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Who’s Your Expert? Nurses’ Testimony in Medical Malpractice Cases

By Jarryd Anglin

Medical malpractices cases usually center on expert testimony. In fact, expert testimony is almost always required in such cases. “The question of the appropriate standard of care (in medical malpractice cases) may not be resolved without resort to expert testimony.”  Marquis v. Battersby, 443 N.E.2d 1202 (Ind. Ct. App. 1982).  If all the expert testimony supports one conclusion, summary judgment is appropriate. Id.

The question then becomes what expert testimony is needed to support or refute a motion for summary judgment.  For qualified providers, the medical review panel’s opinions are admissible. I.C. § 34-18-10-23. If a defendant receives a unanimous opinion in its favor from the panel, a plaintiff must come forward with expert testimony refuting the panel’s opinions and vice versa. 

Some lawyers retain nurses in medical malpractice cases because they tend to be less expensive than doctors. That can be a fatal error.  Litigation expenses certainly merit consideration. However, the old adage ‘You get what you pay for’ still rings true.

Nurses can prove to be valuable when opining as to the standard of care for other nurses. However, their testimony is not on equal footing with a physician’s.  Generally, nurses are not allowed to opine as expert witnesses on medical causation and medical standards of care. See Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 44 (Ind. Ct. App. 2010) The Court of Appeals muddied the waters a bit in Curts v. Miller’s Health Sys., 972 N.E.2d 966 (Ind. Ct. App. 2012). While ultimately striking a nurse’s testimony, that Court stated, “…it is possible for a nurse to have sufficient expertise to qualify as an expert witness under Indiana Evidence Rule 702 and opine on whether the care of certain healthcare providers fell below the requisite standard of care and whether such inadequate care caused a particular medical injury….”  In some respects, Curts set a trap.  While the door is still open for nurses to opine as experts in some cases, lawyers might be best served by acting as if the door was closed.

There are two key parts to an expert’s testimony in medical malpractice cases. The expert must opine on the standard of care required by the medical actor in question. For physicians, it is relatively easy to deal with the standard of care component. Even conclusory statements that the physician is familiar with the applicable standard of care may suffice. See Kopec v. Memorial Hosp. of South Bend, Inc., 557 N.E.2d 1367 (1990).  

However, nurses are not qualified to offer expert testimony on the standard of care for physicians. Stryczek v. Methodist Hospitals, 694 N.E.2d 1186, 1189 (Ind. Ct. App. 1998). Indiana Courts routinely cite the differences between a nurse’s training and a physician’s, as well as the fact that physicians receive an unlimited medical license, while nurses do not.  Nurses are allowed to sit on medical review panels and opine as to the standard of care of other nurses. However, it appears nurses must go through a more thorough vetting under I.R.E. 702 prior to their testimony on the applicable standard of care being admitted into evidence. Curts, 972 N.E.2d at 971.

In addition to opining as to the requisite standard of care, the expert must also opine as to whether the breach of the standard of care caused the injuries in question. A nurse may not be allowed to opine as to medical causation, even when the nurse’s testimony is admissible as to the standard of care. Nasser, 926 N.E.2d at 51-52.

Nursing licenses only allow nurses to provide a nursing diagnosis. I.C. § 25-23-1-1.1.  A nursing diagnosis is defined as “The identification of needs which are amenable to a nursing regimen.” I.C. § 25-23-1-1.1(d). In contrast, a physician’s diagnosis may determine the source or nature of a disease or other physical or mental condition. I.C. § 25-22.5-1-1.1(c).  Indiana’s Courts have frequently looked to those differences in determining the scope of a nurse’s testimony.

A recent case from Lake County Superior Court, The Estate of Harold Coleman v. Capital Senior Living, et al, Cause No. 45D04-1806-CT-000252, is illustrative. The injuries in that case were pressure ulcers. The Defendants, a physician and a long-term care facility, received a unanimous medical review panel opinion in their favor. Both defendants moved for summary judgment citing the medical review panel. Plaintiff came forward with an affidavit from a nurse in response.

The judge held the nurse could not opine as to whether the physician breached the standard of care and granted the physician’s motion for summary judgment. Initially, the judge denied the long-term care facility’s motion, stating that the nurse could opine as to whether the facility met the standard of care. However, the facility filed a motion to correct error noting the judge had not determined whether the nurse could opine on whether any breach by the facility caused plaintiff’s injury.  The judge ruled that the nurse could not opine on medical causation and granted the facility’s motion for summary judgment.

The cost-effective aspect of retaining nurses may be attractive, but it could be a siren’s song leading lawyers astray. Defur Voran’s Insurance Defense Group will take steps to have your insureds backed by proper expert testimony. Call us today for a consultation. We are committed to vigorously defending our clients in a  cost effective manner. 

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