              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-106

                                   Filed: 5 July 2017

Wayne County, No. 13 CVS 1023

TRACIE JOHNSON, ADMINISTRATOR OF THE ESTATE OF MARIO JOHNSON,
Deceased, Plaintiff,

             v.

WAYNE MEMORIAL HOSPITAL, INC., TERRY A. GRANT, M.D., IMMEDIATE
CARE OF GOLDSBORO, PLLC, GOLDSBORO EMERGENCY MEDICAL
SPECIALISTS, INC., DENNIS A. ISENHOWER, P.A., LLOYD SMITH, M.D.,
PHILIP D. MAYO, M.D., and EASTERN MEDICAL ASSOCIATES, P.A., Defendants.


      Appeal by plaintiff from order entered 19 February 2016 by Judge Beecher R.

Gray in Wayne County Superior Court. Heard in the Court of Appeals 8 June 2017.


      The Melvin Law Firm, P.A., by R. Bailey Melvin, for plaintiff-appellant.

      McGuireWoods LLP, by Patrick M. Meacham and Kayla Marshall, for
      defendant-appellee Wayne Memorial Hospital, Inc.


      ZACHARY, Judge.


      Tracie Johnson, Administrator of the Estate of Mario Johnson (plaintiff),

appeals from an order granting directed verdict in favor of Wayne Memorial Hospital,

Inc. (defendant, hereafter “the hospital”) on plaintiff’s claim of medical negligence.

Plaintiff alleged that the hospital’s process for review of X-ray over-read discrepancies

did not meet the standard of care for hospitals in the same or similar communities.

On appeal, plaintiff contends that the court erred by ruling that plaintiff failed to

present competent evidence of the relevant standard of care and by ruling that the
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hospital was insulated from liability arising from its allegedly negligent policy for

review of X-ray over-read discrepancies by the subsequent intervening negligence of

the physicians who treated Mario Johnson (Mr. Johnson) prior to his death. After

careful review of plaintiff’s arguments in light of the record on appeal and the

applicable law, we conclude that the trial court did not err by granting directed

verdict for the hospital based on plaintiff’s failure to offer competent testimony as to

the standard of care or the hospital’s breach of that standard. Having affirmed the

court’s order on this basis, we find it unnecessary to reach plaintiff’s other argument.

                             I. Factual and Procedural History

      At around 3:00 a.m. on 11 February 2011, Mr. Johnson came to the emergency

department of the hospital seeking treatment for pain. Mr. Johnson suffered from

sickle cell anemia, an inherited blood disorder that affects red blood cells. At the

emergency room, Mr. Johnson was treated by Dr. Terry Grant, M.D., who

administered pain medication and a saline solution, and ordered various tests for Mr.

Johnson, including blood tests, an EKG, a test for influenza, and a chest X-ray. The

results of these tests showed that Mr. Johnson’s temperature, respiration, blood

pressure, and blood oxygen level were normal. The blood test results indicated that

Mr. Johnson’s white blood cell count was elevated, which can be caused by a variety

of medical conditions; however, other blood tests indicated that Mr. Johnson’s red

blood cells were normal and that he was not showing signs of inflammation. Dr.



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Grant’s interpretation of the X-ray of Mr. Johnson’s chest was that the results were

normal. Dr. Grant concluded that because Mr. Johnson “did not appear overtly ill”

and that because his “vital signs were normal” he did not need to be admitted to the

hospital. Mr. Johnson was discharged from the hospital at around 5:00 a.m., with

instructions to return if his condition worsened. Mr. Johnson returned to the hospital

on 12 February 2011, at which time health care providers in the emergency room

determined that he was suffering from “acute chest syndrome,” a life-threatening

complication of sickle cell anemia. Mr. Johnson was admitted to the intensive care

department of the hospital. Despite further treatment, Mr. Johnson died during the

early morning hours of 13 February 2011.

       On 11 February 2013, plaintiff filed suit against Wayne Memorial Hospital,

Inc.; Dr. Terry Grant; Dr. Paul Willman; Dennis Isenhower, P.A.; Dr. Lloyd Smith;

Dr. Philip Mayo; Immediate Care of Goldsboro, PLLC; Goldsboro Emergency Medical

Specialists, Inc.; Wayne Radiologists, P.A.; and Eastern Medical Associates, P.A. Dr.

