Webb v. Wake Forest University Baptist Medical Center

NO. COA13-221

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

LESLIE WEBB, Administratrix of the
Estate of ROBERT B. WEBB, III,
Plaintiff-Appellant,

v. Forsyth County
No. 10-CVS-1990
WAKE FOREST UNIVERSITY BAPTIST
MEDICAL CENTER, UNIVERSITY DENTAL
ASSOCIATES, NORTH CAROLINA BAPTIST
HOSPITAL, WAKE FOREST UNIVERSITY,
WAKE FOREST UNIVERSITY PHYSICIANS,
SHILPA S. BUSS, DDS, and REENA
PATEL, DDS,
Defendants-Appellees.

Appeal by Plaintiff from order entered 27 August 2012 by

Judge John O. Craig, III in Superior Court, Forsyth County.

Heard in the Court of Appeals 10 September 2013.

Kennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L.
Kennedy, III and Harvey L. Kennedy, for Plaintiff-
Appellant.

Coffey Bomar LLP, by Tamura D. Coffey and J. Rebekah
Biggerstaff, for Defendants-Appellees Wake Forest
University Baptist Medical Center, North Carolina Baptist
Hospital, Wake Forest University, and Wake Forest
University Physicians.

Carruthers & Roth, P.A., by Kenneth L. Jones and Michal E.
Yarborough, for Defendant-Appellee University Dental
Associates.

McGEE, Judge.
 -2-
Leslie Webb, Administratrix of the Estate of Robert B.

Webb, III, (“Plaintiff”), filed a complaint against Wake Forest

University Baptist Medical Center, University Dental Associates,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena

Patel, DDS (“Defendants”) on 13 July 2010. Plaintiff alleged

that Robert B. Webb, III, (“the Decedent”) was under general

anesthesia for oral surgery, teeth cleaning, and the extraction

of four teeth performed on 13 March 2008. The Decedent was sent

home the same day following the procedure. He became

unresponsive at home on 14 March 2008 and was pronounced dead on

15 March 2008. Plaintiff alleged that Defendants were negligent

in their treatment of the Decedent and that this negligence was

the proximate cause of his death.

Defendants Wake Forest University Baptist Medical Center,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena

Patel, DDS, filed an answer on 30 September 2010. Defendant

University Dental Associates filed a separate answer on 5

October 2010.

Defendants Wake Forest University Baptist Medical Center,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena
 -3-
Patel, DDS, filed a motion for summary judgment on 26 July 2012.

Defendant University Dental Associates filed a separate motion

for summary judgment on 31 July 2012.

The trial court granted the motions for summary judgment as

to “any and all allegations, claims, and causes of action

involving the dental care provided to [the D]ecedent.” The

trial court also granted the motion for summary judgment “as to

any and all allegations, claims, and causes of action that

relate to the dental care provided to [the D]ecedent involving

the alleged negligence of [D]efendants Wake Forest University

Baptist Medical Center, North Carolina Baptist Hospital, Wake

Forest University, and Wake Forest University Physicians.” The

trial court denied Defendants’ summary judgment motion relating

to anesthesia care.

Plaintiff appeals.

I. Summary Judgment Rule

Plaintiff argues the trial court erred in granting

Defendants’ motions for summary judgment relating to dental care

of Decedent. A trial court should grant a motion for summary

judgment only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that any party is entitled to a judgment
 -4-
as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013);

see also Lord v. Beerman, 191 N.C. App. 290, 293, 664 S.E.2d

331, 334 (2008).

Our Supreme Court has “emphasized that summary judgment is

a drastic measure, and it should be used with caution. This is

especially true in a negligence case[.]” Williams v. Power &

Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979)

(internal citation omitted). The purpose of N.C.G.S. § 1A-1,

Rule 56 “is to eliminate formal trials where only questions of

law are involved.” Lowe v. Bradford, 305 N.C. 366, 369, 289

S.E.2d 363, 366 (1982). “An issue is ‘genuine’ if it can be

proven by substantial evidence and a fact is ‘material’ if it

would constitute or irrevocably establish any material element

of a claim or a defense.” Id.

