Tort Law for Paralegals – Proximate Cause chapter 7

Court of Appeals of North Carolina. Annette M. HAWKINS, As Administratrix of the Estate of Richard V. Hawkins, Jr., deceased, Plaintiff, v. EMERGENCY MEDICINE PHYSICIANS OF CRAVEN COUNTY, PLLC, Gary H. Lavine, M.D., Eagle Hospitalist Connections, LLC, Anubhi Goel, M.D., Carolinaeast Health System, doing business as CarolinaEast Medical Center, also doing business as Craven Regional Medical Center, Carolinaeast Physicians, William H. Bobbitt, III, M.D., and John A. Williams, III, M.D., Defendants. No. COA14-877. Decided: April 07, 2015 Butler Daniel & Associates, PLLC, by A.L. Butler Daniel and Erin K. Pleasant, for plaintiff. Cranfill Sumner & Hartzog, LLP, by Jaye E. Bingham-Hinch and Christopher M. Hinnant, for defendants. Appeal by plaintiff from order entered 2 April 2014 by Judge W. Allen Cobb, Jr. in Craven County Superior Court. Heard in the Court of Appeals 3 February 2015. Annette M. Hawkins ("plaintiff"), executrix of the estate of Richard V. Hawkins, Jr., appeals the trial court’s order granting summary judgment in favor of Gary H. Lavine, M.D., and Emergency Medical Physicians of Craven County, PLLC collectively "defendants"). 1. Background The facts of this case are largely undisputed. In the early morning hours of 15 January 2011, Richard Hawkins "Mr.Hawkins") woke up to take a p all to the floor, hitting his head on the way down. Mr. Haw dics noticed a laceration on the back of Mr. Hawkins’ head that was one inch long and one-half an inch wide. Mr. Hawkins was transported by ambulance to the Emergency Department ("ED") at CarolinaEast Medical Center at approximately 2:36 a.m. Dr. Gary Lavine ("Dr.Lavine") was the emergency physician on duty. Upon arrival, Dr. Lavine examined Mr. Hawkins. Mr. e, and he felt naus eated. Dr. Lavine ordered an echocardiogram (EKG), which s atrial fibrillation, or atrial flutter. The danger from atrial fibrillation is a stroke. Dr. Lavine also ordered a CT scan of Mr. Hawkins’ brain, which was interpreted by the radiologist on duty as normal, showing no active intrac bleed or acute abnormalities. Dr. Lavine consulted with Dr. William H. Bobbitt, Ill, the hospitalist on call, and arrangements were made to admit Mr. Hawkins to the m rn for Mr. Hawkins’ atrial fibrillation, Dr. Lavine ord Lovenox, which was administered to Mr. Hawkins in the ED at 6:21 a.m. on 15 Janua e of Lovenox is to prevent the formation of blood clots. According to the testimony in this case, Lovenox is a f cting, but not long lasting, anticoagulation with a half-life of approximately four and a half hours. Therefore, the single dose ordered by Dr. Lavine normally would have lost its ffectiveness by 6:30 p.m.- administered. Mr. Hawkins was adm ately 6:30 a.m. that same day. Because Dr. Lavine was employed by the hospital as an emergency physician only, he did not have privileges to practice inside the hospital. Therefore, Dr. Lavine was not responsible for Mr. Hawkins’ medical care after Mr. Hawkins was admitted. Dr. Lavine’s four-day shift ended on the morning of 15 Janua he ED for another four days. During Mr. Hawkins’ stay in the m t treating physicians ordered additional doses of anticoagulation medications, including Coumadin and aspirin. In addition, Dr. Bobbit ordered a dose of Lovenox every twelve hours. In total, Mr. Hawkins received four doses of Lovenox while he was admitted, plus the one dose he received in the ED. Mr. Hawkins was scheduled to be discharged from CarolinaEast on 17 January 2011, after undergoing a cardioversion procedure that was intended to treat his atrial fibrillation. H ever, after the proce med on the morning of 17 January, physicians had difficulty waking Mr. Hawkins from the anesthesia. Doctors ordered an MRI of Mr. Hawkins’ brain, which showed that Mr. Hawkins had suffered an intracranial brain hemorrhage. In an attempt to best treat this condition, Mr. Hawkins was transferred to the University of North Carolina hospital, where he died from complications due to the intracranial he On 2 September 2011, plaintiff filed suit against CarolinaEast Health System, Emergency Medicine Physicians of Craven County, PLLC; Dr. Gary H. Lavine; Eagle Hospitalist Connections, LLC; Dr. William H. Bobbit, Ill; Dr. Anubhi Goel; The Heart Center of Eastern Carolina, PLLC; and Dr. John A. Williams, III. On or about 18 November 2013, Dr. Lavine and Emergency Medical Physicians of Craven County, PLLC (collectively "defendants") moved for summary judgment on grounds that plaintiff failed to forecast sufficient evidence on the issue of causation. On 2 April 2014, Judge W. Allen Cobb, Jr., entered an order granting defendants’ motion for summary judgment. Plaintiff appeals the summary judgment order entered in defendants’ favor. I. Interlocutory Order First, we must consider whether this appeal is properly before this Court. In the case sub judice, summary judgment was granted as to one but