McDonald v. SainiÂ


                                   No. COA19-1107

                                Filed: 6 October 2020

Cumberland County, No. 17 CVS 7810




        Appeal by Plaintiff from Order entered 13 May 2019 by Judge Gale M. Adams

in Cumberland County Superior Court. Heard in the Court of Appeals 12 August


        Michael R. Porter and Reed N. Noble, for plaintiff-appellant.

        Batten Lee, PLLC, by Gloria T. Becker and Arienne P. Blandina, for

        HAMPSON, Judge.

                       Factual and Procedural Background

        Thomas McDonald (Plaintiff) appeals from an Order entered 13 May 2019

granting summary judgment in favor of Defendants Saira H. Saini M.D., FACS, (Dr.

Saini) and Carolina Plastic Surgery of Fayetteville (collectively, Defendants) in this

medical malpractice action. The Record before us tends to show the following:

        On 28 May 2014, Plaintiff visited Dr. Saini at Carolina Plastic Surgery for a

consultation regarding his concerns over the appearance of his chest. Dr. Saini
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                                    Opinion of the Court

determined Plaintiff would be a good candidate for a bilateral chest liposuction.

Plaintiff again met with Dr. Saini on 30 September 2014, and 28 October 2014, to

review the plan for Plaintiff’s procedure and answer any related questions. Plaintiff’s

surgery was scheduled for 31 October 2014, at Highsmith-Rainey Specialty Hospital

in Fayetteville, North Carolina.

        As scheduled, on 31 October 2014, Dr. Saini performed a bilateral chest

liposuction as a part of revision gynecomastia surgery on Plaintiff at Highsmith-

Rainey Hospital. Plaintiff was discharged later that afternoon and his follow-up

appointment with Dr. Saini was scheduled for 4 November 2014. At Plaintiff’s follow-

up appointment on or about 4 November 2014, Plaintiff removed his bandages and

discovered what he described as big, purplish black blisters across his chest that

appeared to be filled with pus. Plaintiff continued to see Dr. Saini for post-operative

care, which included injections and laser treatment for scar therapy, until March


        After believing his continuing treatment with Dr. Saini was not improving the

condition of his chest, in April 2015, Plaintiff met with Malcom W. Marks, M.D. (Dr.

Marks), a plastic and reconstructive surgeon at Wake Forest Baptist Medical Center

in Winston Salem, North Carolina, regarding his scarring. Ultimately, in February

of 2017, Plaintiff underwent a second procedure with Dr. Marks to reduce the

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                                       Opinion of the Court

visibility and severity of his scarring. As Plaintiff’s treating physician, Dr. Marks

testified Plaintiff had keloids and hypertrophic scarring.

       On 27 February 2018, Plaintiff filed a Complaint alleging several medical

malpractice claims against Dr. Saini and Carolina Plastic Surgery of Fayetteville.1

Relevant to this appeal, Plaintiff’s Medical Negligence Claim alleged Dr. Saini:

           a. Failed to use proper surgical techniques . . . thereby causing
              third degree full thickness burns and permanent scars;

           b. Failed to ensure that the surgical equipment she was utilizing
              was in proper working order . . . ;

           c. Failed to ensure that proper procedures were followed to
              prevent burning to include, inter alia, the proper injection of
              fluids so as to prevent burns[;]

           d. Failed to ensure that the equipment that she was utilizing was
              not overheating or set to a heat level that was too high to be
              used upon the Plaintiff;

           e. . . . [F]ailed to properly supervise the nurses and/or other
              operating room support staff . . . to ensure that they were
              properly following procedures and protocol to prevent burns .

Plaintiff sought compensatory and punitive damages. Defendants accepted service

on 13 March 2018, and filed their Answer and Motion to Dismiss Plaintiff’s Complaint

on 14 May 2018.

       1  Plaintiff’s Complaint also named as Defendants the Cumberland County Hospital System,
Inc. d/b/a Cape Fear Valley Health System, Amy L. Lovingood, John Harden, and Kathryn Jordan;
however, Plaintiff dismissed his claims against them as Defendants with prejudice on 3 August 2018.

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                                   Opinion of the Court

      Also on 14 May 2018, Defendants filed a Motion for Summary Judgment

(Motion) arguing they were entitled to summary judgment as a matter of law because

Plaintiff could not establish Defendants breached the applicable standard of care and

Plaintiff had not presented evidence of a genuine issue of material fact “linking any

alleged act or omission on the part of the Defendants to a cause of Plaintiff’s injury.”