“The moving party carries the burden of establishing the

lack of any triable issue.” Lord, 191 N.C. App. at 293, 664

S.E.2d at 334. “The movant may meet his or her burden by

proving that an essential element of the opposing party’s claim

is nonexistent, or by showing through discovery that the

opposing party cannot produce evidence to support an essential

element of his claim[.]” Id. (internal quotation marks

omitted). “Generally this means that on undisputed aspects of

the opposing evidential forecast, where there is no genuine
 -5-
issue of fact, the moving party is entitled to judgment as a

matter of law.” Lowe, 305 N.C. at 369, 289 S.E.2d at 366

(internal quotation marks omitted).

Once the moving party has met its initial burden, the

nonmoving party must produce “a forecast of evidence

demonstrating that the [nonmoving party] will be able to make

out at least a prima facie case at trial” in order to survive

summary judgment. Diggs v. Novant Health, Inc., 177 N.C. App.

290, 294, 628 S.E.2d 851, 855 (2006) (alteration in original).

“The opposing [nonmoving] party need not convince the court that

he would prevail on a triable issue of material fact but only

that the issue exists.” Lowe, 305 N.C. at 370, 289 S.E.2d at

366.

II. Analysis

Plaintiff’s complaint and Defendants’ answers show there

are genuine issues of material fact in this matter. The

complaint alleged the following:

XII. That the oral surgery performed on [the
Decedent] lasted 8 hours and 20 minutes,
approximately four times longer than the
time for the procedure represented to the
parents of [the Decedent]. The oral surgery
consisted of teeth cleaning and the
extraction of four teeth. The patient was
under general anesthesia for over 8
hours. . . .

XIV. That the oral surgeons and the
anesthesia treatment team were aware of the
 -6-
fact that a known risk of having a patient
under general anesthesia for an extensive
period of time was that the patient could
develop pneumonia.

XV. That in spite of the lengthy surgery and
the extended period of time that the patient
was under general anesthesia, upon
information and belief, the anesthesia
treatment team in consultation with the two
oral surgeons made the decision to send [the
Decedent] home on March 13, 2008 post
surgery.

XVI. On March 14, 2008, [the Decedent]
became unresponsive at home. He was rushed
by EMT to Moses Cone Hospital in Greensboro,
North Carolina. At Moses Cone Hospital,
[the Decedent] was diagnosed as having
cerebral edema on CT, anoxic brain damage
and cardiac arrest. . . .

XVIII. An autopsy was performed, and the
cause of death was determined to be
bronchopneumonia following comprehensive
dental care under general anesthesia.

Defendants Wake Forest University Baptist Medical Center,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena

Patel, DDS, denied all of the above allegations in their answer.

Defendant University Dental Associates filed a separate answer

in which it also denied the above allegations.

Defendants, in their briefs to this Court and at oral

argument, focused on the admissibility of expert testimony under

N.C. Gen. Stat. § 8C-1, Rule 702(b). The trial court also
 -7-
stated during the hearing that Plaintiff had “run squarely into

a brick wall with Rule 702(b).”

However, we note that the record contains no motion to

exclude Plaintiff’s expert witnesses. Rather, at the hearing on

Defendants’ motions for summary judgment, Defendants argued

Plaintiff failed to show causation, as follows:

Your Honor . . . we will concede that
[Plaintiff has] three expert witnesses, all
who have testified about standard of care
issues. That is not what we’re arguing
about. We are strictly arguing about
whether or not they had made a causal link
with these three experts to the dental care
in the case.

Medical malpractice encompasses actions arising from the

performance of dental care. “[T]he term ‘medical malpractice

action’ means a civil action for damages for personal injury or

death arising out of the furnishing or failure to furnish

professional services in the performance of medical, dental, or

other health care by a health care provider.” N.C. Gen. Stat.

