dissenting.
This Court filed its original opinion in this case on 3 April 2001, along with my dissent. Because the substance of the majority decision has not changed on rehearing, my dissenting opinion remains the same.
In the case at bar, plaintiffs’ expert witness was prepared to testify at trial that the standard of care for prenatal treatment in Wilmington, North Carolina in 1990 was the same as the standard of care for prenatal treatment in any other location in the United States, and that he was familiar with this standard. He was further prepared to testify that defendants failed to employ certain fundamental medical procedures in their rendering of prenatal care. However, the trial court excluded this testimony at trial on the grounds that the expert had testified during his deposition that he did not know anything about Wilmington, North Carolina, the city in which defendants practice. Because his testimony was excluded in large part, the trial court granted defendants’ motion for a directed verdict. The issues on appeal are (1) whether the trial court erred in excluding the expert’s testimony at trial, and (2) whether such testimony, had it been admitted, would have satisfied the “same or similar” community standard pursuant to N.C.G.S. § 90-21.12 (1999). I believe the trial court erred in excluding the testimony, and that the testimony would have satisfied the statute.
In medical malpractice actions against individual health care providers, G.S. § 90-21.12 requires that testimony must be presented concerning the standard of care in “the same or similar communities.” See Thompson v. Lockert, 34 N.C. App. 1, 5, 237 S.E.2d 259, 261 (1977) (clarifying distinction between actions against individual *215“health care providers,” including “physicians and surgeons,” and actions against accredited hospitals). I believe this statutory requirement may be satisfied in at least three ways. It is clear that the statute is satisfied where an expert witness testifies that he is familiar with the standard of care in the community in question as a result of practicing in that community. It is also clear that the statute is satisfied where an expert witness testifies that he is familiar with the standard of care in the community in question as a result of practicing in a similar community. In addition, I believe the statute is satisfied where an expert witness testifies that he is familiar with the standard of care in the community in question as a result of the existence of, and his familiarity with, a standard of care for the treatment in question that is uniform across the country, and which does not vary depending upon the community.
This third approach to establishing the applicable standard of care in actions against individual health care providers may, at first blush, appear to be the equivalent of applying a national standard of care. And, as the majority aptly notes, it is clear that the legislature, in codifying the same or similar community approach in G.S. § 90-21.12, specifically intended not to adopt a national standard of care. However, I believe there is a crucial, albeit subtle, distinction between adopting a national standard of care as a matter of law, and allowing a party to present evidence of a national standard of care as a matter of fact. Without adopting a national standard of care as a matter of law, I believe G.S. § 90-21.12 permits the jury to consider factual evidence of the existence of a national standard of care in the process of determining the standard of care in the community in question.
This distinction was addressed in Baynor v. Cook, 125 N.C. App. 274, 480 S.E.2d 419 (1997), a medical malpractice action against individual doctors and their private partnerships. In Baynor, the plaintiff presented two expert witnesses who testified that there was a uniform standard of care across the country for the diagnosis and treatment of a thoracic aortic rupture (TAR), and that the defendant doctor, located in Beaufort County, had deviated from this standard of care. The defendants presented multiple expert witnesses who testified that they were familiar with the standard of care of an emergency room physician in Beaufort County, and that the defendant doctor had not deviated from this standard of care. Id. at 275-76, 480 S.E.2d at 420. At the close of the trial, the plaintiff requested the trial court to instruct the jurors that if they found a national standard of *216care existed for the diagnosis and treatment of TARs, they could hold the defendants to this national standard of care in determining whether the defendants had been negligent. Id. at 276, 480 S.E.2d at 420. The trial court denied this request and, instead, instructed the jury on the standard of care as mandated by G.S. § 90-21.12 and set forth in the Pattern Jury Instructions for North Carolina. Id. On appeal the plaintiff argued that the trial court committed reversible error in denying her request for an instruction on the national standard of care. We concluded that the trial court’s denial of the plaintiffs request was not error because North Carolina has not adopted a national standard of care as a matter of law. Id. However, we also noted that
the jury heard testimony that the community standard in Beaufort County for the treatment of TARs is the same across the country. The trial court properly allowed plaintiff’s experts to testify that based on their familiarity with the national standard of care as related to a common medical issue (TARs), this standard of care did not vary depending on the community.
Id. at 278, 480 S.E.2d at 421 (emphasis added).
These comments clarify that a plaintiff may satisfy G.S. § 90-21.12 by offering the testimony of an expert who asserts that (1) the standard of care for the treatment in question is uniform across the country and does not vary depending upon the community, and (2) he is familiar with this national standard. Such evidence is clearly some evidence of the standard of care in the community in question. When this type of evidence is offered by a plaintiff, I believe it should be presented to the jury for consideration, as it was in Baynor, and not excluded by the trial court. This comports with the language of the statute itself, which provides that a defendant in an action for medical malpractice shall not be liable “unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with” the applicable standard of care. G.S. § 90-21.12 (emphasis added). The statute expressly contemplates a determination by the jury, rather than the trial court, as to whether the greater weight of the evidence presented by the parties establishes a breach of the applicable standard of care.
