Blurred Lines: When Can a Physician Testify Against a Nurse?

Transcription

1 Blurred Lines: When Can a Physician Testify Against a Nurse? by Matthew Howeth & Peter Nozicka I. Introduction Studies reveal that juries, on average, award higher damages against hospitals than against individual physicians, even for comparable injuries. 1 Medical malpractice claims frequently arise from failed or missed communications between medical professionals, specifically nurses and physicians. 2 Hospitals often employ nurses, but rarely employ their physician counterparts. Thus, medical malpractice litigation regularly involves nurse and physician co-defendants opposing not only plaintiffs, but their medical counterparts as well. As such, eliciting testimony from defendant physicians and opinions from expert physicians on nursing conduct and standards serves as a valuable tool to break the inevitable unified defense, and to implicate the hospital and its generally larger insurance policy. In 2004, the Illinois Supreme Court decided Sullivan v. Edward Hospital, holding only licensed nurses may testify to nursing procedures. 3 The Sullivan court, however, explicitly retained the Wingo exception. 4 The Wingo exception permits expert physician testimony as to standards of care that govern communications between nurses and physicians. 5 The tension the Sullivan decision created with the Wingo exception has produced inconsistent results at both the trial and appellate levels. This article explores that tension, the affected appellate decisions, and illustrates common defense arguments and practice tips. II. Background: Wingo and Sullivan Illinois courts demand licensed medical experts establish the standard of care in medical malpractice cases. 6 Initially, medical expert witnesses must meet two foundational requirements: (1) the expert must be a licensed member of the school of medicine about which she opines (the licensing requirement ); and (2) she must be familiar with the methods, procedures, and treatments normally performed in the defendant s professional community. 7 Thereafter, the trial court determines the expert s competence to testify. 8 Thus, the licensing requirement bears on the admissibility of the testimony, not merely on that testimony s weight. In 1997, the Second District Appellate Court created an exception to the licensing requirement. Wingo ex. rel. Wingo v. Rockford Memorial Hosp. concerned a newborn that suffered brain damage due partially to a failure in nurse-physician communications. At trial, the plaintiff presented three physicians to testify regarding applicable standards of care for the defendant nurse and her deviations therefrom. 9 Defendant hospital attempted to bar said testimony, contending that only licensed nurses may establish the standard of care for nursing practices. 10 However, the court disagreed and a large verdict was returned in favor of plaintiff. 11 On appeal, the court held that when the standard of care concerns communications between a nurse and a physician, a physician may testify as to the applicable nursing standard of care. 12 The court reasoned: (1) physicians would not impose unfairly high standards on nurses; and (2) physicians are familiar with nursing procedures regarding nurse-physician communications. 13 The aptly named Wingo exception allows physicians to establish whether a nurse-physician communication met the standard of care when the alleged negligence involves a misunderstood or missed communication from a nurse to a physician. Specifically, physicians may instruct the jury as to the required nursing disclosures and the required manner in which those disclosures must be communicated. Ultimately, it relieves the plaintiff of the licensing requirement. Similarly, Sullivan v. Edward Hospital involved a physician-nurse phone conversation. 14 At trial, plaintiff called a physician witness to testify that by failing to properly communicate the plaintiff s condition to the physician over the phone, the defendant nurse s conduct fell below the standard of care. 15 As to this specific opinion, the court granted the defendant hospital s motion to strike on Rule 213 grounds. 16 Plaintiff also attempted to elicit opinions from the expert physician regarding independent nursing procedures and methods. These opinions were also stricken, not on Rule 213 grounds but as a violation of the aforementioned licensing rule. 17 Ultimately, a directed verdict was granted in favor of the defendant hospital. 18 On appeal, the supreme court re-affirmed the licensing requirement, holding the trial court properly barred a non-nurse physician from opining as to nursing procedures and methods. 19 blurred lines continued on page Trial Journal Volume 17, Number 1 Winter 2015