Plaintiff submitted evidence in response to Defendants’ Motion, including Plaintiff’s

medical records and depositions from Dr. Saini, Plaintiff, Dr. Marks, surgical

technicians Kathryn Jordan (Jordan) and John Harden (Harden), circulating nurse

Amy Lovingood (Lovingood), and Dr. Detlev Erdmann (Dr. Erdmann), Plaintiff’s

designated expert witness.

      Dr. Saini testified during her deposition she performed a bilateral chest

liposuction on Plaintiff to remove excess fatty tissue from his chest. Dr. Saini testified

she used an Aspirator II liposuction machine for Plaintiff’s procedure, which is a

suction device.   The Operating Room Report (OR Report), included as part of

Plaintiff’s medical records, did not reflect any heat source was used during Plaintiff’s

procedure.    It identified an electrocautery device known as a “Bovie” and an

“Aspirator II” liposuction machine were present in the OR at the time of the

procedure. Dr. Saini also testified no heat source was used during the procedure, and

she reiterated it is standard for a Bovie to be present in the OR.

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                                   Opinion of the Court

       Depositions taken from Lovingood, Harden, and Jordan—all present during

Plaintiff’s procedure—reflected it was standard procedure for a Bovie to be present

in the OR regardless of whether it is expected to be used in the procedure. Lovingood,

Harden, and Jordan each testified Highsmith-Rainey Hospital did not have a laser-

assisted liposuction machine, which uses a heat source, at the time of Plaintiff’s


      Plaintiff’s expert witness, Dr. Erdmann, is a board-certified plastic surgeon

and professor at Duke University School of Medicine. Dr. Erdmann testified during

his deposition Plaintiff’s hypertrophic scarring was the result of burns Plaintiff

obtained during the procedure. Dr. Erdmann testified hypertrophic scarring, such as

Plaintiff’s, was usually the result of trauma or burns but could also occur in the

absence of physician negligence and with the best of care. In this case, it was Dr.

Erdmann’s opinion Dr. Saini breached the standard of care owed to Plaintiff on the

basis of Plaintiff’s “excessive scarring outside the surgical field.” Dr. Saini’s counsel

requested Dr. Erdmann “pinpoint to anything that Dr. Saini did or did not do that

caused the third-degree burns or excessive scarring[,]” however, Dr. Erdmann stated:

“I cannot pinpoint this. It would be pure speculation.”

      Dr. Erdmann further testified burns, such as Plaintiff’s, commonly require a

heat source.   Dr. Erdmann’s two theories for Plaintiff’s burns were either “a[n]

internal heat source,” such as a laser-assisted liposuction machine or an

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                                   Opinion of the Court

electrocautery device, or an external heat source, “such as a fire in the operating

room.” Dr. Erdmann conceded an electrocautery device would be an “unlikely” source

for Plaintiff’s alleged burns and that there was no indication the electrocautery device

was used. Dr. Erdmann also agreed such device is routinely in an operating room.

When questioned by Defendants’ counsel that it was “just speculation that they’re

burns, correct?”   Dr. Erdmann answered: “Um-hmm, absolutely, yeah.”             In an

exchange with Plaintiff’s own counsel Dr. Erdmann reiterated his theories about the

burns “are speculation because [he] couldn’t find any -- anything in the medical record

that would explain the burns.”       Dr. Erdmann was also unable to exclude the

possibility of something happening after Plaintiff’s surgery.

      On 29 April 2019, the trial court heard arguments on Defendants’ Motion, and

on 13 May 2019, the trial court entered its written Order granting Summary

Judgment in favor of Defendants on all Plaintiff’s remaining claims. Plaintiff timely

filed written Notice of Appeal on 12 June 2019.


      On appeal, the issue before this Court is whether the trial court properly

granted summary judgment in favor of Defendants on the basis Plaintiff’s expert

testimony was insufficient to establish any genuine issue of material fact as to

whether Dr. Saini breached the applicable standard of care during her surgery on

Plaintiff proximately causing Plaintiff’s injuries.

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                                  Opinion of the Court


                                I. Standard of Review

      “Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows that there is no genuine issue

as to any material fact and that any party is entitled to a judgment as a matter of

law.” In re Will of Jones, 

362 N.C. 569

, 573, 

669 S.E.2d 572

, 576 (2008) (citations and

quotation marks omitted). “Upon a motion for summary judgment, the moving party

carries the burden of establishing the lack of any triable issue and may meet his or

her burden by proving that an essential element of the opposing party’s claim is

nonexistent.” Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC, 

240 N.C. App. 337

, 341, 

770 S.E.2d 159

, 162 (2015) (alterations, citations, and quotation

marks omitted). “If met, the burden shifts to the nonmovant to produce a forecast of

specific evidence of its ability to make a prima facie case, which requires medical

malpractice plaintiffs to prove, in part, that the treatment caused the injury.”

