Doctors’ traditional witnessing domain may yield to Daubert
• The Gist: Several nursing profession and judicial factors may be coming together to more frequently allow causation testimony by nurses.
© 2008 The Medical-Legal News
By Dan Clifford, publisher
In a recent case, the Supreme Court of Oklahoma held that a nurse expert witness could testify as to what caused a patient to develop bedsores in a medical malpractice case. At first blush the case, Gaines v. Comanche County Medical Hospital, could be dismissed as a straw in the wind or easily debated, and indeed its holding was very narrow, but a number of factors come together in the case to erode the traditional view that medical causation testimony is only within the domain of physicians and can never be within that of nurses.
Introduction and factors favoring nurses on causation
The first sign of shifting sands in expert testimony that favors nurses comes from the U.S. Supreme Court’s Daubert case. While cases where nurses are allowed to speak to causation are few and far between, the science-based approach to witnessing urged by Daubert and the Federal Rules of Evidence is not violated in such cases, and may in fact give preference to nurses’ opinions over that of physicians’ in some instances on some topics. Acceptance — and more importantly, understanding — of Daubert is growing, along with Daubert’s requirement that courts apply “good science” to the admitting of testimony in place of older, more rigid and questionable, criteria. This bodes well for nurses. Second, the concept of who can testify is open to wide interpretation under Daubert, as overlap in professions or knowledge is sometimes needed in order to define whether an expert is similarly situated to the issue. Third, the traditional idea that doctors can speak to causation solely because they are trained in “differential diagnosis” is a fallacy in some fact patterns — namely where causative factors are external to the body. Fourth, testimony by physicians is not always as science-based or accurate as common acceptance might have it. Fifth, at least one case disallowing a nurse to speak to causation must be carefully re-read, and last, the profession of nursing is moving quickly away from its subservient “Florence Nightingale” roots and into a genuine evidence-based profession of its own as shown by the surge in evidence-based nursing practice, the nursing standards of care (which are based on research, experience and imply causality) and the federal government’s recognition of certain treatment areas as being within nurses’ domain…
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