Wrong expert testifies in a professional negligence case

By | 2019-10-23T09:11:29-04:00 October 23rd, 2019|0 Comments

Throughout the years, I have discussed numerous professional negligence cases against nurses and other healthcare providers and the role of the expert witness.

In my blogs, I always stress the expert witness in a professional negligence case must be a healthcare practitioner who is familiar with the standard of care for the care provider who was allegedly negligent. If this requirement is not met, the case against the healthcare practitioner, such as a nurse, will fail.

In 2007, The American Association of Nurse Attorneys published a position statement, “Expert Testimony in Nursing Malpractice Actions,” which supports this requisite as does a Tennessee case decided in 2019.

In the Tennessee case, Shelton v. Urgent Care, the patient went to the Greeneville Urgent Care to obtain pain medication. He had been a patient at the clinic before this visit. A medical assistant who was alone with the patient in an examining room asked the patient to get on the exam table.

The patient said he could not do so but the assistant “insisted” that she needed him to get on the table so she could take his blood pressure. The patient tried to step up to the exam table on a stool, but the stool slipped or moved, and the patient lost his balance and fell.

The medical assistant helped the patient up from the floor and to sit in a chair. The patient said he “struck the wall of the exam room and landed on his buttocks on the concrete floor.”

The medical assistant said as the patient was beginning to fall, she held him and he “sort of slid down her leg.” An LPN, who was outside of the room, stated she heard a noise and found the patient sitting on the exam table when she entered the room. No fall was recorded in the patient’s medical record.

A nurse practitioner examined the patient after the alleged fall and sent the patient to a nearby hospital. X-rays were taken, and the patient was sent home despite his complaints of pain.

The next day, the patient was informed by phone that he was being picked up by ambulance to return to the hospital because the X-ray indicated he had broken his back. He was treated there with surgery and physical therapy.

Patient files professional negligence suit

The patient sued the clinic and the hospital, citing:

  • The stool was dangerous.
  • Despite his physical limitations the clinic staff insisted he get onto the examining table without assistance.
  • The clinic failed to document the fall in his medical records (suggesting a cover-up).
  • The hospital failed to promptly diagnose and treat his injuries.

The defendants filed a motion for summary judgment. After a hearing, the trial court granted the motion. In so doing, the court also held the patient’s expert witness, neurosurgeon Edward Kaplan, MD, was not familiar with the standard of care for nurse practitioners, LPNs or medical assistants in a clinic setting.

The trial court eventually dismissed the dangerous stool allegations as well.

After several unsuccessful motions by the patient to reverse the decision of the trial court, the patient appealed the decision.

The appellate court’s determination

The appellate court had to resolve many legal issues before it in this professional negligence case, but Kaplan’s qualifications to be an expert witness when determining if a nurse practitioner, an LPN and/or a medical assistant met the applicable standard of care is germane to this blog.

Despite Kaplan’s testimony that he qualified as an expert, the appellate court reviewed Tennessee’s state statute governing who can be an expert witness in a healthcare case. The court pointed out the statute language does not allow testimony as an expert unless the person meets specific requirements, including the “expert’s practicing in a similar specialty to render an opinion about the standard of acceptable professional practice” governing, in this case, the nurse practitioner, LPN or medical assistant.

The appellate court also held that Kaplan lacked familiarity with the standard of care of professionals working in an urgent care facility.

Based on these and other inabilities of Kaplan to meet the requirements of providing expert witness testimony for the patient in this professional negligence case, the trial court’s decision was affirmed by the appellate court.

Inferences of the decision

It is important to note the appellate court was not convinced the patient fell as he claimed. But its final decision was based on the fact there was no qualified expert witness to testify as to the conduct of the LPN, the nurse practitioner, the medical assistant and their respective roles, if any, in the patient’s alleged fall.

This is yet another example of the importance of a nurse — whatever his or her title may be — testifying as an expert witness in a case involving alleged professional negligence on the part of another nurse.

As The American Association of Nurse Attorneys state in their publication, “it is clear that nursing is a profession, unique, identifiable, and autonomous. As a profession, nursing has the authority and responsibility to define its standards of practice. This includes those standards introduced as evidence of the standard of care of nursing care in the legal arena.”

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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, concentrates her solo law practice in health law and legal representation, consultation, and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues and has published extensively in the area of law and nursing practice. She brings more than 40 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. 

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