not all of the defendants and the trial court did not certify that there was "no just reason for delay" as required by N .C. Gen.Stat. $ 1A-1, Rule 54(b) (2013). However, N.C. Gen.Stat. $ 1-277 (2013) and N.C. Gen. Stat. S 7A-27(b)(3)(a) and (b) (2013) allow this Court to consider an interlocutory appeal where the grant of summary judgment affects a substantial right. Id. Our Supreme Court has held that a grant of summary judgment as to fewer than all of the defendants affects a substantial right when there is the possibility of inconsistent verdicts, stating that it is ‘the plaintiff’s right to have one jury decide whether the conduct of one, some, all or none of the defer dants caused his injuries. This Court has created a two part test to show that a sub to show "(1) the same factual issues would be present in both trials hose issues exists Camp v. Leonard, 133 N.C.App. 554, 557-58, 515 S.E.2d 909, 912 (1999) (citations and internal quotations omitted). This case involves multiple defendants but the same factual issues. Therefore, "different proceedings may bring about inconsistent verdicts on those issues." Burgess v. Campbell, 182 N.C.App. 480, 483, 642 S.E.2d 478, 481 (2007). Because plaintiff’s suit alleges seve I overlapping acts of medical malpractice resulting in harm, we hold that it is best that one jury hears the case. Id. As such, we conclude that the trial court’s grant of summary judgment affects a substantial right, and this Court will hear the merits of plaintiff’s appeal. Ill. Standard of Review Plaintiff appeals from the order ting summary judgment in favor of defendants. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. $ 1A-1, Rule 56(c) (2013). "On appeal, an order allowing summary judgment is reviewed de novo." Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). Our Supreme Court has "em stic measure, and it should be used with caution. This is especially true in a negligen case[.]" Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979) (internal citation omitted). Upon a s the burden of establishing the lack of any triable issue . and may meet his or her ment of the opposing party’s claim is nonexistent[.]" Lord v. Be d 331, 334 (2008) (internal quotations and ations omitted). If met, the b a forecast of specific evidence of its ability to rima facie d. of Educ., 158 N. 705, 708, 582 S.E.2d 343, 345 (2003), "which requires medical malpra to prove, in part, that the treatment caused the injury. Not only must it meet our courts’ definition of proximate cause, but evidence connecting medical negligence to injury also must be probable, not merely a remote possibility." Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C.App. 299, 302, 704 S.E .2d 540, 543 (2011) (quotation and citation omitted) IV. Analysis Plaintiff contends that the trial court erred when it allowed defendants’ motion for summary judgment pursuant to N.C. Gen.Stat. $ 1A-1, Rule 56. Specifically, plaintiff argues that a genuine issue of fact exists as to whether Dr. Lavine’s negligence was the proxima We disagree. A plaintiff asserting medical negligence must offer evidence that establishes the following essential elements: "(1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff." Purvis v. Moses H. Cone Mem’l Hosp. Serv. Corp., 175 N.C.App. 474, 477, 624 S.E.2d 380, 383 (2006) (internal quotation marks and citation omitted). Proximate cause is a cause which in natural and continu roken by any new and inde pendent cause, produced the plaintiff’s injuries, and without which the injuries would not ha ccurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or c of a generally injurious nature, was probable under all the facts as they existed. Williamson v. Liptzin, 141 N.C.App. 1, 10, 539 S.E.2d 313, 319 (2000) (quoting Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)). A medical negligence plaintiff must rely on expert opinion testimony to establish proximate causation of the injury in a medical malpractice action. Cousart, 209 N.C.App. at 303, 704 S .E.2d at 543; see also Smith so Smithers v. Collins, 52 N.C.App. 255, 260, 278 S.E.2d 286, 289 (1981) (noting that expert testing generally necessary "when the standard of care and involving highly specialized knowledge beyond the ken of laymen"). "[An expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility." Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000). Plaintiffs are required to make medical negligence during a summary judgment hearing, "which includes articulating f probabilities." Cousart, 209 N.C.App. at 303-04, 704 S.E.2d at 543. Impor it cannot create a genuine issue of material fact by filing an aff prior sworn testimony." Pinczkowski v. Norfolk S. Ry. Co., 153 N.C.App. 435, 440, 571 S.E.2d 4, 7 (2002); see also Carter v. West Am. Ins. Co., 190 N.C.App. 532, 539, 661 S.E.2d 264, 270 (2008) ("[A] non-m not create an issue of fact to defeat summary judgment simply by filing an affidavit