Smith, Dr. Mayo, Dr. Willman, and Physician’s Assistant Isenhower1 were health

care providers who treated Mr. Johnson on 12 and 13 February 2011. Plaintiff’s

complaint alleged that (1) all of the individual defendants were agents or employees

of the hospital; (2) Dr. Grant was an agent, employee, or owner of Immediate Care of

Goldsboro, PLLC, and of Goldsboro Emergency Medical Specialists, Inc.; (3) Dr.


       1 1 The term “PA” refers to a physician’s assistant. A PA, although not licensed to practice
medicine, has extensive training in providing health care to patients.

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Willman was an agent, employee, or owner of Wayne Radiologists, P.A.; (4) PA

Isenhower and Dr. Smith were agents or employees of Immediate Care of Goldsboro,

PLLC, and of Goldsboro Emergency Medical Specialists, Inc.; and (5) Dr. Mayo was

an agent, employee, or owner of Eastern Medical Associates, P.A. Plaintiff sought

damages for medical malpractice, based upon the alleged negligence of the individual

defendants as well as the derivative liability of the hospital and the medical practices

with which plaintiff alleged that the individual defendants were associated. With

respect to the individual defendants, plaintiff alleged that each had failed to provide

appropriate care to Mr. Johnson or to meet the relevant standard of care and that the

individual’s negligence was a proximate cause of Mr. Johnson’s death. Plaintiff

sought damages against the hospital based upon allegations of medical malpractice

arising from negligent treatment of Mr. Johnson, together with allegations that the

hospital was negligent in that its policy for review of discrepancies between an

emergency room physician’s interpretation of an X-ray and that of a radiologist did

not meet the relevant standard of care. The plaintiff later dismissed all claims

against defendants Immediate Care of Goldsboro, PLLC, Dr. Willman, and Wayne

Radiologists, P.A.

      Plaintiff’s claims against the remaining defendants were tried before the trial

court and a jury beginning on 25 January 2016. The evidence offered at trial is

discussed below, as relevant to the issues raised on appeal. At the close of plaintiff’s



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evidence, the trial court granted directed verdict in favor of the hospital on plaintiff’s

allegations that the individual defendants were actual or apparent agents of the

hospital, and on plaintiff’s claims of clinical malpractice of the hospital arising from

the individual health care providers’ treatment of Mr. Johnson. The trial court did

not dismiss plaintiff’s negligence claim against the hospital based on the hospital’s

process for review of X-ray over-read discrepancies. At the close of all the evidence,

however, the trial court granted directed verdict in favor of the hospital on this claim

as well. As a result, the only claims submitted to the jury were the allegations of

negligence on the part of the individual defendants.

      The jury returned verdicts finding that the individual defendants were not

negligent. The trial court signed an order on 8 February 2016, which was filed on 8

March 2016, dismissing all of plaintiff’s claims with prejudice. On 18 February 2016,

plaintiff filed a motion asking the trial court to reconsider its entry of directed verdict

in favor of the hospital on plaintiff’s claim that the hospital’s process for review of X-

ray over-read discrepancies did not meet the standard of care. The trial court denied

plaintiff’s motion on 8 March 2016. On the same day, plaintiff noted an appeal to this

Court “from the [trial court’s] Order for a Directed Verdict for [the hospital], entered

on February 10, 2016[.]” The directed verdict to which plaintiff’s notice of appeal

refers is the order directing a verdict in favor of the hospital on plaintiff’s claim

arising from the hospital’s policy for review of X-ray over-read discrepancies. Plaintiff



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has not appealed from the trial court’s order granting directed verdict for the hospital

on plaintiff’s claim for liability based on agency, from the verdicts finding the

individual defendants not negligent, or from the judgment entered by the trial court

after the trial. Therefore, the only issue before us on appeal is plaintiff’s challenge to

the order that effectively dismissed the claim that the hospital was negligent in its

X-ray over-read discrepancy review policy.

                                    II. Standard of Review

      Plaintiff has appealed from an order granting directed verdict for the hospital.