Furthermore, admitting such evidence for consideration by the jury is not the same as adopting a national standard of care as a matter of law. If our State had adopted a national standard of care as a *217matter of law, the standard of care actually practiced in a defendant’s community would be irrelevant to the legal analysis, even if that standard of care were lower than the national standard of care. Thus, a local doctor could be found negligent even where his treatment conformed to the standard of care practiced among the doctors in his community. On the other hand, the same or similar community approach, which we have adopted in North Carolina, recognizes that there are often differences in the standards of care practiced in different communities. Under the same or similar community approach, these differences are relevant and central to the legal analysis because the jury must ultimately determine the applicable standard of care in each particular case. However, in making this determination, there is no reason why a jury should not be allowed to consider factual evidence of a national standard of care for the medical procedure in question.
Here, the named defendants are two individual doctors and their private partnership association. At trial, plaintiffs offered the expert medical testimony of Dr. Sunseet P. Chauhan. Dr. Chauhan had been deposed by defendants prior to trial. At the deposition, Dr. Chauhan testified that the only information he had about the medical community in which defendants practiced was the fact that it is located in the United States of America. He also testified that he had not undertaken a comparison of this community with any other community with which he was familiar. However, Dr. Chauhan testified that the standard of care in Wilmington, North Carolina in 1990 for the type of prenatal care at issue was the same as that in any other location in the United States, and that this standard did not vary depending upon the community.
Prior to trial, the court denied a motion by defendants to exclude the testimony of Dr. Chauhan based on his lack of familiarity with the local community in question. At trial, counsel for defendants noted that plaintiffs had not supplemented Dr. Chauhan’s deposition testimony following the deposition, and therefore, pursuant to N.C.R. Civ. P. 26, requested that the trial court limit Dr. Chauhan’s testimony to information contained in his deposition. The trial court indicated that it would rule on any objections to Dr. Chauhan’s testimony as they were made during the trial.
Dr. Chauhan took the stand and testified before the jury that he is board certified in the areas of obstetrics, gynecology, and maternal-fetal medicine, with a speciality in high-risk pregnancy. He testified *218that he practices in Spartanburg, South Carolina, and teaches medical residents from the Medical University of South Carolina located in Charleston. Dr. Chauhan was admitted as an expert witness. The following questioning transpired during the direct examination of Dr. Chauhan:
Q. [A]re you familiar with the standard of care for board certified obstetricians/gynecologists practicing in Wilmington, North Carolina, or similar communities, in December of 1990?
A. Yes, sir.
Mr. Walker: Objection, deposition.
The Court: Okay. I’m going to sustain the objection.
Q. All right. In terms of 1990, do you have an opinion ... as to whether or not the standards of practice for board certified physicians in Wilmington, or similar communities, in 1990 would have been the same in not only Wilmington but throughout North Carolina?
Mr. Walker: Objection. Deposition, if Your Honor please.
The Witness: Yes, sir.
The Court: Sustained.
Q. Doctor, do you have an opinion ... as to whether or not the standards of practice for board certified OB/GYN physicians practicing in Wilmington, North Carolina . . . would be the same as that of a board certified physician practicing at Duke or Chapel Hill, or anywhere in North Carolina in 1990?
Mr. Walker: Objection, if Your Honor please.
The Witness: Yes.
Mr. Walker: Not only 26 but the deposition itself.
The Court: Overruled.
Q. Do you have such an opinion?
A. Yes, I do.
*219Q. What is that opinion?
Mr. Walker: Objection.
The Court: I’m going to sustain that.
Q. Doctor, would those standards be the same as the standards of board certified physicians practicing in Spartanburg or in Georgia in 1990?
Mr. Walker: Objection.
The Court: Overruled.
The Witness: Yes, it would be... .
Q. Doctor, state whether or not the standards of practice for the board certified obstetricians/gynecologists in [Portsmouth Naval Hospital] would have been the same at Camp Lejeune in 1990, to the best of your knowledge?
Mr. Walker: Objection.
The Court: Overruled.
The Witness: Yes, they would be.
Q. Based on your knowledge of those standards, would those standards, in your opinion, be applicable to Wilmington, North Carolina, in 1990?
Mr. Walker: Objection.
The Court: Sustained. He’s already testified he doesn’t know a thing about Wilmington.
The jury was then excused from the courtroom, and the trial court judge explained his perspective to the parties:
[H]ow can you compare an apple if the only thing you’ve looked at is oranges? I mean, from what I read in this deposition, this gentleman has never been to Wilmington, he’d never talked with anybody from Wilmington at the time of his deposition, that he didn’t know anything about Wilmington at the time of the deposition, and then, subsequent to that, there’s been no supplementation of his answers from the deposition as were requested or required. That’s where I see the problem.
*220In the absence of the jury, Dr. Chauhan was called back to the stand for voir dire questioning, at which time the following testimony transpired:
Q. Dr. Chauhan, how can you say you’re familiar with the standards of care in Wilmington or similar communities if you have not done a comparison with any communities that you’re familiar with versus Wilmington?
