicine was not alleged to be at issue in the complaint.” Similarly, Dr. Cervi asserts he is a specialist in internal medicine but—relevant to this case—holds himself out as a primary care or family practice provider. The trial court found that “Dr. Cervi is an internal medicine physician and was providing primary care to inmates at PCDC during the applicable time period,” and his “care as a specialist in internal medicine was not alleged to be at issue in the complaint[.]” Because Plaintiff did not raise the issue of the applicability of Rule 702(b) below or on appeal, we will analyze the facts and circumstances relevant to these defendants in light of Rule 702(b).

the forecasted evidence, the trial court should draw all reasonable inferences in favor

of the nonmoving party at this preliminary stage.” Preston, 374 N.C. at 189, 840

S.E.2d at 183-84 (quotation marks and citations omitted).

¶ 21 Neither the trial court nor Defendant cited specific authority, of which Plaintiff

knew or should have known, holding that a physician who is board certified in

internal medicine, pulmonary disease medicine, and critical care medicine providing

and supervising the care of a pneumonia patient is not practicing in a similar

specialty to that of an internist or a general practitioner providing and supervising

the care of a pneumonia patient. Furthermore, the trial court’s findings of fact

impermissibly draw inferences against Plaintiff.

¶ 22 In Finding 4, the trial court found, “Dr. Hall did not form any opinions as to

any care Dr. Leonhardt provided as a primary care provider and/or general

practitioner at the PCDC.” Likewise, in Finding 5, the trial court found, “Dr. Hall

[did not] form any opinions as to any care Dr. Cervi provided as an internal medicine

specialist at the PCDC.” However, Defendants repeatedly objected during Dr. Hall’s

Rule 9(j) deposition to any questions related to the opinions Dr. Hall formed as

outside the scope of the deposition. Thus, Dr. Hall’s deposition transcript does not

reflect whether Dr. Hall formed any opinions and does not reflect that he had not

formed any opinions.

¶ 23 The record evidence shows that Dr. Hall testified that he had been asked to

provide opinions on the standard of care for the treatment of a pneumonia patient,

the standard of care for the physicians supervising the medical staff, and the

standard of care for the medical staff providing that treatment. This is corroborated

by Plaintiff’s responses to Defendants’ Rule 9(j) interrogatories. Dr. Hall further

testified that his preliminary pre-suit review of the records was to review the course

of care provided by the entire medical team to treat Wilson’s pneumonia and

determine whether that care met the standard. Dr. Hall articulated specific

criticisms of Dr. Leonhardt’s and Dr. Cervi’s supervision of Wilson’s treatment in his

interrogatory answers, including as follows:

When recurrent tachycardia, recurrent fever, and persistent cough was identified in examinations conducted on Steven Wilson, as a patient with a report of prior pneumonia, Steven Wilson should have received a chest x- ray (which was ordered and later cancelled by Pitt County Detention Center), routine labs, such as a complete blood count, and/or additional antibiotic treatment. Such additional treatment was necessary to determine the extent of Steven Wilson’s condition and to prevent the deterioration of Steven Wilson’s condition that led to necrotizing pneumonia. The failure of ECMS, ECMS agents, representatives, and/or employees, and Dr. Cervi, and Dr. Leonhardt to properly supervise the medical staff at PCDC, review the records and recurrent health concerns of Steven Wilson; identify the need, scheduling, administering, and coordinating of proper non-emergent and emergency medical care rendered to Steven Wilson; provide proper care during such sick calls to Steven Wilson; identify the need for and coordinate proper diagnostic tests and examinations for Steven Wilson; identify the need for and coordinate the administration of appropriate

medications and consultations with specialty physicians for Steven Wilson; and identify the need for and coordinate an inpatient hospitalization for Steven Wilson fell below the standard of care.

Accordingly, Findings 4 and 5 impermissibly draw inferences against Plaintiff.

¶ 24 In Finding 14, the trial court found “Dr. Hall did not practice in a similar

specialty as any of the defendants which included within it the primary care of

patients during the applicable period.” To the extent this constitutes a finding of fact

it impermissibly draws inferences against Plaintiff. Dr. Hall testified that although

his practice was not a primary care practice, his practice included elements of

primary care as part of his treatment of patients.