2 blurred lines continued from page 26 While the Sullivan court reaffirmed the licensing requirement for testimony concerning nursing procedures, it specifically declined to discuss the requirement s application to nurse-physician communications. The court specifically declined the invitation to overrule Wingo, stating the appellate court did not discuss the merits of Wingo, and neither do we. Thus, following Sullivan, physicians remained incompetent to opine about nursing methods or procedures, but remained competent to opine about nurse-physician communications, creating a tension that ultimately led to inconsistent appellate court decisions. III. Current status: Garley, Petre, Petryshyn, and Smith The appellate court decisions following Sullivan splinter the analysis of exactly what criticisms a physician may levy against a nurse. The first district briefly held that Sullivan overruled Wingo, before ultimately reversing course; the fourth district created the Providing-Medical-Care- Continuum, properly expanding Wingo to scenarios involving nurse-physician teams; and the fifth district literally interpreted the licensing requirement in a case involving no physician-nurse communications. A. Garley: The First District Briefly Closes Wingo The first district briefly and erroneously interpreted Sullivan to overrule Wingo. Under this reading of Sullivan, only licensed nurses could establish the standard of care for other nurses, regardless of whether the standard at issue involved a nursing method, procedure, or required communication. In Garley v. Columbia LaGrange Memorial Hosp., the trial court instructed the jury on five theories of negligence established by plaintiff s three expert, non-nurse physicians, including the nurse s failure to notify her physicians of plaintiff s complaints of pain, the nurse s failure to notify her physicians of plaintiff s lack of ambulation, and failure to suggest the use of anticlotting devices during surgery. 20 The jury returned a verdict against both the hospital and the defendant doctor, which the defendant hospital appealed. The court found reversible error in allowing the three non-nurse physicians to establish the nursing standard of care, even for communication failures. 21 According to the Garley court, only a nurse can establish the nursing standard of care, regardless of the nature of that standard: It is undisputed that, in this case, plaintiff s experts were wellqualified physicians, whose professional experience and accomplishments were beyond reproach. Equally undisputed, however, is that none of plaintiff s experts were licensed in the school of nursing. 22 Effectively, the first district rendered the Wingo exception meritless. By ignoring Sullivan s text concerning the continued validity of the Wingo exception, the court held the licensing requirement to be an exception-less foundational precursor for expert testimony on nursing standards of Video Depositions Video Conferencing Video Impeachment Courtroom Video Displays Trial Exhibit Presentation We provide the tools that help make your case. Video Instanter Incorporated Steven Grant, President 134 North LaSalle Street, Suite 1400 Chicago, Illinois (312) Trial Journal Volume 17, Number 1 Winter 2015

3 care. 23 Thus, the first district closed the Wingo exception in 2004 and did not reverse course until B. Petre: The First District Re-opens Wingo In 2007, the first district revisited the tension between Sullivan and Wingo. Petre v. Cardiovascular Consultants, S.C., pitted a treating doctor against his own nursing personnel. Petre involved the failure to communicate a positive culture result, ultimately necessitating removal of the plaintiff s sternum. 24 The plaintiff s treating doctor, who was also a named defendant, testified about the alleged miscommunication, stating if my office knew and didn t tell someone, then yeah, there s a breach of the standard of care. 25 Based on this testimony, the jury returned a not guilty verdict against the treating doctor, but found his practice (via his nurses) guilty. 26 After noting the allegations in Petre involved nursing communications rather than nursing procedures, the first district squarely disagreed with the rigid, bright-line approach employed in Garley. To the extent that Justice Quinn s opinion in Garley holds that Sullivan overruled Wingo, we disagree. 27 We therefore disagree with Justice Quinn s opinion in Garley [ ] and find Wingo to remain appropriate precedent for this court to follow. 28 After relieving the plaintiff from satisfying the licensing requirement prong of the foundational test, the court shifted its analysis to the second prong: the doctor s familiarity with treatment standards. The court found the treating doctor s one line admission on cross-examination failed to meet the second prong as it never established his familiarity with the methods, procedures, and treatments ordinarily observed by other staff or employees of a medical practice like [defendant s practice.] 29 Implicitly, no foundational testimony existed as to the treating doctor s familiarity with what nurses communicated, or should have communicated to him under similar conditions. 