“The standard of review of directed verdict is whether the evidence, taken in the light

most favorable to the non-moving party, is sufficient as a matter of law to be

submitted to the jury.” Green v. Freeman, 367 N.C. 136, 140, 749 S.E.2d 262, 267

(2013) (internal quotation omitted).

             When considering a motion for a directed verdict, a trial
             court must view the evidence in the light most favorable to
             the non-moving party, giving that party the benefit of every
             reasonable inference arising from the evidence. Any
             conflicts and inconsistencies in the evidence must be
             resolved in favor of the non-moving party. If there is more
             than a scintilla of evidence supporting each element of the
             non-moving party’s claim, the motion for a directed verdict
             should be denied. . . . Because the trial court’s ruling on a
             motion for a directed verdict addressing the sufficiency of
             the evidence presents a question of law, it is reviewed de
             novo.

Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 322-23, 595 S.E.2d 759, 761

(2004) (citations omitted). “A motion for directed verdict ‘tests the legal sufficiency of


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the evidence to take the case to the jury and support a verdict’ for the nonmovant.”

Scarborough v. Dillard’s, Inc., 363 N.C. 715, 720, 693 S.E.2d 640, 643 (2009) (quoting

Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977)).

       On appeal, plaintiff challenges certain findings of fact made by the trial court

in its directed verdict order. “However, this Court, in reviewing trial court rulings on

motions for directed verdict and judgment notwithstanding the verdict, has held that

the trial court should not make findings of fact, and if the trial court finds facts, they

are not binding on the appellate court. . . . [T]hese findings are not binding on the

appellate court even if unchallenged by the appellant.” Scarborough, 363 N.C. at 722-

23, 693 S.E.2d at 644 (citation omitted). As a result, our review of the propriety of

the trial court’s directed verdict order is not dependent upon the evidentiary support

for or the legal relevance of the court’s findings of fact.

                    III. Medical Malpractice Claim Against the Hospital

                                       A. Legal Principles

       In reviewing a trial court’s ruling on a motion for directed verdict, “our de novo

inquiry is whether the evidence, taken in a light most favorable to plaintiff, provides

more than a scintilla of evidence to support each element of plaintiff’s claim. If that

burden is satisfied, the motion for directed verdict should be denied[.]” Heller v.

Somdahl, 206 N.C. App. 313, 314, 696 S.E.2d 857, 860 (2010) (citation omitted).




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        “Evidence of medical negligence or malpractice adequate to withstand a motion

for directed verdict must establish each of the following elements: ‘(1) the standard of

care [duty owed]; (2) breach of the standard of care; (3) proximate causation; and (4)

damages.’ Failure to make a prima facie evidentiary showing in support of even one

element is fatal.” Clark v. Perry, 114 N.C. App. 297, 304-05, 442 S.E.2d 57, 61 (1994)

(quoting Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570 (1981) (other

citation omitted).

        “One of the essential elements of a claim for medical negligence is that the

defendant breached the applicable standard of medical care owed to the plaintiff.”

Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 751 (1999). “Plaintiffs must

establish the relevant standard of care through expert testimony.” Crocker v.

Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628 (2009) (citations omitted). “To meet

their burden of proving the applicable standard of care, plaintiffs must satisfy the

requirements of N.C.G.S. § 90-21.12[.]” Id. At the time that plaintiff’s claim arose, 2

N.C. Gen. Stat. § 90-21.12(a) provided that:

                In any action for damages for personal injury or death
                arising out of the furnishing or the failure to furnish
                professional services in the performance of medical . . .
                care, the defendant shall not be liable for the payment of
                damages 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 standards of

        2 N.C. Gen. Stat. § 90-21.2 was amended effective 1 October 2011, and “apply[ing] to causes of
action arising on or after that date.” Because plaintiff’s claim arose in February, 2011, it is governed
by the earlier version of N.C. Gen. Stat. § 90-21.2.

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              practice among members of the same health care
              profession with similar training and experience situated in
              the same or similar communities at the time of the alleged
              act giving rise to the cause of action.

