News: An appeals court affirmed a trial court’s decision that a physician was properly disqualified as an expert witness. The witness failed to strictly satisfy state law statutory requirements for expert witnesses who testify on the standards of care owed by non-physician healthcare providers.
In this malpractice lawsuit, the plaintiffs alleged nurses caring for their mother failed to notify her surgeon of the signs and symptoms of her internal bleeding, ultimately leading to her death. However, the plaintiffs’ expert witness was disqualified from testifying because he did not possess the requisite experience supervising, teaching, or instructing nurses in identifying and reporting signs and symptoms of postoperative internal bleeding required by state statute.
This case clarifies physicians who wish to testify as experts on the nursing standard of care may need the requisite experience supervising, teaching, or instructing nurses in the specific area of the standard of care at issue. It also highlights the importance of retaining qualified experts in medical malpractice cases from the outset. The plaintiffs’ case was unsuccessful because their expert witness was disqualified; therefore, they had no one to testify to the standard of care and whether the defendant breached that standard.
Background: In October 2013, a patient underwent surgery to remove her left kidney. Several days later, while recovering in the hospital, she suffered from internal bleeding and died. The plaintiffs, her children, filed a complaint alleging the nurses fell below the standard of care by failing to identify and notify the patient’s surgeon of the signs and symptoms of her internal bleeding, including her low blood pressure, elevated heart rate, and decreased urine output. They alleged the nurses were responsible for monitoring the patient’s condition and notifying her surgeon of any changes but failed to identify or notify the surgeon of patient’s internal bleeding until it was too late.
The plaintiffs submitted an affidavit from a physician who testified the nurses had breached the accepted standard by failing to identify and give notice of the signs and symptoms of the patient’s postoperative bleed. The defendant medical center sought to disqualify the physician’s opinion, arguing he was unqualified to render nursing standard of care opinions because he had not supervised, taught, or instructed nurses as required by the state statute. The defendant also moved for summary judgment, noting that without the expert, the plaintiffs could not offer anyone to establish the standard of care.
The plaintiffs argued that although an expert witness must be in the same profession as the defendant, the state statute still permits a physician to qualify as an expert as to non-physician providers, such as the nurse defendants, if the physician has supervised, taught, or instructed such non-physician providers. The plaintiffs argued their expert witness was qualified as an expert given his two decades of medical experience, which included several lectures he had given to nurses on nursing documentation, expectations regarding the standard of care, and communicating effectively with physicians. The plaintiffs also noted their expert was chair of a medical center’s “quality control council.”
However, the trial court ruled the proposed expert witness was inexperienced in supervising, teaching, or instructing nurses in identifying and reporting signs and symptoms of postoperative internal bleeding. His lectures did not involve this subject, either. Applicable state law only allows a physician to testify as an expert witness in a medical malpractice case involving a non-physician provider if they have supervised, taught, or instructed that type of provider for at least three of the past five years before the date of the alleged negligence. The plaintiffs’ proposed expert witness acknowledged during the previous five years, he had not taught at a nursing school nor supervised nurses daily.
The expert witness’s testimony was crucial to the plaintiffs’ case. He was the only witness they retained who could testify to this standard of care. The court granted summary judgment for the defendant. A three-judge appeals court panel upheld the ruling.
What This Means for You: This ruling is a reminder of the crucial importance of consulting with counsel and investigating statutory requirements when selecting an expert witness who is not in the same profession as the defendant. Although a physician may offer expert testimony on non-physician healthcare providers if he or she meets the statutory exception where applicable, this case suggests courts will require strict compliance with the statutory exception the physician has supervised, taught, or instructed the non-physician providers in three of the last five years. Without strict compliance with this requirement, a court will do expert witnesses no favors, even if the proposed expert has decades of experience.
This case also highlights the critical role of identifying a qualified expert witness from the beginning. The expert’s affidavit was attached to the plaintiffs’ complaint early in the case. By the time the case progressed to the expert’s disqualification, the defendant medical center moved for summary judgment because the plaintiffs had not offered another expert to establish the standard of care. The plaintiffs’ decision to retain this physician as their expert when filing the complaint sealed their fate. This serves as a reminder for both plaintiffs and defendants to ensure their chosen expert witnesses possess the relevant experience and qualifications for the case.
Although the decision is unfavorable to the plaintiffs, it is worth noting the statutory requirements for expert witnesses apply with equal force to either party in a medical malpractice case. Thus, physicians and hospitals facing litigation must not only demand plaintiffs strictly comply with statutes on the qualification of expert witnesses, but they also must ensure their own compliance when qualifying an expert. It is critical to consult with experienced counsel in the applicable jurisdiction to ensure such statutes are known.
This ruling also underscores the prized attributes of potential experts — effectiveness in front of a jury, winning record, the ability to withstand cross-examination pressure, and clear communication skills — mean little if a party cannot cross the basic threshold of qualifying the expert. When considering experts, parties often focus on the finish line, but the beginning deserves as much attention to avoid a similar situation: a disqualified expert and resulting summary judgment in the defendant’s favor.
It is ultimately the physician’s responsibility to know his or her patient’s condition. However, as the healthcare industry grew and physicians were caring for more patients, nursing responsibilities grew to meet the need by requiring patient monitoring, documentation, and reporting of observed or measured changes in symptoms and care requirements. This quickly became the standard of care in all settings where nurses are used to provide patient care under the orders of a physician or other licensed independent practitioner. Nurses assume leadership roles within these settings and possess advanced degrees that qualify them to teach other nurses and serve as expert witnesses when nurses’ care is in question. With or without a degree, a seasoned nurse who has supervised subordinates and peers can offer valid testimony that often withstands whatever legal scrutiny the opposition tosses at it. Attorneys are missing opportunities by not using this resource.
Finally, physicians and healthcare providers should know the experience and qualifications necessary to testify as experts, especially when it comes to professional standards of non-physician healthcare providers. Although a plaintiff (or defendant) may be thrilled an intelligent, experienced physician with a winning track record is willing to testify on their behalf, it may be worth declining the invitation if there are doubts as to whether the expert can strictly comply with an applicable expert witness statute. It is critical to consult with experienced counsel in your state to understand any such applicable statutes, which will vary by state.
REFERENCE
- Decided June 21, 2023, in the Court of Appeals of Georgia, Case No. A23A0267.
This ruling is a reminder of the crucial importance of consulting with counsel and investigating statutory requirements when selecting an expert witness who is not in the same profession as the defendant.
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