¶ 25 To the extent this finding is more properly classified as a conclusion of law, it

misapplies the law in two ways. First, under Rule 9(j), it is not whether Dr. Hall

actually practices in a similar specialty but rather whether it was reasonable for

Plaintiff to expect Dr. Hall to qualify as one practicing in a similar specialty. Second,

under Rule 702(b)(1)b., the analysis is whether the proffered expert “[s]pecialize[s] in

a similar specialty which includes within its specialty the performance of the

procedure that is the subject of the complaint and ha[s] prior experience treating

similar patients.” N.C. Gen. Stat. § 8C-1, Rule 702(b)(1)b.

¶ 26 Here, the record reflects the “procedure” at issue is the treatment provided to

Wilson for pneumonia and whether the treatment provided, including the supervision

of that treatment, met the standard of care. At this preliminary stage, the record

reflects that Dr. Leonhardt and Dr. Cervi were physicians holding themselves out as

internal medicine practitioners, albeit in a primary care practice. See Formyduval v.

Bunn, 138 N.C. App. 381, 388, 530 S.E.2d 96, 101 (2000) (“Our case law indicates that

a physician who ‘holds himself out as a specialist’ must be regarded as a specialist,

even though not board certified in that specialty.” (citations omitted)). In the course

of their practice, they engaged in the practice of internal medicine–including, as it

relates to this case, as supervising physicians responsible for the course of care for

Wilson’s pneumonia.

¶ 27 Dr. Hall is board certified in internal medicine, pulmonary disease medicine,

and critical care medicine and specializes in pulmonary disease and critical care

medicine. Dr. Hall’s deposition testimony supports the inference that pulmonary

disease medicine and critical medicine are sub-specialties of internal medicine. In

his clinical practice, he regularly treats patients with pneumonia. Drawing all

reasonable inferences in Plaintiff’s favor from these facts, it was reasonable for

Plaintiff to expect Dr. Hall, who is board certified in internal medicine and pulmonary

disease and who regularly treats pneumonia patients, to be deemed similar in

specialty to internal medicine practitioners who provided care for a pneumonia

patient. Cf. Sweatt v. Wong, 145 N.C. App. 33, 38, 549 S.E.2d 222, 225 (2001) (general

surgeon who was board certified in laparoscopic procedures and who practiced as an

emergency room physician qualified as an expert against a general surgeon who

performed laparoscopic surgery where both engaged in the same diagnostic

procedures and the proffered expert had clinical diagnostic practice including with

patients showing similar signs and symptoms as decedent); Trapp v. Maccioli, 129

N.C. App. 237, 240-41, 497 S.E.2d 708, 710-11 (1998) (reasonable to expect an

emergency room physician who performed the same procedure to qualify as an expert

against an anesthesiologist for purposes of Rule 9(j)). There is nothing in the record

at this stage that would suggest a pulmonologist would treat pneumonia in any

manner different than an internist (or a psychiatrist/addiction specialist/internal

medicine consultant) acting as a primary care physician—or even more precisely at

this stage, that there would be any reasonable expectation on the part of a plaintiff

that there would be any difference.

¶ 28 In Finding 15, the trial court made a finding identical to Finding 14, but with

the added proviso that Dr. Hall did not practice “in a similar specialty as any of the

defendants which included within it the primary care of patients in a detention center

or correctional setting during the applicable period.” (Emphasis added). Similarly,

the trial court found in Finding 22 that “Dr. Hall has never cared for patients in a

detention or correctional setting and did not care for such inmates during the

applicable time period.” (Emphasis added) The trial court’s order does not explain

the significance of this added proviso, but it appears the trial court intended this

finding to relate to whether Dr. Hall had “prior experience treating similar patients.”

¶ 29 Rule 702(b)(1)b. requires an expert witness who is not in the “same specialty”

to have “prior experience treating similar patients” as the party against whom the

testimony is offered. A “similar patient” in this context is a patient with similar

medical conditions and treatment needs. Rule 9(j) does not require an expert witness

to practice in the same, or even similar, setting. Nonetheless, Dr. Hall testified that

he has experience treating inmates brought to the hospital for treatment and his

practice was to treat them in the same manner as any other patient, notwithstanding

the fact they may be handcuffed and under guard.