A. The reason is, because the thing I found what was lacking in the care, or below the standard of care, is so fundamental it’s applicable everywhere. . . . These are simple guidelines which everyone should follow across the country.
The trial court took the position that because Dr. Chauhan had testified during his deposition that he knew nothing about Wilmington, and because plaintiffs had not supplemented this testimony following the deposition, Dr. Chauhan could not testify as to his familiarity with the standard of care for board certified obstetricians and gynecologists practicing in Wilmington in 1990. I believe the exclusion of this testimony by the trial court was based upon a misunderstanding of the law, and constitutes reversible error. The applicable standard of care may be established by any of the three methods discussed above, and Dr. Chauhan was prepared to establish the applicable standard of care by testifying as to his familiarity with a national standard of care for prenatal treatment that does not vary depending on the community. An expert witness need not be familiar with the particular community in question. He need only be familiar with the applicable standard of care in that community. See Warren v. Canal Industries, 61 N.C. App. 211, 215-16, 300 S.E.2d 557, 560 (1983) (holding, in action against a private clinic and an individual doctor, that it is not necessary for the witness testifying as to the standard of care to have actually practiced in the same community as the defendant as long as the witness is familiar with the applicable standard of care). This principle was recently applied in Marley v. Graper, 135 N.C. App. 423, 521 S.E.2d 129 (1999), cert. denied, 351 N.C. 358, - S.E.2d - (2000). Marley involved a medical malpractice action against individual doctors. Therefore, although the concurring opinion is correct in noting that the cases cited in Marley for this proposition may have involved accredited hospitals, the holding in Marley itself is clear precedent for the application of this principle to actions against individual doctors. I do not believe that Marley can *221be distinguished simply on the grounds that it involved the testimony of a defendant’s expert, rather than a plaintiffs expert. There is no logical reason to treat the testimony of a defendant’s expert witness differently than the testimony of a plaintiff’s expert witness in terms of the type of evidence required by G.S. § 90-21.12 for establishing the applicable standard of care.
As the majority opinion points out, where an expert testifies regarding a uniform standard of care across the country, it is vital that he also specifically testify that he is familiar with the standard of care in the community in question or similar communities based on his assertion that the uniform standard is, in fact, the standard practiced in the community in question. See Tucker v. Meis, 127 N.C. App. 197, 487 S.E.2d 827 (1997) (holding that this requirement applies to cases in which an expert bases his opinion upon either a purported state-wide standard of care or a purported national standard of care); Howard v. Piver, 53 N.C. App. 46, 52, 279 S.E.2d 876, 880 (1981). In Tucker, we described this necessary element as “the statutorily required connection” between a purported uniform or state-wide standard of care and the same or similar community rule mandated by G.S. § 90-21.12. Id. at 198-99, 487 S.E.2d at 829. However, I disagree with the assertion that Dr. Chauhan “failed to testify in any instance that he was familiar with the standard of care in Wilmington or similar communities.” Dr. Chauhan testified during his deposition that he was familiar with the applicable standard of care in Wilmington in 1990. His testimony was based on his assertion that the standard of care for prenatal treatment in Wilmington, North Carolina in 1990 was the same as that in any other location in the United States, and that he was familiar with this uniform standard. This is precisely the “statutorily required connection” discussed in Tucker. In my view, the only reason this testimony was not admitted at trial is because the trial court incorrectly ruled that Dr. Chauhan’s deposition testimony precluded him from testifying at trial as to his familiarity with the standard of care for prenatal treatment in Wilmington in 1990.
Because plaintiffs could not establish the applicable standard of care without the excluded testimony of Dr. Chauhan, the trial court granted defendants’ motion for directed verdict at the close of plaintiffs’ evidence. I believe this constitutes reversible error as well. Had Dr. Chauhan’s testimony been admitted at trial, as I believe it should have been, defendants would not have had grounds for a directed verdict in their favor. In considering a motion for directed verdict, the question presented is whether the evidence, viewed in the light most *222favorable to the non-movant, is sufficient to submit the case to the jury. Clark v. Perry, 114 N.C. App. 297, 304, 442 S.E.2d 57, 61 (1994). Where an expert testifies that the standard of care for a particular type of treatment is uniform across the country and does not vary depending on the community, and further testifies that he is familiar with this uniform standard of care, such testimony is admissible and should be considered by the jury. See Baynor, 125 N.C. App. at 278, 480 S.E.2d at 421. This is especially the case where the nature of the treatment in question is relatively simple. See Wiggins v. Piver, 276 N.C. 134, 138, 171 S.E.2d 393, 395-96 (1970); Howard, 53 N.C. App. at 51-52, 279 S.E.2d at 880. In the instant case, Dr. Chauhan’s testimony indicated that the alleged negligence by defendants included the failure to undertake certain medical procedures that are considered basic and fundamental in the area of prenatal treatment.
For the reasons stated herein I respectfully dissent. I would reverse the trial court’s order granting defendants’ motion for a directed verdict. I would remand for a new trial, and hold that Dr. Chauhan’s testimony as to his familiarity with the standard of care for prenatal treatment in Wilmington in 1990 is admissible at trial.