                                         B. Discussion

        Plaintiff alleges that the hospital was negligent in its process for review by a

radiologist of X-rays that were originally interpreted by an emergency room physician

and subsequent communication of any discrepancy in the radiologist’s interpretation

to emergency room personnel. The dispositive issue is whether plaintiff produced

evidence that the hospital’s policy or practice “was not in accordance with the

standards of practice among members of the same health care profession with similar

training and experience situated in the same or similar communities at the time of

the alleged act giving rise to the cause of action[.]” N.C. Gen. Stat. § 90-21.12(a)

(2011).   We conclude that plaintiff failed to offer any evidence of either (1) the

standard of care to which a hospital in the same or similar community should adhere

in its process for the review of X-rays, or (2) the hospital’s breach of the standard of

care.

        The hospital policy at issue becomes relevant in the following circumstances.

When a patient, such as Mr. Johnson, is treated in the hospital’s emergency room,

the physician who is treating the patient may order an X-ray. The emergency room

physician reviews, or “reads,” the X-ray as part of the physician’s determination of

the appropriate treatment for the patient. The X-ray is later provided to a radiologist,


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who is a physician specializing in the interpretation and analysis of X-rays and other

scans. The radiologist’s review of the X-ray that was originally interpreted by the

emergency room physician is referred to as an “over-read.” If the radiologist’s

interpretation of the X-ray differs from that of the emergency room physician, this

difference is termed a “discrepancy.” Plaintiff alleges that the hospital’s process for

informing emergency room personnel about a discrepancy observed by the radiologist

in the over-read did not meet the applicable standard of care.

      The general structure of the hospital’s policy at the time of Mr. Johnson’s

treatment at the hospital in regard to communication about discrepancies detected

in a radiologist’s over-read is set out in the hospital’s Policy Number ED-019, which

states, in relevant part, that:

             Purpose: To provide a system for follow up of diagnostic
             tests. . . . To provide guidelines for contacting patients
             when additional or alternative treatment is necessary
             following an Emergency Department visit.

                                          ...

             Policy:
             A. Follow up of diagnostic tests will be done in the
             Emergency Department under the direction of a physician.
             B. The Emergency Department Supervisor will review all .
             . . radiologist interpretations[.] . . . Discrepancies will be
             reported to the Emergency Department physician/PA.

                                          ...

             E. The Emergency Department physician/PA will review
             the corresponding patient’s record to decide whether the


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             variance is clinically significant and requires contacting
             the patient, or whether a variance exists, but [is] not
             clinically relevant to the Emergency Department visit and
             requires no further treatment.

             Radiology:
             1. X-rays ordered by an Emergency Department physician
             or PA are initially interpreted by the Emergency
             Department physician with final interpretation by a
             radiologist.

                                           ...

             4. The ED supervisor compares the Emergency
             Department physician’s preliminary findings . . . with the
             final radiologist interpretation. If a discrepancy exists, the
             “Emergency Department Radiology Follow-up Form” will
             be completed.

      Plaintiff’s negligence claim against the hospital is not based upon a challenge

to the general parameters of the hospital’s policy for review of discrepancies. Nor

does plaintiff allege that the hospital failed to implement its policy in this case.

Plaintiff instead contends that that the hospital’s negligence “is not based upon the

policy itself but on the timeframe established by the hospital to carry out the policy.”

Thus, plaintiff does not allege that the hospital was negligent for utilizing a sequence

of successive reviews by the emergency room physician, the radiologist, a nurse, and

then emergency room personnel. Plaintiff’s claim is narrowly focused upon the fact

that, unless the radiologist determined that the emergency room should be contacted

immediately, it typically took about 24 hours after an emergency room physician’s




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initial read of an X-ray before the emergency room staff would be informed of the

radiologist’s differing interpretation.

      The schedule or timeline of the hospital’s process for review of X-ray over-read

discrepancies was established through the testimony of Nurse Laura Bruce, the

Clinical Director of the hospital’s emergency department, and Dr. Paul Willman, the

radiologist who reviewed Mr. Johnson’s X-ray. Dr. Willman testified that the

radiologist would contact the emergency department directly if, in the opinion of the

radiologist, the X-ray revealed a life-threatening situation or a medical condition for

which a patient required immediate attention. Nurse Bruce described the hospital’s

process for the further review of X-rays that had been read by an emergency room

physician and subsequently reviewed by a radiologist in situations in which the

radiologist did not find it necessary to contact the emergency room immediately.