§ 90-21.11 (2009).1

“To survive a motion for summary judgment in a medical

malpractice action, a plaintiff must forecast evidence

1 Our General Assembly amended this statute in 2011. 2011 N.C.
Sess. Laws ch. 400 § 5. The amendment applies “to causes of
actions arising on or after” 1 October 2011. Id. at § 11. The
cause of action in the present case arose on or about 13 March
2008. The amendment therefore is not applicable to the present
case.
 -8-
demonstrating that the treatment administered by [the] defendant

was in negligent violation of the accepted standard of medical

care in the community[,] and that [the] defendant’s treatment

proximately caused the injury.” Lord, 191 N.C. App. at 293-94,

664 S.E.2d at 334 (alterations in original) (internal quotation

marks omitted). “Proximate cause is a cause which in natural

and continuous sequence, unbroken by any new and independent

cause, produced the plaintiff’s injuries, and without which the

injuries would not have occurred[.]” Id. at 294, 664 S.E.2d at

334.

In the present case, Plaintiff forecast evidence showing

that the treatment administered by Defendants was in negligent

violation of the accepted standard of care in the community.

Dr. Behrman, a Doctor of Dental Medicine, testified on behalf of

the Decedent in a deposition that “[t]here was no clearance

obtained on a significantly medically compromised person by the

physician of record, the physician caring for him[.]” Dr.

Behrman testified as follows regarding the necessity to consult

with the physician of record prior to the dental procedure:

This is bread and butter of training
programs, the way we teach the residents,
the way we’ve been taught; using the medical
providers, obtaining the consult and such.
This is what we do and what we’re trained to
do, what I expect my residents to do, what I
have to demonstrate during accreditation
visits within a residency program.
 -9-

Plaintiff also forecast evidence, in depositions and in the

complaint, of the proximate cause of death. The portion of Dr.

Behrman’s deposition relevant to causation is quoted below:

[Plaintiff’s attorney]. In your expert
opinion was the violation of the standard of
care that you testified about here today a
proximal contributing cause to [Decedent]
developing bronchopneumonia?

. . . .

[Dr. Behrman]. Within my knowledge as an
oral and maxillofacial surgeon, yes.

Plaintiff also alleged in the complaint that an “autopsy

was performed, and the cause of death was determined to be

bronchopneumonia following comprehensive dental care under

general anesthesia.” The doctor who performed the Decedent’s

autopsy, Dr. Gaffney-Kraft, stated in an affidavit filed by

Plaintiff in this action that “it is [her] opinion within

reasonable medical certainty that the cause of death of [the

Decedent] was bronchopneumonia following comprehensive dental

care including exam, radiographs, cleaning, restoration and

extractions which were performed under general anesthesia

shortly before his death[.]” Dr. Gaffney-Kraft also indicated

in her report of autopsy examination that Decedent’s cause of

death was bronchopneumonia.
 -10-
As stated above, the trial court should grant a motion for

summary judgment only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that any party is entitled to a judgment

as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c); see also

Lord, 191 N.C. App. at 293, 664 S.E.2d at 334. “Where there are

genuine, conflicting issues of material fact, the motion for

summary judgment must be denied so that such disputes may be

properly resolved by the jury as the trier of fact.” Howerton

v. Arai Helmet, Ltd., 358 N.C. 440, 468, 597 S.E.2d 674, 692

(2004).

Plaintiff contends that she “presented a two-tier approach

on causation.” First, Dr. Behrman opined that the violation of

the standard of care caused the Decedent’s bronchopneumonia;

second, the bronchopneumonia caused the death of the Decedent.

Defendants contend the testimony of Dr. Behrman fails to

establish proximate cause because his testimony fails to satisfy

N.C.G.S. §8C-1, Rule 702 (2009).2

2 Our General Assembly amended N.C.G.S. § 8C-1, Rule 702 in 2011.
2011 N.C. Sess. Laws ch. 283 § 1.3. The amendments apply “to
actions commenced on or after” 1 October 2011. Id. at § 4.2.
The amendments are not applicable to the present case because
the action was commenced on 13 July 2010.
 -11-
III. Admissibility of Expert Testimony

