© 2009 The Medical-Legal News
• The nurses-testifying-to-medical-causation debate took a turn in Pennsylvania recently, with nurses winning in court in a Freed case, but they are probably shut out via a more recent state law aimed directly at keeping them from testifying.
The case was reported by The Legal Intelligencer on June 17.
According to the article, the Pennsylvania Supreme Court in 1994’s Miller v. Brass Rail Tavern case took a “liberal” approach to permitting non-doctors as expert medical witnesses. The case concerned a medical examiner and a patient’s time of death. The court in Miller said that a person need only “possess greater expertise than is within the ordinary range of training, knowledge, intelligence or experience” to qualify as an expert witness.
In 1997’s Flanagan v. Labe, the court tightened its liberal stance and said that the state’s Professional Nursing Law forbade nurses from testifying.
According to the article, in the most recent Freed v. Geisinger Medical Center and Healthsouth Corp. case from June, the court said the PNL only applied to “the practice of nursing,” not activities outside of nursing, such as testifying.
Thus, the supreme court went from being liberal, to tough and back to liberal with regard to permitting nurses to testify as medical expert witnesses.
The Freed court reasoned that if a completely non-medical person, or even an unlicensed nurse, could be admitted as an expert under Pennsylvania’s Rule 702, then to not allow a registered nurse would be “incongruous.” The Freed case was about bedsores, and the high court said nurses could testify to both procedures and causation.
However, Pennsylvania’s new MCARE Act from 2002 specifically bars anyone but a doctor from testifying against a doctor in liability cases, so Freed is a short-lived victory for nurses testifying in doctor-based negligence, according to the story. Ironically though, the act does not appear to prevent nurses from testifying in other professional liability suits, such as actions against non-doctor healthcare providers or criminal cases. •
Editor’s note: In the last issue I wrote a column that discussed the problems that can occur when a state seeks to statutorily be the “gatekeeper” for expert witnesses. The column basically concluded that the nuances of expert witness admission are complex and hard to codify. The column is on our web site. — R.C.