Each morning the nurse supervisor reviewed the X-rays that were taken between

midnight the day before until midnight of that day. If there was a discrepancy

between the X-ray interpretation of the emergency department physician and that of

the radiologist, the nurse supervisor would complete a form detailing the situation.

The form would then be reviewed by an emergency room PA or physician, who would

determine what, if anything, should be done in response to the discrepancy. Thus, if

the radiologist did not perceive the need for immediate intervention, it would

typically be at least 24 hours between the emergency room physician’s initial reading



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of an X-ray and the opportunity for a physician to compare that review with the

results of the radiologist’s reading of the X-ray.

      In this case, X-rays were taken between 3:00 and 5:00 a.m. on 11 February

2011, and Mr. Johnson was discharged from the emergency room at around 5:30 a.m.

At approximately 8:00 a.m. that morning, Mr. Johnson’s X-ray was reviewed by Dr.

Paul Willman, a radiologist who practiced at the hospital and testified at trial as an

expert in radiology. In February 2011, Dr. Willman’s duties included a review each

morning of the X-rays taken during the previous night. On 11 February 2011, Dr.

Willman reviewed the X-ray of Mr. Johnson’s chest and lungs and observed a “very

subtle” abnormality, which he characterized as a “left lobe infiltrate.” Because Dr.

Willman did not consider this finding to be “dangerous, ominous, or concerning,” he

did not report it directly to the emergency department. The discrepancy was provided

to the nurse supervisor about 14 hours later, just after midnight on 12 February 2011.

She shared the results with the emergency room PA when he arrived for work on the

morning of 12 February 2011. However, Mr. Johnson had already returned to the

emergency room during the morning of 12 February 2011, “before it got to [the] stage

of the process” in which a PA would conduct further review.

      Plaintiff contends that the hospital’s process for communication of

discrepancies in review of X-rays failed to meet the proper standard of care in regard

to the “timeframe” within which such discrepancies should be brought to the



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attention of an emergency room physician. Specifically, plaintiff alleges that the

hospital breached the standard of care because, unless the radiologist found a

discrepancy that appeared to require urgent treatment, it could be 24 hours between

the time that an emergency room physician reviewed an X-ray and the time that

emergency room personnel received a copy of the radiologist’s description of the over-

read showing a discrepancy.

      In order to meet the standard for recovery enunciated in N.C. Gen. Stat. § 90-

21.12, plaintiff was required to establish that the hospital’s policy did not meet “the

standards of practice among [other hospitals] . . . situated in the same or similar

communities at the time of the alleged act giving rise to the cause of action.”

Accordingly, to establish the standard of care, plaintiff was required to produce

evidence showing whether the hospital met the standard of care for similar hospitals

in regard to the timely communication of information about over-read discrepancies

between the radiologist and the emergency room personnel. This Court held in Tripp

v. Pate, 49 N.C. App. 329, 333, 271 S.E.2d 407, 409-10 (1980), a case bearing some

factual similarity to the present case, that the failure to produce such evidence

supported entry of directed verdict in favor of the hospital:

             First, plaintiff argues she presented evidence the hospital
             was negligent in not reporting promptly the results of
             certain tests ordered by plaintiff’s doctors after her
             surgery, thereby causing a delay in the diagnosis of
             plaintiff’s condition. In order to withstand a motion for
             directed verdict on this issue, however, plaintiff was


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             required by N.C. Gen. Stat. § 90-21.12, supra, to offer some
             evidence that the care of the defendant hospital was not in
             accordance with the standards of practice among other
             hospitals in the same or similar communities. Plaintiff
             failed to present any evidence of the standard of care for a
             hospital in Kinston or similar communities regarding time
             necessary to report test results. (Emphasis added).

      In the instant case, plaintiff offered the testimony of Dr. Brian Quigley to

establish the standard of care for a hospital’s policy for communication of

discrepancies found in a radiologist’s over-read, and the hospital’s breach of that

standard. On appeal, the parties have offered arguments as to whether Dr. Quigley

was qualified to offer expert testimony on the standard of care for timely

communication between the radiologist and the emergency room staff of an X-ray

over-read discrepancy. Upon review of the transcript, however, we conclude that Dr.