¶ 30 Moreover, to the extent the trial court’s findings conflate the requirements of

Rule 702(b) with the “same or similar community” standard of care under N.C. Gen.

Stat. § 90-21.12, the relevant community in this case is Pitt County, North Carolina,

or similar communities, as evidenced by Dr. Cervi’s interrogatory to Dr. Hall:

Explain in detail any and all opportunities you have had to learn the standard of care applicable to medical professionals or entities operating in Pitt County, North Carolina, or similar communities, and for each “similar community,” identify the community and provide the details that make these communities similar.

In response, Dr. Hall verified that he is familiar with the standard of care within Pitt

County and medical communities similarly situated to Pitt County, and specifically

articulated the basis of his familiarity.

¶ 31 The trial court thus impermissibly drew inferences against Plaintiff by finding

that Dr. Hall did not practice in a similar specialty to that of Dr. Leonhardt and Dr.

Cervi.

3. Rule 702(b)(2)

¶ 32 Rule 702(b) is conjunctive and requires a proffered expert to meet the

requirements laid out in subsections (b)(1) and (b)(2). Rule 702(b)(2)4 requires an

expert witness offering testimony against a specialist to have devoted a majority of

their professional time “[d]uring the year immediately preceding the date of the

occurrence that is the basis for the action” to “the active clinical practice of the same

specialty or a similar specialty which includes within its specialty the performance of

the procedure that is the subject of the complaint and have prior experience treating

similar patients” and/or the “instruction of students in . . . an accredited health

professional school or accredited residency or clinical research program in the same

specialty” as the party against whom the testimony is offered. N.C. Gen. Stat. § 8C-

1, Rule 702(b)(2).

¶ 33 We have already concluded that it was reasonable for Plaintiff to expect Dr.

Hall to be deemed similar in specialty to Dr. Leonhardt and Dr. Cervi. As the record

4We again note that because Dr. Leonhardt and Dr. Cervi were not acting as “specialists” in providing and/or supervising Wilson’s treatment, it is not clear that the more stringent requirements set forth in Rule 702(b)(2)a. and b. apply in this case.

shows, Dr. Hall spent the majority of his time since 2010, which includes the year

preceding Wilson’s care, in active clinical practice as a pulmonologist and critical care

medicine specialist. Indeed, as the trial court found, “Dr. Hall is a physician and

practices as a pulmonologist and critical care medicine specialist and the majority of

his professional time has been spent practicing in those specialties since 2010.”

Accordingly, Dr. Hall devoted a majority of his professional time during the year

immediately preceding the date of Wilson’s care to “the active clinical practice of . . .

a similar specialty which includes within its specialty the” care of pneumonia patients

and has “prior experience treating similar patients.” Id.

¶ 34 The trial court’s conclusion that “Plaintiff could not have reasonably expected

Dr. Hall to qualify as an expert witness against [Defendants ECMS, Dr. Leonhardt,

and Dr. Cervi] pursuant to Rule 702(b)-(d) based on what she knew or should have

known at the time of filing of the Complaint, and therefore, failed to substantively

comply with Rule 9(j)” is not supported by the findings or the evidence. The trial

court thus erred by dismissing Plaintiff’s complaint against Defendants ECMS, Dr.

Leonhardt, and Dr. Cervi for failure to substantively comply with Rule 9(j)(1).

C. Defendants McLean, Keech, Faulkner, Jordan, and Lymon

¶ 35 Plaintiff also argues that the trial court erred by dismissing her complaint

against nurses McLean, Keech, Faulkner, Jordan, and Lymon for failure to comply

with Rule 9(j).

¶ 36 North Carolina Rule of Evidence 702(d) sets forth the conditions a proffered

expert must meet to testify to the standard of care against nurses. Rule 702(d)

provides:

Notwithstanding subsection (b) of this section, a physician who qualifies as an expert under subsection (a) of this Rule and who by reason of active clinical practice or instruction of students has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical malpractice action with respect to the standard of care of which he is knowledgeable of nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants licensed under Chapter 90 of the General Statutes, or other medical support staff.