Cousart v. Charlotte-Mecklenburg Hosp. Auth., 

209 N.C. App. 299

, 302, 

704 S.E.2d 540

, 543 (2011) (citations omitted).

                                II. Medical Negligence

             In a medical malpractice action, a plaintiff has the burden of
          showing (1) the applicable standard of care; (2) a breach of such
          standard of care by the defendant; (3) the injuries suffered by the
          plaintiff were proximately caused by such breach; and (4) the
          damages resulting to the plaintiff.

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                                   Opinion of the Court

Purvis v. Moses H. Cone Mem’l Hosp. Serv. Corp., 

175 N.C. App. 474

, 477, 

624 S.E.2d 380

, 383 (2006) (citations and quotation marks omitted). “[E]xpert opinion testimony

is required to establish proximate causation of the injury in medical malpractice


Cousart, 209 N.C. App. at 303

, 704 S.E.2d at 543. However, “[a]n expert is

not competent to testify as to a causal relation which rests upon mere speculation or

possibility.”   Hawkins, 240 N.C. App. at 

342, 770 S.E.2d at 163

(citations and

quotation marks omitted). “Not only must it meet our courts’ definition of proximate

cause, but evidence connecting medical negligence to injury also must be probable,

not merely a remote possibility.” 

Cousart, 209 N.C. App. at 302

, 704 S.E.2d at 543

(citation and quotation marks omitted). Accordingly, “Plaintiffs are required to make

a prima facie case of medical negligence during a summary judgment hearing, ‘which

includes articulating proximate cause with specific facts couched in terms of

probabilities.’ ” Hawkins, 240 N.C. App. at 

342, 770 S.E.2d at 163


Cousart, 209 N.C. App. at 303

-04, 704 S.E.2d at 343).

       In the present case, Defendants moved for summary judgment on the basis

Plaintiff did not forecast evidence Defendants breached the applicable standard of

care or that Dr. Saini’s alleged breach proximately caused Plaintiff’s injury. The trial

court, concluding there was no genuine issue of material fact, granted Defendants’

Motion. On appeal, Plaintiff contends an issue of material fact exists regarding

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                                         Opinion of the Court

whether Dr. Saini used a “Vaser” or heat-assisted laser liposuction machine.2

Plaintiff relies solely upon Dr. Erdmann’s deposition testimony to support this

argument. However, Dr. Erdmann’s deposition testimony is—in his own words—


       Dr. Erdmann agreed there was nothing in Plaintiff’s medical records that

would explain the presence of his burns. When asked by Defendants’ counsel: “And

you don’t have any direct evidence that the vaser or a laser-assisted liposuction was

used or an electrocautery was used other than your speculation that the resultant

scars are from burns?” Dr. Erdmann conceded, “Correct. . . . I believe these are burns

and I don’t know what caused the burns.” Meanwhile, Dr. Saini, Jordan, Harden,

and Lovingood testified there was no Vaser liposuction machine available at

Highsmith-Rainey Hospital and no fire occurred in the operating room. The parties

do not dispute a Bovie was present during Plaintiff’s procedure; however, the

deposition testimony of Dr. Saini, Lovingood, Harden and Jordan, established it was

standard protocol to have one available and, further, Dr. Saini did not use the Bovie.

Dr. Erdmann further conceded it was an unlikely source of the burns.

       Plaintiff argues a gap in the OR Report creates a question of material fact

because Dr. Erdmann testified: “I reviewed the OR Report, and when I reviewed the

       2  Dr. Erdmann testified a “Vaser” is “the most well-known company or type of machine”
associated with laser-assisted liposuction and explained laser-assisted liposuction combines “a heating
source that is entertained by a laser, and the idea behind it is to melt down tissue that cannot be
removed with conventional liposuction only.”

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                                   Opinion of the Court

OR Report, there is a gap in the OR Report as such as somebody erased something,

and it would fit with, I can only speculate, the term [V]aser.” (emphasis added). The

parties do not dispute the presence of a blank in the OR Report where Dr. Saini

described: “After waiting an appropriate amount of time for the epinephrine and

lidocaine to work, a [blank] liposuction was used.”       However, Plaintiff does not

forecast any evidence a laser-assisted liposuction machine was available at

Highsmith-Rainey Hospital, and further, that such device was used during Plaintiff’s

procedure. Instead, Dr. Saini, Harden, Jordan, and Lovingood all testified there was

no Vaser available at Highsmith-Rainey Hospital at the time of Plaintiff’s procedure.