Quigley did not offer testimony establishing either the standard of care or the

hospital’s breach of the standard. As a result, we find it unnecessary to address the

parties’ arguments concerning whether he would have been qualified to give such

testimony.

      Dr. Quigley, who testified as an expert in emergency medicine, testified that

he had reviewed information about Goldsboro and about Wayne Memorial Hospital

and specifically its emergency room, and was “familiar with the type of policies and

procedures that hospitals like Wayne Memorial should have in their emergency

room.” When asked by plaintiff’s counsel, Dr. Quigley agreed that a hospital should



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“have a system set up to make sure there’s good communication between radiology

and emergency medicine when there’s this kind of discrepancy between the

[physicians’ interpretation of X-rays].” Dr. Quigley testified as follows when asked by

plaintiff’s counsel to “explain the system, the policy that Wayne Memorial had set up

regarding these over, over -- X-Ray over-reads and the discrepancies.”

             [DR. QUIGLEY]: Well, a discrepancy policy means that
             there is a discrepancy between . . . an emergency
             physician’s reading versus what the radiologist’s is, and
             from what I understand, the policy was that they collected
             the X-rays from one midnight to the next midnight, and
             then they matched up what the radiologist’s reading was
             with what the emergency physician’s reading was, and if
             there was a discrepancy between the two, then they
             brought those up to the emergency department, they’re
             pulled by the nurse supervisor, and brought up to the
             emergency department, and then the physician assistant
             would review these discrepancies, look at the chart, look at
             the over-read of the radiologist, and then make a
             determination whether clinically they were of concern,
             whether or not to call the patient back or have them come
             back to the emergency department.

       Dr. Quigley’s testimony reflects a general understanding of the hospital’s

policy, with one significant omission: Dr. Quigley did not acknowledge that, in the

event that the radiologist determined that a discrepancy indicated a medical

condition requiring urgent attention, he would contact the emergency room staff

directly.

       On direct examination, Dr. Quigley indicated that he was generally “familiar

with the standard of care in February of 2011 in Goldsboro, North Carolina or similar


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communities as it applies to the type of care and treatment that Mario Johnson

received.” However, when he was questioned specifically about the X-ray over-read

discrepancy policies or practices of hospitals in the same or similar communities in

2011, Dr. Quigley conceded that he had no information on the subject:

            Q. Do you agree that Wayne Memorial Hospital followed
            their discrepancy policy as it was written?

            A. As it was written, yes.

                                          ...

            Q. Yesterday I believe, when you were answering Mr.
            Melvin’s questions, you said something to the effect that
            the Wayne Memorial discrepancy policy was an archaic
            system as it existed in February of 2011. Do you recall that?

            A. Yes, sir.

            Q. Now, did you make any effort to call around to any
            hospitals other than Rex to find out what type of systems
            they were using for discrepancies?

            A. No, I didn’t make any specific phone calls.

            Q. Okay. So you don’t know if this Rex policy is similar to
            the type of policies that are being used in other hospitals
            throughout Eastern North Carolina?

            A. Well, I think every hospital operates a little differently.
            I can only speak for the fact that we have 24 hour coverage
            currently, and in 2011.

                                          ...

            Q. Okay? You cannot say, as you sit here today, whether
            the policy that Wayne Memorial Hospital had in February


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             of 2011 is similar to that of other hospitals similarly
             situated in Eastern North Carolina at that same time.

             A. No, I would have had to go back in time in 2011 and call
             each specific Emergency Department and find out what
             their policies were.

             Q. Well, you could have done that in advance of your
             deposition two years ago. Correct?

             A. Yes.

             Q. You did not.

             A. No, I didn’t make any calls.

             Q. And you haven’t made any such calls or made any
             inquiry since May 13, 2014. Correct?

             A. That’s correct.

      Dr. Quigley did not offer any testimony at trial that could establish the

standard of care applicable to the policies or practices of hospitals in similar

communities in 2011 concerning the time frame for communication of an over-read

discrepancy between a radiologist and the emergency room staff. The absence of any

testimony on the standard of care is consistent with Dr. Quigley’s admission that he

had not made any inquiries to determine the practices of other hospitals in 2011. We

conclude that Dr. Quigley failed to offer evidence on the relevant standard of care and

that, because Dr. Quigley was plaintiff’s only witness on this issue, the trial court did

not err by granting directed verdict in favor of the hospital.