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A. Admissibility of Affidavits Plaintiff contends that the affidavits of expert witnesses Dr. John Meredith, Dr. Harry Shaw Strothers, and Dr. Robert Stark were sufficient to survive summary judgment on the issue of proximate cause. Further, assuming arguendo that the affidavits were inadmissible, plaintiff argues that the collective deposition testimony of the expert witnesses was sufficient to establish that Dr. La cause of Mr. Hawkins’ death. To the contrary, defendants argue that the trial court erred in admitting the affidavits executed by Drs. Meredith, Stark, and Strothers because the experts’ prior deposition testimony contradicted the statements made in their affidavits. Further, without the admission of the affidavits, defendants argue that plaintiff failed to establish the proximate cause necessary o survive summary judgment. After careful review, we agree with defendants in tha opinions offered by plaintiff regarding causation-set forth in three affidavits-cannot be relied upon to establish proximate cause. In addition, we hold that without these affidavits, plaintiff has failed to put forth the requisite evidence to survive summary judgment on the issue of causation. The record indicates that between February and May 2013, discovery depositions were taken by defense counsel, and the following testimony was elicited: Dr. Meredith: Q. [Would you tell me how you believe Dr. Lavine breached the standard of care in his treatment of [Mr. Hawkins], please? A. It’s my professional opinion the standard of care was breached by Dr. Lavine when he provided anticoagulation to a patient-to this patient who had suffered a closed-head injury. Q. Let me ask you this. Will you have any opinions on the issue of causation? Are you familiar with that term? A. I am familiar with that term, and my response to that is no. Dr. Strothers: [Q. Was there a violation in the standard of care?] A. [Mly understanding is that Dr. Bobbitt wrote the admission orders. So Dr. Lavine wouldn’t have been responsible for the care afterwards, except that he placed him on the Lovenox. I think since there had only been one dose of Lovenox, that Mr. Hawkins’] odds would have improved, because he would have had what’s thought to be a lesssant [sic] for anticoagulatione of Lovenox. But I can’t say what the change in those odds would have been. Dr. Stark: Q. [i]f I understand what you’re saying, is that your opinions will focus on how the care that was rendered by Dr. Williams caused or contributed to the death of [Mr. Hawkins]? A. Yes However, approximately one week before the calendared summary judgment hearing, Dr. Meredith, Dr. Strothers, and Dr. Stark executed separate affidavits in which each independently provided: In my opinion, starting this patient (Mr. Hawkins) on a course of Lovenox by Dr. Lavine was unquestionably a direct cause of his ultimate demise. During the depositions, these expert witnesses did not opine on the issue of causation. Specifically, none suggested that r. Lavine’s conduct did cause or probably caused Mr. Hawkins’ death. In fact, when asked if he had an opinion on causation, Dr. Meredith expressly responded "no," he did not have an opinion on the issue of causation. Despite this clear estimony, Dr. Meredith nevertheless testified in his affidavit that Dr. Lavine’s conduct "was unquestionably a direct cause of [Mr. Hawkins] ultimate demise." This statement plainly contradicted Dr. Meredith’s ition testimony. Dr. Strothers opined that Mr. Hawkins’ odds would have "improved" had he only received one a statement in stark contrast to his affidavit testimony. Dr. Stark would not opine on Dr. Lavine’s conduct; he addressed only the alleged negligence of Dr. Williams in the deposition. Yet, in his affidavit, he too provided that Dr. Lavine’s conduct "was unquestionably a direct cause of [Mr Hawkins’] ultimate demise." The experts’ affidavit testimony clearly contradict testimony. In Rohrbough v. Wyeth Labs., Inc., 16 F.2d 970, 974 (4th Cir. 1990), a Fourth Circuit case usart, an expert witness testified during a deposition concerning the possible ways by which the DTP vaccine mi ised neurological damage to the plaintiff, but the expert de ually caused the plaintiff’s specific injuries. he Fourth Circuit noted th e deposition testimony. d. at 974. However, attac herein the expert stated: "It s my opinion that [defer gical injuries from which he has suffered and c ent alone would ppear to defeat defenda notion for sum at the expert’s affidavit was "in such conflict with Is earlier deposition testin am issue of fact." Id. at 975. The Fourth e of fact is to determine which wo conflicting versi (citation and quotation omitted). Therefore the expert’s ment evidence given that the expert avoided making a statement during the d used the injury. Similarly, in Cousart, expert witness Dr. Allen did not opine during his deposition testimony that a