Despite the fact that this matter is before us on appeal

from the grant of summary judgment, we address the admissibility

of expert testimony because of our Supreme Court’s analysis in

Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009). In

Howerton, our Supreme Court recognized the differences in the

two issues and commented that a party “will not likely fare as

well” by moving for summary judgment without a preliminary

admissibility determination “because of the inherent procedural

safeguards favoring the non-moving party in motions for summary

judgment.” Howerton, 358 N.C. at 468, 597 S.E.2d at 692; see

also Day v. Brant, ___ N.C. App. ___, ___, 721 S.E.2d 238, 247,

disc. review denied, 366 N.C. 719, 726 S.E.2d 179 (2012) (“Our

Supreme Court, in Howerton, cautioned against the merging of the

two issues.”).

The decision in Crocker was composed of three opinions from

the Supreme Court. All three opinions analyze the admissibility

of expert testimony, regardless of the facts that the appeal was

from an order granting summary judgment and the record indicated

no motion to exclude expert testimony. Crocker, 363 N.C. at

143, 675 S.E.2d at 629. Our Supreme Court concluded that the

trial court’s ruling on summary judgment resulted from “a

misapplication of Rule 702[.]” Id. at 144, 675 S.E.2d at 629.
 -12-
Because our Supreme Court in Crocker analyzed the admissibility

of expert testimony even in the absence of a motion to exclude

expert testimony, we analyze the admissibility of expert

testimony in the present case.

“The trial court must decide the preliminary question of

the admissibility of expert testimony under the three-step

approach adopted in State v. Goode, 341 N.C. 513, 461 S.E.2d 631

(1995).” Crocker, 363 N.C. at 144, 675 S.E.2d at 629. “The

trial court thereunder must assess: 1) the reliability of the

expert’s methodology, 2) the qualifications of the proposed

expert, and 3) the relevance of the expert’s testimony.” Id.

A. Reliability of the Expert’s Methodology

As to the first step in the Goode analysis of the

admissibility of expert testimony, Plaintiff contends that Dr.

Behrman “is unquestionably qualified as an expert in the field

of oral surgery.” Defendants contend Plaintiff’s expert

testimony is “not sufficiently reliable to be admissible[,]”

citing Azar v. Presbyterian Hosp., 191 N.C. App. 367, 663 S.E.2d

450 (2008). When testimony on medical causation “is based

merely upon speculation and conjecture, however, it is no

different than a layman’s opinion, and as such, is not

sufficiently reliable to be considered competent evidence on

issues of medical causation.” Id. at 371, 663 S.E.2d at 453.
 -13-
However, as discussed above, the opinions of Dr. Behrman

and Dr. Gaffney-Kraft were not based merely upon speculation or

conjecture. Neither Dr. Behrman nor Dr. Gaffney-Kraft used the

words “probably” or “possibly” or otherwise indicated that their

opinions were speculative or conjectural. Rather, Dr. Behrman

answered the question as to his opinion on causation in the

affirmative. Similarly, Dr. Gaffney-Kraft stated that “it is

[her] opinion within reasonable medical certainty that the cause

of death of [the Decedent] was bronchopneumonia[.]” The fact

that Plaintiff’s causation testimony is presented in two steps,

(1) that the dental care caused Decedent’s bronchopneumonia and

(2) that the bronchopneumonia caused Decedent’s death, does not

affect this analysis. Defendants cite no case holding that

causation evidence may not be presented in sequential steps, and

our research reveals none. Defendants have not shown

Plaintiff’s expert testimony is not sufficiently reliable to be

considered competent evidence on causation.

B. Qualifications of the Proposed Expert

As to the second step in the Goode analysis of the

admissibility of expert testimony, Plaintiff contends that,

because Dr. Behrman is an oral surgeon who performs surgical

operations on patients, and the practice of medicine includes

surgery, “there is an overlap between” statutes regulating the
 -14-
practice of medicine and the practice of dentistry. Defendants

contend Plaintiff’s experts “cannot be qualified to render

expert opinions on medical causation pertaining to areas of the

body outside the oral cavity.”