N.C. Gen. Stat. § 8C-1, Rule 702(d) (2020).

¶ 37 The trial court found the following facts:

17. Dr. Hall did not supervise the primary care of patients provided by FNPs, RNs, and/LPNs during the applicable time period. · 18. Dr. Hall did not know the qualifications of the nurse practitioner he supervised in his private practice of pulmonology. 19. Dr. Hall admitted that there are different types of nurse practitioners and that the training of nurse practitioners varies by type. 20. Dr. Hall did not practice family medicine or supervise a nurse practitioner in the practice of family medicine. 21. Dr. Hall has never supervised the primary care of patients provided by FNPs, RNs, and/LPNs in a detention

or correctional setting, including during the applicable time period.

¶ 38 First, that Dr. Hall did not know the qualifications of the nurse practitioner he

supervised and admitted there are different types of nurse practitioners with

different training is immaterial to the inquiry before us.5 The focus of the remainder

of the trial court’s findings in relation to Dr. Hall’s experience supervising nursing

staff and nurse practitioners is on the fact Dr. Hall did not practice in a family

practice, general primary practice, or specifically in a detention center. The

inference—again drawn against Plaintiff—is that these settings are so dissimilar

from Dr. Hall’s clinical and hospital practices, particularly as it relates to the course

of treatment for pneumonia patients, that it would be unreasonable for Plaintiff to

expect Dr. Hall to qualify as an expert. Accepting these practices may not be the

same, there is nothing in the record to support the inference they are not similar for

purposes of meeting the requirements of Rule 9(j). Defendants point to no authority

to support their position that under the circumstances present in this case it would

be unreasonable to expect Dr. Hall to qualify as an expert here.

¶ 39 To the contrary, the evidence at this preliminary stage reflects that Dr. Hall

has experience regularly supervising nursing staff and working with nurse

5Defendants cite no authority requiring a physician to identify specific credentials of individual nursing providers in order to survive dismissal under Rule 9(j).

practitioners and others in both the clinical and hospital setting, including

monitoring ongoing treatment of patients as a supervising physician, in addition to

his role as the medical director of his clinical practice implementing and monitoring

the procedures and overall standard of care. The question under Rule 702(d) is, by

reason of his clinical practice, whether Dr. Hall has knowledge of the applicable

standard of care for nursing staff and nurse practitioners. The evidence of record at

this stage is that in his practice Dr. Hall regularly supervises nursing staff and works

in conjunction with nurse practitioners to provide treatment for pulmonary

conditions (of which pneumonia is one). Moreover, it is evident from his limited

testimony that Dr. Hall, again based on his own clinical experience, is aware of

different types of nursing providers and the roles they play in patient care which he

oversees. From this, the proper inference to be drawn is that it is reasonable to expect

Dr. Hall to qualify as an expert based on his clinical experience in a similar specialty

which also includes within that specialty the treatment of pneumonia patients.

¶ 40 The trial court’s conclusion that “Plaintiff could not have reasonably expected

Dr. Hall to qualify as an expert witness against the defendants pursuant to Rule

702(b)-(d) based on what she knew or should have known at the time of filing of the

Complaint, and therefore, failed to substantively comply with Rule 9(j)” is not

supported by the evidence, the properly drawn inferences in favor of Plaintiff

therefrom, or the findings. The trial court thus erred by dismissing Plaintiff’s

complaint against Defendant nurses McLean, Keech, Faulkner, Jordan, and Lymon

for failure to substantively comply with Rule 9(j)(1).

¶ 41 We do not reach Plaintiff’s argument that the trial court erred by denying her

pending motion to qualify Dr. Hall as an expert under Rule 9(j)(2) and Rule 702(e).

III. Conclusion

¶ 42 For the foregoing reasons, we reverse the trial court’s order dismissing

Plaintiff’s complaint for failure to comply with the provisions of Rule 9(j) of the North

Carolina Rules of Civil Procedure and remand to the trial court for further

proceedings.

REVERSED AND REMANDED.

Judges HAMPSON and CARPENTER concur.