causal link existed between the defendants’ particular n and the plaintiff’s injuries. Cousart, 209 N.C.App. at 308, 704 S.E.2d at 46. However, when faced w udgment, Dr. Allen stated by way of affidavit that "it and always has be of labor and delivery by the Defendants more likely than not ca ial plexus injury[.]" Id. This Court opined hat the "conflicts between Dr. Allen’s deposition trial court with only a credibility issue, not a genuine issue of material fact." Id. it held that it would be "improper" to consider the affidavit test Here, it appears that in an its shortly before the summary judgment hearing in an material fact. However, the conflict between the experts’ deposition testim ine issue of material fact. See J. As such, it is improper for this Court to consider imony of the expert wit esses in determining whether plaintiff raised a genuine issue of m material fact on the issue of proximate cause. We must now discern whether plaintiff submitted other proximate cause evide of material fact. B. Proximate Causation Plaintiff argues that she presented sufficient evidence to raise a genuine issue of material fact on causation even without he experts’ affidavit testimony. We disagree. Proximate ca and without which it would not have occurred, and one from which any man of ordinary prudence een that such a result was probable under all of the facts then existing ." Kanoy v. Hinshaw, 273 N.C. 418, 426, 160 S.E.2d 296, 302 (1968). There is a two-pronged formula for proximate cause, which consists of a cause reseeability. If a plaintiff is unable to show a cause-in-fa sider the separate proximate cause iss seeability. n arguing that she pres ented sufficient evidence of direct causation to raise a genuine issue of material fact concerning proximate cause, plaintiff directs this Court’s attention to the deposition testimony of Dr. Meredith, Dr. Kenneth Fischer, and Dr. Strothers. Specifically, plaintiff argues that these experts "testified in their discovery depositions that the Lovenox ordered by Dr. Lavine wa se of Mr. Hawkins’ death his deposition, Dr. Meredith testified appropriate in an elderly patient who has sustained a closed-head injury or a atly outweighed the benefit of starting anticoagulation." When asked if the Lovenox ord tered to Mr. Hawkins actually caused Mr. lawkin’s death, Dr. Meredith respond uted significantly." However, when asked, "[will you have any opinions on the iss swered, "I am familiar with that term, and my response ovenox ordered by Dr. Lavine in the ED caused Mr. Hawkins’ bleed which led to his death, Dr. Meredith stated, "I can’t answer that." r. Fischer testified that "certainly most importantly the four doses of Lovenox would have had a substantial effect on [Mr Hawkins’] bleeding times and the progression of the bleeding in the interval." Dr. Fischer also opined that "the Lovenox was the principal causative agent for the bleeding." When asked whether Dr. Lavine violated the standard of care, Dr. Strothers testified that "my understanding is that Dr. Bobbitt wrote the admission orders. So Dr. Lavine wouldn’t have been responsible for the care afterwards, except that he placed him on the Lovenox. think since there had only been one dose of Lovenox, that [Mr. Hawkins’] odds would have mproved, because he would have had what’s thought to be a lesssant [sic] for antic anticoagulation dose of Lovenox. But I can’t say what the change in tho would have been." Again, a medical neg causation of the injury n a medical malpract stimony was sufficient to survive summary judgment on the the dose of Lovenox ordered by Dr. Lavine in the ED was th specifically testified hat he had no opini ontext of the deposition, Dr. Fischer’s mention of the "four dose administered to Mr. Hawkins once he was admitted, which is not cher never specified that Dr. Lavine probably caused Mr. Hawkins’ de or starting him on Lovenox. Dr. Strothers’ estimony suggested that , had Mr. H ins only received one dose of the drug, Mr. Hawkins fied that Mr. Hawkins would not have or proba Lovenox to Mr. Hawkins in the ED. Cf. Lord, 191 N.C.App. at te cause where neither of he plaintiff’s expert witnesses were able to testify that the plaintiff’s vision would probably be better today had the efendants initiated steroid treatment sooner).

1. What happened in this case?

2. Proximate cause is an important element in any negligence case. What problem did the plaintiff have with the expert evidence in this case in regard to proximate cause?

3. Were plaintiff’s experts conclusive in their testimony regarding proximate cause in the case?

4. What was the result of the court’s finding that the plaintiff’s expert testimony was conflicting?

5. Does it appear that Dr. Lavine was actually negligent in this case? Do you believe that the court concluded that Dr. Lavine was not negligent, and that the conclusion affected the outcome of this case?

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