Defendants cite Martin v. Benson, 125 N.C. App. 330, 481

S.E.2d 292 (1997), rev’d on other grounds, 348 N.C. 684, 500

S.E.2d 664 (1998), in support of their contention that only a

medical doctor would be qualified to opine as to causation of

bronchopneumonia. In Martin, this Court held the trial court

erred in allowing a neuropsychologist to opine as to a closed

head injury. Id. at 334-37, 481 S.E.2d at 294-96. However, our

Supreme Court held that the plaintiffs waived the right to

appellate review of the testimony because the plaintiffs failed

to object to the evidence at the time it was offered at trial.

Martin, 348 N.C. at 685, 500 S.E.2d at 665.

“If scientific, technical or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion.” N.C.G.S. § 8C-1,

Rule 702(a). “[T]he opinion testimony of an expert witness is

competent if there is evidence to show that, through study or

experience, or both, the witness has acquired such skill that he
 -15-
is better qualified than the jury to form an opinion on the

particular subject of his testimony.” Terry v. PPG Indus.,

Inc., 156 N.C. App. 512, 518, 577 S.E.2d 326, 332 (2003)

(licensed clinical psychologist was qualified to testify

regarding the cause of depression).

This Court in Martin considered “Rule 702 in light of this

State’s statutes defining the practice of ‘psychology.’”

Martin, 125 N.C. App. at 336, 481 S.E.2d at 295. This Court

noted that N.C. Gen. Stat. § 90-270.3 (1993) required licensed

psychologists to assist clients in obtaining professional help

for problems that fall outside the bounds of the psychologist’s

competence, including “the diagnosis and treatment of relevant

medical” problems. Id. at 337, 481 S.E.2d at 296. From this

statute, this Court concluded it was evident “that the practice

of psychology does not include the diagnosis of medical

causation.” Id. By contrast, in the present case, no statute

requires dentists to assist their clients in obtaining

professional help for problems outside the boundaries of the

dentist’s competence. Martin is thus distinguishable from the

present case.

“The essential question in determining the admissibility of

opinion evidence is whether the witness, through study or

experience, has acquired such skill that he was better qualified
 -16-
than the jury to form an opinion on the subject matter to which

his testimony applies.” Diggs, 177 N.C. App. at 297, 628 S.E.2d

at 856 (holding that a nurse qualified to opine as to causation

of injury arising from gallbladder surgery).

Dr. Behrman earned a Doctor of Dental Medicine degree,

completed an internship in anesthesia and a residency in oral

and maxillofacial surgery, is licensed by the New York Board of

Dentistry, and has been certified by the American Board of Oral

and Maxillofacial Surgeons since 1986. As Chief of the Division

of Dentistry, Oral and Maxillofacial Surgery since June 1996,

Dr. Behrman oversees residency programs that provide over 10,000

patient visits each year. He is the Chair of the Institutional

Review Board of a medical center in New York. In the past, he

has held appointments with the University of Pennsylvania School

of Dental Medicine and Memorial Sloan-Kettering Cancer Center

and Hospital. Focusing on the qualifications of Dr. Behrman in

particular, as opposed to the qualifications of licensed

dentists in general, Dr. Behrman’s knowledge, skill, experience,

training, and education qualify him to opine as to the causation

of bronchopneumonia. Dr. Behrman has “acquired such skill that

he was better qualified than the jury to form an opinion” on the

causation of bronchopneumonia. Diggs, 177 N.C. App. at 297, 628
 -17-
S.E.2d at 856; see also Terry, 156 N.C. App. at 518, 577 S.E.2d

at 332.

We note that Defendants do not challenge the qualification

of Dr. Gaffney-Kraft to offer her expert opinion that

bronchopneumonia was the Decedent’s cause of death.

C. Relevance of the Expert’s Testimony

Defendants do not challenge the third step of the Goode

analysis, namely, the relevance of the expert’s testimony.