      In urging us to reach a different conclusion, plaintiff asserts that:


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              Dr. Quigley testified that he was familiar with the
              standard of care in Goldsboro, N.C. and similar
              communities and that Wayne Memorial had violated the
              standard of care by having a system that allowed for a 28-
              hour delay in informing the emergency department that
              the X-ray had been misread. Dr. Quigley testified that in
              order to comply with the standard of care Wayne Memorial
              needed a system where the radiologist’s interrogation [sic]
              of the X-ray needed to be brought to the attention of the
              emergency department within 4-5 hours.

       Plaintiff’s appellate brief cites pages 15, 55, and 61 of the trial transcript as

the sources for these contentions. Plaintiff accurately cites page 15 for the statement

that Dr. Quigley testified to his familiarity with the standard of care in Goldsboro

and similar communities. However, the testimony presented on the other pages cited

by plaintiff does not support plaintiff’s position. Following is the testimony to which

plaintiff refers:

              Q. Now this system that Wayne Memorial has about
              getting this information from Radiology to the Emergency
              Room, in your opinion, is that system within the standard
              of care for a hospital emergency room?

              A. No, especially not in 2011.

              Q. Why not?

              A. Well, if you look at the record it was actually read by the
              radiologist . . . [Mr. Johnson] was discharged early morning
              on the 11th, and was discharged home at that time at about
              5 a.m. The radiologist over-read the film and had a report
              in the system electronically at 7:58 a.m. . . . [B]ut then
              there’s a delay with this process with the midnight to
              midnight, then no one sees the discrepancy on the over-



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                                  Opinion of the Court



             read for 24, 28 hours. And this makes a difference
             clinically.

                                          ...

             Q. . . . Now, to have a system or a policy that meets the
             standard of care, in your opinion, how long can the delay
             be? We've got about a 28 to 30 hour in Mario’s case. If
             they’re going to have a system that meets the standard of
             care, how long should the delay be?

             A. I would say that, in 2011, with the electronic dictations
             into the chart, maybe 4 or 5 hours.

             Q. All right. And that would -- I’m sorry.

             A. Roughly. Roughly.

             Q. Okay.

             A. That’s a guess.

             Q. And that would mean, in Mario’s case, that should have
             come to somebody’s attention by what time?

             A. Well, if you -- if you go by this system, if they read at
             7:58 and someone’s ongoingly pulling up these
             discrepancies, it should have occurred earlier on February
             11.

             Q. All right.

             A. Sometime maybe early morning, late morning, early
             afternoon.

      We conclude for several reasons that Dr. Quigley’s testimony did not constitute

competent evidence of the relevant standard of care or of the hospital’s breach of that

standard. First, Dr. Quigley offered no testimony or other evidence as to the policies


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                                   Opinion of the Court



in effect at other hospitals in similar communities in 2011. In fact, as discussed

above, Dr. Quigley admitted that he had never tried to obtain information on the

subject. Dr. Quigley was asked how long the delay “should be,” and not how long the

delay actually was in comparable hospitals. As a result, the jury would have had no

way to compare the time frame of this hospital’s policy to that of other hospitals.

Secondly, when asked how long the delay should be, Dr. Quigley candidly admitted

that he could only guess. He estimated that the emergency room should be made

aware of the radiologist’s over-read within “roughly, roughly” “maybe 4-5 hours,”

which he conceded was “a guess.” Taking into consideration Dr. Quigley’s admitted

lack of information about the pertinent standard of care, the absence of testimony

establishing the standard, and Dr. Quigley’s characterization of an appropriate time

frame as a rough guess, we conclude that Dr. Quigley did not offer competent evidence

on the standard of care or the hospital’s breach of that standard.

                                        IV. Conclusion

      Having reached this conclusion, we find it unnecessary to reach the parties’

other arguments. We conclude that the trial court did not err by granting directed

verdict in favor of the hospital and that its order should be

      AFFIRMED.

      Judges DILLON concurs.

      Judge BERGER, JR. concurs in result only.



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