A state ban on allowing registered nurses to provide expert testimony has been overturned by the Pennsylvania Supreme Court. The impact of the decision may be limited because of 2002 legislation known as the MCARE Act which requires expert witnesses in medical professional liability cases to be a registered physician or a recent retiree. However Justice Debra Todd noted that MCARE does not apply to other cases, such as other professional liability cases or criminal cases.

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And from Sullivan v. Edwards…

AANA persuasively reasons:

“A physician, who is not a nurse, is no more qualified to offer expert, opinion testimony as to the standard of care for nurses than a nurse would be to offer an opinion as to the physician standard of care. *** Certainly, nurses are not permitted to offer expert testimony against a physician based on their observances of physicians or their familiarity with the procedures involved. An operating room nurse, who stands shoulder to shoulder with surgeons every day, would not be permitted to testify as to the standard of care of a surgeon. An endoscopy nurse would not be permitted to testify as to the standard of care of a gastroenterologist performing a Colonoscopy. A labor and delivery nurse would not be permitted to offer expert, opinion testimony as to the standard of care for an obstetrician or even a midwife. Nor would a nurse be permitted to testify that, in her experience, when she calls a physician, he/she usually responds in a certain manner. Such testimony would be, essentially, expert testimony as to the standard of medical care.”

Scholars share this reasoning:

“Physicians often have no first-hand knowledge of nursing practice except for observations made in patient care settings. The physician rarely, if ever, teaches in a nursing program nor is a physician responsible for content in nursing texts. In many situations, a physician would not be familiar with the standard of care or with nursing policies and procedures which govern the standard of care. Therefore, a physician’s opinions would not be admissible in jurisdictions which hold the expert must be familiar with the standard of care in order to testify as an expert. An example of a common situation which gives rise to allegations of nursing negligence occurs when a nurse fails to follow the institutional ‘chain of command’ in reporting a patient condition to a physician who subsequently refuses to attend to the patient condition. It is unlikely that a physician would be familiar with the policy and procedure involved in handling such a situation. It is as illogical for physicians to testify on nursing standard of care as it would be for nurses to testify about medical malpractice.” E. Beyer & P. Popp, Nursing Standard of Care in Medical Malpractice Litigation: The Role of the Nurse Expert Witness, 23 J. Health & Hosp. L. 363, 365 (1990).

This scholarly insight has spread to litigators:

“Testimony from a physician about the standard of care may be subject to objection because the physician is not a nurse and does not have direct knowledge of nursing standards of care. A physician’s statement that he or she often observes nurses and therefore knows what they do may be inadequate.” P. Sweeney, Proving Nursing Negligence, 27 Trial 34, 36 (May 1991).

Beyond scholars and litigators, courts have begun to accept this reasoning.

In some jurisdictions, “the physician is no longer permitted to testify about the nursing standard of care since the physician is not a nurse and does not possess direct knowledge of nursing standards.” F. Cavico & N. Cavico, The Nursing Profession in the 1990′s: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557, 578 (1995); see Dolan v. Jaeger, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784, 786-87 (2001) (upholding trial court’s dismissal of nursing malpractice action where physician anesthesiologist was only expert to testify as to nurse’s standard of care); Vassey v. Burch, 45 N.C. App. 222, 226, 262 S.E.2d 865, 867 (“Although the affidavit of [the physician] may be sufficient to establish the accepted standard of medical care for a doctor in his office, it does not establish the standard of care for a nurse in a hospital”), rev’d on other grounds, 301 N.C. 68, 269 S.E.2d 137 (1980). According to one scholar:

“These cases represent a growing recognition on the part of courts that nursing, as a profession, has moved beyond its former dependence on the physician, and into a realm where it must and can legally account for its own professional practices. In doing so, the experts who provide the testimony, and the literature from which their opinions are derived, come from the nursing profession.” C. Kehoe, Contemporary Nursing Roles and Legal Accountability: The Challenge of Nursing Malpractice for the Law Librarian, 79 Law Libr. J. 419, 428-29 (1987).

Based on this reasoning, AANA argues that Dr. Barnhart should not be permitted to offer expert testimony against nurse Lewis based on his observation of nurses.

We agree. By enacting the Nursing and Advanced Practice Nursing Act (225 ILCS 65/5-1 et seq. (West 2000)), the legislature has set forth a unique licensing and regulatory scheme for the nursing profession. As AANA observes, under the nursing act, a person with a medical degree, who is licensed to practice medicine, would not meet the qualification for licensure as a registered nurse, nor would that person be competent to sit for the nursing license examination, unless that person completed an accredited program in nursing. See 225 ILCS 65/5-1 et seq. (West 2000). The appellate court in this case correctly reasoned:

“Dr. Barnhart is not a licensed member of the nursing profession. To allow the doctor to testify as to the standard of care applicable to the nursing profession implicates the risks raised by Dolan, namely, the imposition of a higher standard of care and the muddling and mixing of various tenets and practices unique to each profession.” 335 Ill. App. 3d at 272.

‘Nuff said!

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