Why doctors should not be testifying to nursing standards of care

Nurses are the right people to testify about nursing standards of care, right? It was not always so self-evident. We can thank the Sullivan case for reinforcing the validity of this approach.

The Illinois case called Sullivan V. Edward Hospital, 806 NE 645 (Ill. 2004) involved a man who climbed over side rails and was found on the floor with a head injury. The plaintiff attorney supplied a physician as the liability expert. He was critical of the nursing care by stating the nurse should have restrained the patient. He also testified the nurse “missed the diagnosis of delirium completely.”

Physician testified about nursing standards of care

When I became an expert witness in 1987, the tide was turning against physicians who testified about nursing standards of care.

Until the early 1980s, it was commonplace for physicians to testify about the nursing standard of care. The status of nursing has changed.

Not only do physicians no longer have the special knowledge required to testify in all cases of nursing malpractice, but their use as experts may create problems that could be avoided by using nurses as experts in nursing malpractice cases.

Nursing and medicine are two distinct professions albeit with some overlapping functions.

The plaintiff won the Sullivan case; the defense appealed. The Sullivan case was appealed to the Illinois Supreme Court. The Illinois Trial Lawyers supported the position of the plaintiff, and the American Association of Nurse Attorneys also submitted an amicus curiae brief in support of the dense. The Illinois Supreme Court held the plaintiff’s physician expert was not competent to testify about the standard of care of a nurse.

In many venues, affidavits of merit and expert witness reports should be prepared by a person in the same specialty as the defendant. An affidavit signed by a physician who is critical of a nurse could be challenged on the grounds that the physician is not in the same specialty.

Even though nurses and physicians closely interact with each other, and have a few areas of overlapping responsibilities, they function in two distinct specialties. Woe be it to the nursing expert who utters anything in a deposition or trial that sounds critical of a doctor. The predictable flow of questions follows:

Q: Nurse, you did not go to medical school, right? You did not complete a residency in (name of specialty), right?

Legal nurse consultants may assist an attorney develop questions to challenge the qualifications of a physician who is offered as a liability expert witness in a nursing malpractice case:

• Are you eligible to sit for the nursing exam?
• Are you are a member of any nursing professional association?
• Have you ever worked as a nurse?
• Do you have any firsthand knowledge of nursing practice other than for observations made in patient care settings?
• Do you teach in a school of nursing?
• Do you hold any nursing certification?
• Have you written any nursing texts?

A series of “no” answers helps to establish that the archaic practice of allowing physicians to testify about nursing standards of care should be laid to rest.

Part of this post was based on Butler, K. Nursing: Qualifications for Testifying on Standard of Care, Journal of Legal Nurse Consulting