Further, Plaintiff’s medical records, as included in the Record, reflect the liposuction

machine used was an “Aspirator II” model, which Dr. Erdmann admitted does not

use heat.

      It is well established a forecast of specific facts supporting proximate cause is

required for a plaintiff to survive a motion for summary judgment in a medical

malpractice action.    Hawkins, 240 N.C. App. at 

341-42, 770 S.E.2d at 162-63


Moreover, “evidence connecting medical negligence to injury also must be probable,

not merely a remote possibility.” 

Cousart, 209 N.C. App. at 302

, 704 S.E.2d at 543

(citation and quotation marks omitted). Thus, where a plaintiff is unable to forecast

specific facts supporting proximate cause, this Court has held summary judgment

proper. See Kenyon v. Gehrig, 

183 N.C. App. 455

, 459, 

645 S.E.2d 125

, 128 (2007)

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                                   Opinion of the Court

(affirming summary judgment in favor of the defendants where “several theories

[were] presented to show that defendants could have been negligent[,]” yet “all of

plaintiff’s expert witnesses based their opinions only on the fact of the injury itself;

their assignation of negligence on defendants’ part constituted mere speculation”); see

also Campbell v. Duke Univ. Health Sys., Inc., 

203 N.C. App. 37

, 45, 

691 S.E.2d 31


36-37 (2010) (affirming summary judgment and concluding “plaintiff [was] unable to

present a forecast of evidence showing the existence of a genuine issue of material

fact” where the plaintiff’s expert testimony “constitute[d] mere speculation as to the

proximate cause of plaintiff’s injuries”).

      In the case sub judice, there is no testimony from Dr. Erdmann—Plaintiff’s

sole expert witness—identifying a negligent act that likely caused Plaintiff’s injury.

Instead, Dr. Erdmann testified hypertrophic scarring can occur in the absence of

physician negligence.      Although Dr. Erdmann hypothesized two theories for

Plaintiff’s alleged burns, he conceded his theories were based on speculation.

Additionally, when Dr. Saini’s counsel asked Dr. Erdmann if he could “exclude the

possibility of something happening after the surgery?” Dr. Erdmann answered, “I

cannot exclude anything.”

      Defendant cites this Court’s unpublished opinion in Williams v. Humphreys

and contends Dr. Erdmann was making a differential diagnosis, thereby ruling out

the possibility of other causes for Plaintiff’s injuries. 

227 N.C. App. 456


744 S.E.2d

11 -
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                                   Opinion of the Court

496 (2013) (COA 12-814) (unpublished). In Williams, this Court reversed the trial

court’s grant of summary judgment in favor of the defendants, concluding there was

“sufficient evidence of causation to give rise to a genuine issue of material fact.”

Id. (slip op. at

15). However, in Williams, the plaintiff’s experts “considered the nature

of the injury to identify possible causes of that injury, including analysis of medical

literature relating to that type of injury; eliminated unlikely causes; and reached

opinions that the likely cause was improper positioning of [the plaintiff] during the


Id. (slip op. at

13). The Williams Court distinguished Kenyon and Campbell

on the basis the plaintiff “presented expert testimony—and an admission from one of

the defendants—identifying the precise allegedly negligent act that likely caused the


Id. (slip op. at

12). In the present case, and unlike the experts’ testimony

in Williams, Dr. Erdmann did not eliminate unlikely causes of Plaintiff’s injury and,

in fact, concedes multiple times much of his opinion is based on speculation.

Moreover, Dr. Erdmann did not identify “a precise allegedly negligent act” by Dr.

Saini that likely caused Plaintiff’s injuries.

Id. Thus, Dr. Erdmann’s

expert testimony, required to establish Plaintiff’s prima

facie case of medical negligence, fails to articulate any negligent act or omission by

Defendants that proximately caused Plaintiff’s injury beyond mere speculation.

Hawkins, 240 N.C. App. at 

342, 770 S.E.2d at 163

(citation and quotation marks

omitted). Accordingly, Plaintiff did not meet his burden to forecast specific facts Dr.

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                                  Opinion of the Court

Saini breached the applicable standard of care and was the proximate cause of

Plaintiff’s injury. The trial court’s grant of summary judgment in favor of Defendants

was proper.


      Accordingly, for the foregoing reasons, the trial court’s Order is affirmed.


      Judges MURPHY and YOUNG concur.

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