Not Sharing Exact Specialty Not Grounds for Expert Exclusion: North Carolina Ct.

A medical malpractice expert witness need not be in the exact specialty and exact practice setting to be qualified to testify, the North Carolina Court of Appeals has ruled.

In Da Silva v. WakeMed, N.C. Ct. App., 2018, the trial court had granted summary judgment to Wakemed Cary Hospital and its hospitalists after ruling that the plaintiff's expert witness, Dr. Paul Genecin, board certified in internal medicine and serving as an attending physician at Yale Health for two months each year, did not qualify because the defendant physicians were hospitalists, and he was not.

Raymond Da Silva, executor of the Estate of Dolores J. Pierce, appealed, arguing that Dr. Genecin was in the same medical specialty as Pierce's physicians during her hospitalization. Also, as a clinical associate professor in the department of internal medicine at Yale, Dr. Genecin taught hospitalists.

Da Silva had filed suit against WakeMed for alleged medical malpractice, negligence and the wrongful death of Pierce. A 76-year old taking Prednisone daily, Pierce was admitted to WakeMed on October 30, 2012 with suspected infection and sepsis. The emergency room physician ordered Pierce be given the intravenous antibiotic Levaquin, and she was transferred to intermediate care.

Later the same day, one of the hospitalists, Dr. Grant Jenkins, diagnosed Pierce as having a urinary tract infection, ordered Pierce to be given 750mg of Levaquin and 5mg Prednisone daily. The next day, Dr. Faisal Daud, another hospitalist, continued the Levquin and Prednisone. On November 4th, yet another hospitalist, Dr. Saifullah Afridi, increased Pierce's Prednisone to 30mg and added an order for an IV of Methylprednisolonne, another corticosteroid. When Pierce was discharged November 5th to a rehabilitation center, Dr. Alfridi prepared discharge orders for Pierce to continue receiving Levaquin and 60mg Prednisone daily.

At the rehabilitation center, Pierce was found to have a ruptured Achilles tendon, which surgery did not resolve, leaving Pierce “essentially bedridden” until her death on September 7th, 2013.

Da Silva's hospitalist expert witness, Dr. Genecin, testified that, as mandated by the FDA, Levaqin includes the highest level of warning, a “black box warning”, that the medication is associated with an increased risk of tendon rupture, with an increased risk for those over 60, and in patients taking cortiscosteroid drugs (like Prednisone). WakeMed's medication delivery software even contained a “pop up” warning of the increased risk of rupture of the Achilles tendon. Dr. Genecin also testified that a variety of other antibiotics were available to treat Pierce that did not have such risks.

WakeMed then filed a motion to disqualify Dr. Genecin, arguing that he spent the majority of his time as a clinical practitioner and the defendants were in a separate, distinct specialty because they practiced only in a hospital setting. The trial court agreed, granting summary judgment.

The state Court of Appeals disagreed. The “recognition of a hospitalists as a specialist does not disqualify Plaintiff's expert from being a similar specialist.” The Court referenced past precedent finding that “the physician expert and physician defendant need not work in exactly the same practice setting.”

The Court reversed the trial court's order disqualifying Dr. Genecit, vacated the orders granting summary judgment and remanded.