30 Moreover, outside of the treating doctor s testimony, no testimony existed as to the applicable nursing standard of care. Thus, with no competent testimony concerning the applicable nursing standard of care, the jury s verdict was against the manifest weight of the evidence. 31 Petre serves to illuminate the necessity of meeting the second foundational requirement, even when Wingo excuses the first. C. Petryshyn: One End of Providing- Medical-Care-Continuum In 2008, the fourth district was also faced with a challenge to the licensing requirement for testimony concerning communications between medical professionals. Petryshyn v. Slotky involved communication and conduct standards of members of a surgical team. The plaintiff filed suit against an obstetrician and hospital after discovering that a section of intrauterine pressure catheter remained inside of her body after surgery. 32 After settling with the defendant blurred lines continued on page 30 Structured Settlement From the plaintiff s point of view, the details of their structure go beyond the settlement figures. Numbers, disbursements and payout schedules are all tangible considerations. And they re important. But we see structured settlements through the lens of the intangibles: lifestyles, milestones and personal events. We're different than any other plaintiff-only structured settlement expert. Call us today and let your clients experience the difference. Volume 17, Number 1 Winter 2015 Trial Journal 29

4 blurred lines continued from page 29 hospital, the defendant physician adopted deposition testimony from plaintiff s expert physicians critical of the newly dismissed hospital. 33 The plaintiff vehemently objected, arguing her expert could not offer opinions as to nursing standards of care. 34 The trial court, however, overruled the plaintiff s objections, finding her expert s opinions integrally related to functions of the surgical unit (two nurses and the defendant doctor). 35 Ultimately, the physician expert opined that the defendant hospital nurses violated the standard of care by failing to inspect the intrauterine pressure catheter (IUPC) to ensure its integrity before discarding it. Furthermore, the expert asserted that, if the nurses had seen that the IUPC was not intact, it would have been within their standard of care to communicate their inspection results to [the defendant doctor]. 36 During closing arguments, counsel for defendant doctor argued this testimony to the jury as the basis of an empty chair defense, resulting in a not guilty verdict for the defendant doctor. 37 After trial, the court granted the plaintiff s motion for judgment notwithstanding the verdict, basing its decision on the Garley precedent. 38 On appeal, the fourth district reversed, framing the pivotal analytical issue as the nature of the interaction between a physician and a nurse as they provide medical care for the same patient. 39 The court laid out the Providing-Medical-Care- Continuum, astutely identifying Wingo as its fulcrum because a nurse s failure to communicate negatively impacts the physician s ability to perform but does not substantially contemporaneously intertwine the nurse and physician. 40 Moving beyond Wingo, the court placed the subject case on the extreme end of the continuum, holding the non-nurse physician competent to testify: (1) a surgical team physician relies on nurse communications regarding the patient s care; and (2) failure to communicate information about the patient is a violation of the nurse s standard of care. 41 Thus, Petryshyn allows physicians to testify against nurses when they care for a patient in tandem. D. Smith: The Other End of the Continuum In Smith v. Pavlovich, the plaintiff sued an advanced practice nurse and two physicians after her daughter allegedly died from bacterial meningitis. The trial court barred the plaintiff s expert pediatrician from opining as to advanced practice nursing standards of care, resulting in a directed verdict for the advanced practice nurse. 42 The fifth district held the pediatrician incompetent to testify to advanced practice nursing standards because he lacked an advanced practice nursing license. 43 Notably, the decision does not address Wingo, Petre, Petryshyn, or any criticisms of the communications between the defendant physicians and the defendant advanced practice nurse. Instead, the court rejected the plaintiff s argument that the advanced practice nurse essentially acted as a physician with respect to her daughter blurred lines continued on page 32 An experienced and compassionate guardianship team When seeking a corporate fiduciary to act as guardian or conservator, you look for the experience, expertise and sensitivity required to fulfill the complex fiduciary duties involved in guardianship administration. Northern Trust s guardianship team includes licensed attorneys and experienced associates who support them. We stand ready to work closely with families and their advisors to help navigate the complexities of guardianship administration and facilitate the building of a secure future for the entire family. Our guardianship team specializes in handling complex settlement agreements, sensitive family situations and intricate property matters. We endeavor to provide individualized, prudent financial management supported by our expert colleagues in the areas of investments, tax, real estate, family business and insurance. You can count on us to help successfully manage the inherent complexities of guardianship administration. Kristin Weaver Manager, Guardianship Administration Phone: kwm1@ntrs.com Proud to be a member of ITLA 30 Trial Journal Volume 17, Number 1 Winter 2015

