Da Silva v. WakeMed, et. al.

A woman who suffered injuries that resulted from the negligent prescription of Levaquin. The trial court excluded Plaintiff’s sole expert, Dr. Paul Genecin, an internal medicine physician, after finding that Dr. Genecin did not qualify under N.C. Rule E. 702(b) because he was not of the “same specialty” as the hospitalist defendants and, although he was of a “similar specialty,” he did not spend the majority of his professional time in the clinical practice of hospital medicine.  The trial court also held that Dr. Genecin’s testimony on proximate cause was legally insufficient.  As a result of the trial court’s findings, summary judgment was rendered for defendant.

The Court of Appeals reversed, finding that although Dr. Genecin was not of the “same specialty,” he was of a “similar specialty” to the physician defendants, had experience treating similar patients and was familiar with the applicable standards of practice.  The court of appeals also held that Dr. Genecin’s testimony on proximate cause was sufficient to withstand summary judgment. The NC Supreme Court allowed the defendant’s petition for discretionary review.  The amici brief filed by NCAJ argued that the intent of Rule 702(b) was only to exclude professional expert witnesses and physician-experts unfamiliar with the applicable standards of practice. NCAJ argued that physicians should not be permitted to self-proclaim a specialty that is not recognized by the ABMS and its member boards.  NCAJ also argued that the plain language of Rule 702(b) does not require an expert of a similar specialty to have spent the majority of her professional time performing the procedure at issue in the lawsuit or caring for similar patients; rather, NCAJ argued that Rule 702(b) only requires an expert physician to “have experience” treating similar patients.  NCAJ finally argued that Dr. Genecin provided legally sufficient testimony on proximate cause to withstand summary judgment.