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NO. COA10-1214 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 RONALD CROCKER and PAULETTE CROCKER as Co-Administrators of the Estate of REAGAN ELIZABETH CROCKER, Plaintiffs, v. H. PETER ROETHLING, M.D. and WAYNE WOMEN'S CLINIC, P.A., Defendants. Johnston County No. 04 CVS 02571

1.

Medical Malpractice -- expert witness -- summary judgment The trial court did not abuse its discretion in a medical malpractice action by excluding plaintiff's sole expert witness where there was ample support in the record for a finding that the witness was not qualified to testify. While the witness claimed on voir dire to have familiarity with smaller hospitals similar to Wayne Memorial, he had never practiced at these hospitals, he did not demonstrate that the rarely performed maneuver at issue in this case was the standard of care in Goldsboro, and, a national standard of care cannot be applied to this case, contrary to the witness's testimony.

2.

Appeal and Error -- remand -- scope -- not exceeded The trial court did not exceed the scope of a remand from the North Carolina Supreme Court by granting defendants' motion for summary judgment. Plaintiffs asserted that the remand was only for a voir dire examination of their expert witness, but plaintiffs did not recognize that the Supreme Court was reviewing a summary judgment for defendants. Once the voir dire was done and the trial court affirmed its earlier decision to exclude the testimony, it was proper for the court to reissue the summary judgment for defendant.

3.

Trials -- remand -- law of the case -- not applied Contrary to plaintiffs' contention, the trial court in a medical malpractice case did not hold on remand that the law of the case doctrine required that summary judgment be granted for defendants. The court's statement that summary judgment would have to be granted referred to the exclusion of plaintiffs' only expert witness after the voir dire required by the remand.

4.

Civil Procedure -- summary judgment -- notice -- appearance at hearing Plaintiffs waived any argument on appeal that they did not receive proper notice of defendants' motion for summary judgment by participating in the summary judgment hearing and not objecting or moving for a continuance.

NO. COA10-1214 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 RONALD CROCKER and PAULETTE CROCKER as Co-Administrators of the Estate of REAGAN ELIZABETH CROCKER, Plaintiffs, v. H. PETER ROETHLING, M.D. and WAYNE WOMEN'S CLINIC, P.A., Defendants. Appeal by Plaintiffs from order entered 23 February 2010 by Judge W. Russell Duke, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 12 April 2011. Law Offices of Wade E. Byrd, P.A., by Wade E. Byrd, for Plaintiffs-Appellants. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Samuel G. Thompson, William H. Moss, and Robert E. Desmond, for Defendants-Appellees. BEASLEY, Judge. Ronald and Paulette Crocker, as co-administrators of the Estate of Regan Elizabeth Crocker, (Plaintiffs) appeal from the trial court's grant of summary judgment to H. Peter Roethling, M.D. (Dr. Roethling) and Wayne Women's Clinic, P.A. (the Johnston County No. 04 CVS 02571

clinic).

For the following reasons, we affirm.

-2On 14 September 2001, Paulette Crocker (Mrs. Crocker) was admitted induction dystocia, to of an Wayne Memorial Hospital was (Wayne Memorial) by for an

labor.

Delivery

complicated where the

shoulder shoulder

obstetrical

emergency

fetal

becomes impacted against the maternal pubic bone.

A procedure

that obstetricians can perform to relieve this condition is the Zavanelli maneuver, where the fetal head is pushed back into the vagina and uterus, and the fetus is delivered by cesarean

section.

Dr. Roethling attempted several maneuvers to relieve

the shoulder dystocia, but did not try the Zavanelli maneuver. Plaintiffs' infant daughter, Reagan Elizabeth Crocker, died on 28 September 2003 from injuries that she sustained during

delivery. On 9 September 2004, Plaintiffs filed a medical malpractice action against Dr. Roethling and the clinic (collectively

Defendants).

Dr. John Elliott, an Obstetrician/Gynecologist who

specializes in high risk obstetrics, served as the sole expert witness for Plaintiffs. He contended that Dr. Roethling

violated the applicable standard of care by not attempting the Zavanelli maneuver. Defendants moved for summary judgment on

the basis that Dr. Elliott was incompetent to testify as an expert witness. The trial court granted summary judgment to

-3Defendants on 1 March 2006. Plaintiffs appealed and this Court See Crocker

twice affirmed the order granting summary judgment.

v. Roethling (Crocker I), 182 N.C. App. 528, 642 S.E.2d 549 (2007), aff'd on reh'g, 184 N.C. App. 377, 646 S.E.2d 442 (2007) (unpublished). On discretionary review, our Supreme Court voted

to remand for a voir dire examination of Plaintiffs' expert to determine the admissibility of the proposed expert testimony. Crocker v. Roethling (Crocker II), 363 N.C. 140, 675 S.E.2d 625 (2009). On 23 February 2010, the trial court held the voir dire hearing. Dr. Elliott stated that for 27 years he had practiced

high risk obstetrics in Maricopa County, Arizona, an area with a population of approximately 4.5 million. that he had neither performed nor He further testified a Zavanelli

witnessed

maneuver, and was unaware of any of the other 14 high risk obstetricians maneuver. in his practice ever having performed this

He also did not know whether a Zavanelli maneuver had

ever been performed either in Goldsboro, or anywhere else in the state of North Carolina. experiences as an expert However, based on his practice, his witness reviewing approximately 600

malpractice cases from 45 states, and his belief "that there is a national standard of care for most things," Dr. Elliott stated

-4that he was familiar with the standards of practice of a

physician practicing in a hospital such as Wayne Memorial. Upon the conclusion of voir dire, the trial court ruled that the expert was incompetent to testify and granted summary judgment to Defendants. I. To prevail in a medical malpractice action, the plaintiff must show "(1) the applicable standard of care; (2) a breach of such standard by and of care by the were defendant; (3) the injuries by such

suffered breach;

the (4)

plaintiff the

proximately to

caused the

damages

resulting

plaintiff."

Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998). Plaintiffs' burden with respect to the applicable standard of care is to show by the greater weight of the evidence that Dr. Roethling's care "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." satisfy this burden, N.C. Gen. Stat.

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