IV. Conclusion

The depositions, affidavits, and pleadings show that

Plaintiff, the nonmoving party, forecast evidence showing that

Defendants’ treatment proximately caused the Decedent’s death

and that there are genuine issues of material fact to be

determined by the jury. The evidence constitutes a sufficient

forecast of evidence for presentment of the case to the jury.

The trial court erred in granting Defendants’ motions for

summary judgment relating to dental care.

Reversed.

Judge McCULLOUGH concurs.

Judge DILLON dissents with separate opinion.
 NO. COA13-221

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

LESLIE WEBB, Administratrix of the
Estate of ROBERT B. WEBB, III,
Plaintiff-Appellant,

v. Forsyth County
No. 10-CVS-1990
WAKE FOREST UNIVERSITY BAPTIST
MEDICAL CENTER, UNIVERSITY DENTAL
ASSOCIATES, NORTH CAROLINA BAPTIST
HOSPITAL, WAKE FOREST UNIVERSITY,
WAKE FOREST UNIVERSITY PHYSICIANS,
SHILPA S. BUSS, DDS, and REENA
PATEL, DDS,
Defendants-Appellees.

DILLON, Judge, dissenting.

At the summary judgment hearing below, Plaintiff relied on

the opinions of two dentists – Dr. Thomas David and Dr. David

Behrman – as her forecast of evidence to establish that (1) the

provision of dental care by Defendants to Robert B. Webb, III,

(Decedent) violated the standard of care for dental

professionals; and that (2) this violation proximately caused

Decedent to develop bronchopneumonia.3 Because I do not believe

that the trial court abused its discretion under N.C. Gen. Stat.

3 Plaintiff relied upon the opinion of a medical doctor that
Decedent’s bronchopneumonia caused his death. However, this
medical doctor never expressed an opinion as to the cause of the
bronchopneumonia.
 -2-
§ 8C-1, Rule 702 by excluding from its consideration the

opinions of these dentists as to the cause of Decedent’s

bronchopneumonia, I respectfully dissent.

Here, Plaintiff bore the burden of producing a forecast of

evidence demonstrating “(1) the applicable standard of care; (2)

a breach of such standard of care by [Defendants]; (3) [that]

the injuries suffered by [Decedent] were proximately caused by

such breach; and (4) the damages resulting to [Decedent].”

Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466,

468 (1998). Our Supreme Court has held that “[w]here ‘a layman

can have no well-founded knowledge and can do no more than

indulge in mere speculation (as to the cause of a physical

condition), there is no proper foundation for a finding by the

trier without expert medical testimony.’” Gillikin v. Burbage,

263 N.C. 317, 325, 139 S.E.2d 753, 760 (1964) (citations

omitted).

The theory of Plaintiff’s case, here, is that Defendants

violated the standard of care applicable to licensed dentists,

that this violation proximately caused Decedent to contract

bronchopneumonia, and that Decedent’s bronchopneumonia was the

cause of his death. Defendants do not contend that Plaintiff’s

forecast of evidence regarding the applicable standard of care
 -3-
and the breach thereof was insufficient to survive summary

judgment. Indeed, Plaintiff’s two dental experts each stated

their opinions concerning the applicable standard of care for a

licensed dentist in performing Decedent’s dental procedure and,

moreover, that Defendants had violated that standard.4 Rather,

Defendants argue - and the trial court concluded - that these

same dentists did not qualify under Rule 702 to offer an expert

opinion that the violation of the dental standard of care in

this case was the proximate cause of Decedent’s

bronchopneumonia.

The parties do not dispute that Plaintiff’s burden was to

forecast evidence in the form of expert testimony to lay a

proper foundation from which a jury could determine the cause of

Decedent’s bronchopneumonia. The admissibility of expert

testimony on the issue of medical causation is governed by Rule

702(a) of our Rules of Evidence, the relevant version5 of which

provides that “[i]f scientific, technical or other specialized

4 Likewise, Defendants do not contend that Plaintiff’s forecast
of evidence regarding the causal connection between Decedent’s
bronchopneumonia and his death was not sufficient to survive
summary judgment, as this connection was established through the
opinion of a medical doctor.
5 Rule 702(a) was amended for actions commenced after October 1,

2011 to provide a stricter standard on the admissibility of
expert testimony. See State v. McGrady, __ N.C. App. __, __
S.E.2d __ (2014).
 -4-
knowledge will assist the trier of fact . . . to determine a

fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training or education, may testify thereto in

the form of an opinion[.]”

