A Physician May Not Testify As To The Standard Care Of A Nurse
In a case that is likely to change medical malpractice trial and litigation strategy, the Illinois Supreme Court recently held that an expert witness physician in a medical malpractice case may not offer trial testimony regarding the standard of care applicable to a nurse or whether a nurse deviated from the standard of care. Sullivan v. Edward Hospital, 2004 Ill. LEXIS 352 (Ill.).
In Sullivan, plaintiff’s decedent, a partially paralyzed stroke patient, was hospitalized for a urinary tract infection. Due to the stroke, he had difficulty walking independently. While attempting to get out of his bed one night, he fell to the floor and struck his head. Plaintiff subsequently filed suit against the hospital and the patient’s physician alleging that the hospital and physician failed to properly monitor, medicate or restrain the patient, which resulted in the plaintiff’s injuries.
Plaintiff disclosed Dr. Barnhart, an internal medicine physician, as her expert witness against both the doctor and the hospital. At trial, Dr. Barnhart testified, among other things, how a nurse deviated from the standard of care and how the patient was injured as a result. At the conclusion of plaintiff’s case, the trial court struck Dr. Barnhart’s testimony regarding whether the nurse deviated from the standard of care because Dr. Barnhart was not competent to render expert opinion testimony against a nurse as he was not licensed in the same school of medicine as the nurse. The trial court then granted the hospital’s motion for a directed verdict.
The Illinois Supreme Court upheld the trial court’s ruling that Dr. Barnhart was incompetent to testify as to the nursing standard of care. In doing so, it reaffirmed the requirement that in order for a health care expert to testify as to the standard of care, the proposed expert must be licensed in the same school of medicine as that to which they are testifying. Second, the expert must be familiar with the “methods, procedures, and treatments ordinarily observed by other health care providers in either defendant’s community or a similar community.” (citing Jones v. O’Young, 154 Ill. 2d 39 (1992)). Once those two foundation elements are established, the trial court is to determine whether the allegations of the complaint relate to matters which are within the proposed expert’s knowledge and observation.
The Sullivan court reasoned that because Dr. Barnhart never graduated from nursing school and was not a licensed registered nurse, he failed to satisfy the same school of medicine required element of a proposed expert. Therefore, as a physician, Dr. Barnhart was unable to testify regarding the standard of care applicable to a nurse.
However, in reaching its holding, the Illinois Supreme Court declined to overrule Wingo v. Rockford Memorial Hospital, in which the Second District Appellate Court permitted three physician experts to testify that a nurse deviated from the standard of care by failing to properly communicate the patient’s condition to the defendant doctor. In distinguishing Wingo, the Supreme Court in Sullivan rationalized that the trial court struck a portion of Dr. Barnhart’s anticipated testimony regarding a nurse’s communication with the defendant physician as a discovery sanction. Therefore, the factual scenario Wingo presented did not exist in Sullivan.
Because the Sullivan Court did not overrule Wingo, it left open the possibility that a physician may be permitted to testify as to what he or she is entitled to rely on regarding communications between a nurse and a physician.
Sullivan will have a lasting impact on medical malpractice cases. No longer can a defendant physician testify as to the standard of care applicable to a nurse, no matter how familiar they may be with the nurse’s job duties or responsibilities. However, the doctor may be in a position to testify as to what they expect a nurse will communicate regarding the condition of a patient. From a defense perspective, we anticipate seeing more trial objections, motions in limine on the subject, more objections at depositions and overall, more motion practice in which plaintiff’s attorneys seek to limit or outright bar physicians’ testimony based on the "same school of medicine" test. A few points bear special note:
• Physician defendants may consider retaining a nursing expert to testify about the standard of care of an involved nurse to establish a nurse’s responsibility for an adverse outcome.
• A physician defendant needs to be alert to a hospital settlement after the expert disclosure deadlines. If the physician’s strategy includes evidence of nursing responsibility, the doctor must be prepared to formally adopt the plaintiff’s nursing experts in order to prove hospital responsibility.
• Hospital defendants no longer have the luxury of engaging physician experts to testify about nursing care. Cases need to be reviewed to make sure competent nursing expert testimony is available and admissible to defend large hospital exposures. Hospital defendants need to be alert to physician defendants who attempt to transfer liability to them using inappropriate physician testimony.
• From the perspective of both doctors and hospital, the defense needs to take steps to assure unified defenses where possible when both the physician and the hospital are sued. Experience teaches that a unified defense maximizes the potential for defense verdicts and settlements. ¨