Physicians are sometimes called upon to evaluate the conduct of a nurse or a nurse practitioner and whether such conduct comports with the standard of care. Whether the physician will be permitted to offer an opinion in this regard, varies by state and by the context of the situation involved in the case.
Courts are very much split on this issue, but a very slight majority will hold that yes, a physician can testify as to the standard of care for a nurse and a nurse practitioner in a medical malpractice claim.
Prior to 2000, physician’s expert testimony regarding a nursing standard of care was rarely ever disputed and almost wholly admitted even amidst challenges.[1] The narrative began to shift in the early 2000s, under a growing realization that the status and specialties of nursing has changed, and more often do physicians not have knowledge of the specialized standard of care in regards to nursing malpractice cases.[2] In response to this specialization, groups such as the American Association of Nurse Attorneys (“AANA”) have often argued in briefs that a physician is no more qualified to testify as to the standard of care of a nurse as a nurse is qualified to testify in that regard to a physician, reasoning that mere oversight and supervision does not amount to adequate familiarity with that field of practice.[3] Few jurisdictions yet have assessed the difference between a nurse and nurse practitioner for this purpose, but given the general movement in courts to consider the specialty of nursing, judges could possibly be more reluctant to permit physician testimony as to a nurse practitioner even more so than a nurse.[4] This, however, is a growing trend that still has not gathered complete endorsement from all states – many have rejected the challenges or such physician’s testimony never went challenged by the opposing party.[5]
The states that do permit physicians to testify as to the standard of care generally require the physician to demonstrate that the physician have skill, knowledge, experience, and familiarity with the nursing standard of care.[6] For example, in Dishmon v. Fucci, the Supreme Court of Delaware held that a physician may testify as to the standard of care required of a nurse or nurse practitioner as long as they can establish their familiarity with the degree of skill customarily employed by a nurse in that type which they will be testifying about.[7] Similarly, in Staccato v. Valley Hospital, the Nevada Supreme Court admitted expert testimony from an emergency room physician regarding the standard of care of a nurse in administering certain injections.[8]
The states that do not permit a physician to testify as to the standard of care of a nurse or nurse practitioner often reason the distinctness of the two professions with separate standards of care.[9] The flagship case from this camp is Sullivan v. Edward Hospital, in which the Illinois Supreme Court in 2004 held that in regards to expert testimony, nurses and physicians were from different “schools,” and that a healthcare practitioner’s conduct should only be judged by someone of the same schools of medicine.[10] These courts often fear that a physician would incorrectly apply a higher standard of care or not have sufficient familiarity with another school of medicine or practice to offer an opinion.[11] Jurisdictions that have followed this reasoning include Arkansas, North Carolina, New York, whereas jurisdictions such as Massachusetts, Connecticut, and many others have yet to expressly address this issue.[12]
Ultimately, if a physician wished to testify as to the standard of care of a nurse or nurse practitioner, they should (1) consult with their jurisdiction’s rules of evidence regarding medical experts, (2) assess their familiarity with the standard of care of nursing, and (3) be prepared to establish their skill, knowledge, and experience in that nursing field (may require certain license holdings).
About the Author
Kelly J. Wilbur, Esq., is a Trainer and Consultant for SEAK, Inc – The Expert Witness Training Company. She was an insurance defense and commercial litigator for five years prior to joining SEAK. Kelly received her J.D., cum laude, from the University of Massachusetts School of Law in 2015 and graduated from St. Mary’s College of Maryland with a B.A. in Political Science. While at St. Mary’s, Kelly was a member of the nationally ranked varsity sailing team and was a two-time All-American. Kelly has experience preparing experts for deposition and trial testimony. Phone: 617-791-6802 Email: kelly@seak.com www.seak.com www.seakexperts.com
[1] See Wingo by Wingo v. Rockford Memorial Hospital, 686 N.E.2d 722, 729 (Ill. App. Ct. 1997) (“Additionally, we note that, from our review of the out-of-state authority, we are unaware of any state that has ever found it reversible error for a physician to testify as to the applicable nursing standard of care”).
[2] See Gene Blumenreich, Expert Testimony, AANA Journal, June 2004, Vol. 72, No. 3, at 173, https://www.aana.com/docs/default-source/aana-journal-web-documents-1/173-177.pdf?sfvrsn=61e455b1_8#:~:text=A%20physician%20who%20is%20not,physician%20based%20on%20their%20observances
[3] See id. at 174.
[4] See id. (inferring that a nurse practitioner holds a higher degree/expertise than a nurse, respectively, thus even more distinguishing schools of medicine from physicians)
[5] See Tsvetelina Gerova-Wilson, Nursing is Not a Lesser Included Profession: Why Physicians Should Not Be Allowed to Establish the Nursing Standard of Care, 16 Quinnipiac Health L.J. 43, 57–60 (2013)
[6] See Beilenson v. Jefferson Parish Hosp. Serv. Dist. No.2, 891 So.2d 74, 82–83 (La. Ct. App. 2004) (detailing the numerous cases in which Louisiana has used testimony of a physician to establish the standard of care required of a nurse or nurse practitioner).
[7] See Dishmon v. Fucci, 32 A.3d 338, 343 (Del. 2011) (noting the State’s longtime history of allowing physicians to offer expert opinions on the standard of care in regards to non-physicians, including nurses and nurse practitioners).
[8] See Staccato v. Valley Hosp., 170 P.3d 503, 504–07 (Nev. 2007) (determining that the appropriate standard of expert admissibility is whether the subject matter is related to a profession beyond the average person’s knowledge and the expert has sufficient skill, knowledge, or experience in the issue).
[9] See Brumenreich, supra note 2, at 174 (detailing the amicus curiae brief filed by the American Association of Nurse Attorneys that aimed to argue the separateness of the nursing and physician practices).
[10] See Sullivan v. Edward Hosp., 806 N.E.2d 645, 648–50 (Ill. 2004) (holding that a physician could not testify as to whether a nurse violated their standard of care by failing to sufficiently communicate a patient’s condition to a supervising physician).
[11] See id. at 654 (detailing that Illinois statutes require the differentiating schools of medicine, namely between fields like medicine and surgery versus nursing).
[12] See Tsvetelina Gerova-Wilson, supra, note 5, at 56–60.