In the context of a medical malpractice action, Rule 702(a)

appears less restrictive as to the qualifications of a witness

to provide an expert opinion on medical causation than Rule

702(b) as to the qualifications of a witness to provide an

expert opinion on the appropriate standard of care. For

instance, while an expert testifying as to the standard of care

must generally be “a licensed health care provider,” this Court

has held, in a medical malpractice case, that a witness need not

be a licensed medical doctor in order to offer an expert opinion

as to medical causation, Diggs v. Novant Health, 177 N.C. App.

290, 628, S.E.2d 851 (2006), noting that our Supreme Court has

rejected the notion that only a medical doctor can be qualified

under Rule 702 to give an opinion regarding medical causation,

id. (citing State v. Tyler, 346 N.C. 187, 203-04, 485 S.E.2d

599, 608 (1997)). Accordingly, I believe we are bound to

conclude that Plaintiff’s two dentist experts are not

disqualified, as a matter of law, from offering opinions

regarding Decedent’s onset of bronchopneumonia.
 -5-
While it is true that the trial court is “afforded ‘wide

latitude of discretion when making a determination about the

admissibility of expert testimony[,]’” Howerton v. Arai Helmet,

Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citation

omitted), I discern no abuse of discretion in the trial court’s

decision to exclude the opinion testimonies of Drs. David and

Behrman concerning the cause of Decedent’s bronchopneumonia in

the present case. Although Dr. David opined that the standard

care violation was the proximate cause of Decedent’s

bronchopneumonia, he also testified that he was not an expert

qualified to offer an opinion as to the cause of Decedent’s

bronchopneumonia, specifically stating: “Again, I’m not an

expert in that regard, so my only opinion would be as a health

care practitioner and general knowledge in that realm, but I’m

not going to offer an expert opinion.”

Likewise, Dr. Behrman stated in response to a question from

Plaintiff’s counsel that it was his opinion that the standard of

care violation caused Decedent’s bronchopneumonia; however, he

qualified his response in stating that his opinion was “[w]ithin

[his] knowledge as an oral and maxillofacial surgeon” and that

he “would defer [his] opinions related to the development of

[Decedent’s] bronchopneumonia to a medical doctor.” Further Dr.
 -6-
Behrman acknowledged that Decedent was a medically complex

patient.

The majority cites the three-pronged analysis set out by

our Supreme Court in State v. Goode, 341 N.C. 513, 461 S.E.2d

631 (1995), which the trial court must use in determining the

preliminary issue of the admissibility of expert testimony. I

disagree with the majority’s conclusion with respect to the

first prong of the analysis, that the methodology employed by

Drs. David and Behrman in determining the cause of Decedent’s

bronchopneumonia was reliable. Plaintiff does not point to any

testimony where either dentist discussed the methodology by

which he determined the cause of Decedent’s bronchopneumonia.

Further, I disagree with the majority’s conclusion regarding the

second prong of the analysis, that Drs. David and Behrman were

qualified to offer expert opinions as to the cause of Decedent’s

bronchopneumonia. Plaintiff does not point to any testimony

indicating that either dentist possessed the requisite

“knowledge, skill, experience, training or education” to state

an opinion with any degree of certainty that it was Defendants’

conduct that caused Decedent’s bronchopneumonia. In other

words, I do not believe that a trial court abuses its discretion

as gatekeeper in excluding the opinion testimony of a witness
 -7-
concerning the cause of bronchopneumonia in a patient with a

complex medical history simply because the witness testified

that he has worked in the health care profession and has

extensive experience in dental surgery, but otherwise provided

no testimony indicating that he has any expertise in determining

the cause of bronchopneumonia. Accordingly, I would vote to

affirm the trial court’s decision to exclude this testimony.