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North Carolina Adheres to a Harsh Rule Which Excludes Experts in Medical Negligence Cases

November 17th, 2008

North Carolina adheres to a harsh rule which excludes experts in medical negligence cases from testifying to breaches of the standard of care unless they can show familiarity with the standard of care in the community where the alleged malpractice occurred or a similar community.  This rule of exclusion has resulted in numerous dismissals of valid claims based on the ‘same or similar community’ standard codified in N.C. Gen. Stat. 90-21.12, and a hodgepodge of inconsistent and confusing appellate opinions.  The rule stands in contrast to the reality on the ground:  the standard of care in practice is national in most instances.  Often ,the exclusions of plaintiff’s experts are based on their testimony at defense depositions, long before trial.  In the latest in the series of appellate opinions regarding the same or similar community rule, the N.C. Court of Appeals, in an unpublished opinion, reversed a trial court’s exclusion of one of two of the plaintiff’s orthopedic experts and resulting dismissal of the plaintiff’s lawsuit.  The opinion provides a ray of hope for plaintiffs: The court considered, in reversing the exclusion of one expert, an affidavit signed by the expert showing that, after his expert deposition, he did additional research and further familiarized himself with the standard of care in the same and similar communities.
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