Pennsylvania Supreme Court Expands Nurses' Expert Testimony To Now Include Opinions on Causation

Pennsylvania - Medical Malpractice

Since 1997 the Pennsylvania Supreme Court has held that in the context of medical malpractice cases nurses were only qualified to render expert opinions regarding the nursing standard of care. Flanagan v. Labe, 547 Pa. 254, 690 A.2d. 183 (1997). In Flanagan the Court held that a nurse was not qualified to offer an opinion as to the cause of the plaintiff's injuries because an opinion regarding the specific cause and identity of an individual's medical condition constitutes a medical diagnosis, which a nurse is prohibited from making under the Professional Nursing Law, 63 P.S. §§ 211 et. seq.

While it is uncommon for the Supreme Court to reverse itself, the Court did exactly that in its recent decision in Freed v. Geisinger Medical Center, 971. A.2d 1202 (Pa. 2009). In Freed the plaintiff filed a complaint against Geisinger and Healthsouth, alleging that the nursing staff of both institutions failed to meet the nursing standard of care with regard to the treatment and prevention of pressure wounds on a paraplegic patient. At trial, the plaintiff presented as an expert witness a registered nurse to testify regarding the relevant nursing standard of care as well as to causation. During direct examination, when plaintiff's counsel asked the nurse for her opinion as to the cause of the plaintiff's bedsores, the defense objected, and the trial court sustained the objection on the basis that the nurse was not a medical doctor and, therefore, was not qualified to give a medical diagnosis. After the plaintiff presented his case, the defense moved for a compulsory nonsuit on the basis that the plaintiff failed to present a prima facie case of negligence by not offering competent evidence of a causal connection between the alleged breach of the nursing standard of care and the development or worsening of the plaintiff's pressure wounds. The trial court granted the defense's motion for nonsuit in accordance with the Supreme Court's holding in Flanagan.

The plaintiff subsequently appealed to the Superior Court, which reversed the trial court's grant of a nonsuit, holding that the nurse was competent to provide expert testimony on both the standard of care and the issue of causation. The defense thereafter appealed to the Supreme Court on the grounds that the Superior Court's holding was inconsistent with the Supreme Court's holding in Flanagan. On appeal, the Supreme Court affirmed the Superior Court's decision, overruling its holding in Flanagan.

In overruling its decision in Flanagan, the Supreme Court first noted that in order to qualify as an expert witness in a given field, a witness normally need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience, i.e., does the witness have any reasonable pretension to specialized knowledge on the subject under investigation. The Court emphasized that in Flanagan it did not provide any support for its conclusion that the restrictions contained in the Professional Nursing Law apply in a court of law, or more specifically, that a single provision of that law operates to limit the well established liberal standard for qualification of expert witness testimony that exists in this Commonwealth. The Court noted that the Professional Nursing Law refers to the "Practice of Professional Nursing," which is defined as diagnosing and treating human responses to actual or potential health problems. "Diagnosing" is defined under the Professional Nursing Law as the identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen.

The Court, therefore, reasoned that it is only in the context of the practice of nursing in which a nurse is precluded from making a medical diagnosis. Expert testimony offered in a court of law does not implicate a nursing regimen; there is no patient under treatment, no actual or potential health problems, no diagnosis or treatment, and no care is affected. Rather, the expert is offered merely to opine on past events or hypotheticals with respect to a case before the court. Finally, the Court noted that there is no language whatsoever in the Professional Nursing Law statute to suggest that the principles governing the actual practice of nursing are applicable in the distinct arena of malpractice or negligence actions, which is governed by the Rules of Evidence and the Rules of Civil Procedure.

The impact of the Supreme Court's holding in Freed remains to be seen, but practically speaking, it should make it easier for plaintiffs to meet their burden. Plaintiffs will no longer need a physician to address the issue of causation and damages when alleging negligence on the part of the nursing staff. It also remains to be seen how the Court will apply its new ruling given the inconsistency in its reasoning. The Court offers no explanation as to how a nurse who is prohibited by the Professional Nursing Law from making a medical diagnosis will be able to develop the specialized knowledge, intelligence, and training to qualify as an expert.

*Mark is an associate in our Bethlehem, Pennsylvania, office who can be reached at (484) 895-2302 or msroyster@mdwcg.com.

Defense Digest, Vol. 15, No. 4, December 2009