5 blurred lines continued from page 30 and that therefore a medical doctor specializing in pediatrics was qualified to testify regarding the standard of care [ ] 44 Thus, Smith fails to distinguish Wingo, Petre, or Petryshyn, and simply illustrates a basic application of the licensing requirement. IV. Application: Common Defense Arguments and Practice Tips Admitting physician testimony regarding nursing standards of care remains a matter of judicial discretion. As such, maximizing the odds of its admission requires cognizant planning and execution at all stages of litigation. Moreover, plaintiffs must be ready to respond to common defense objections and motions in limine. Nothing in this section should be read or used as replacement for licensed nursing expert testimony by the plaintiff to establish any and all nursing standards of care. Rather, it should be read as advice to provide additional testimony and criticisms against defendant nurses. As a general matter, plaintiffs should first realistically assess the facts to determine the likelihood of turning the defendant physician and physician experts against any defendant hospital nurses. The Petryshyn Providing-Medical-Care- Continuum guides this analysis. As the amount of contemporaneous intertwining increases, so too does the likelihood of plaintiff s ability to use physician testimony against nursing defendants. At one end of the spectrum, if defendants provided care contemporaneously as a team (e.g. a surgical team, such as the defendants in Petryshyn,) plaintiff should pursue breaking any unified defense by using the defendant and physician experts against any defendant nurses. On the other hand, if the defendant nurses provided separate, distinct care exclusively using nursing procedures and methods, plaintiffs absolutely cannot (not that plaintiffs ever should) rely on physician testimony to establish nursing standards of care. Smith illustrates this reality. Some middle ground exists where the facts involve any nurse-physician communication failures that negatively impacted the physician s treatment abilities. In this case, plaintiff should pursue testimony How can YOU GET INVOLVED in ITLA? Take advantage of the many membership benefi ts included with your ITLA membership. - FOLLOW ITLA ON FACEBOOK AND TWITTER - You asked us to engage in social media, and we have. In addition to ITLA news, we post news and stories that affect your practice. Follow us on social media so you can share this information with your friends and clients. Follow ITLA on Facebook and Twitter from physicians on nursing standards of care regarding those communications. During discovery, plaintiffs should seek deposition testimony from defendant doctors implicating their co-defendant nurses. As previous ITLA articles have discussed, unified defenses greatly frustrate this effort. 45 During defendant and expert physician depositions, expect many objections (of the speaking variety) raising Sullivan, moving to strike testimony pursuant to Sullivan, and otherwise coaching the physician witness away from implicating co-defendant nurses. Despite these objections, establish foundational facts about specific communications the physician expects to receive from her nursing counterparts, as well as how and to what extent the physician expert might rely on those communications. Moreover, to properly posture for successful motion practice at trial, establish foundational facts concerning the physician s familiarity with the methods, procedures, and treatments ordinarily observed by other staff or employees of a similar medical practice. Also, use requests to admit to establish the failure of these expected and relied upon communications. 46 At trial, if both co-defendants remain, prepare to face motions in limine seeking an order barring physician testimony on nursing standards of care. Some defendants broadly cite Sullivan, claiming the licensing requirement as an absolute precursor for any physician testimony criticizing nurses, regardless of the nature of that testimony. 47 This argument ignores Wingo, Petre, and Petryshyn, and, likely, the context and allegations of plaintiff s theory of liability (assuming allegations based on nursing communication failure.) Other defendants attempt to eviscerate the Wingo exception by noting it occurred before Sullivan and citing Garley. 48 Moreover, defendants cite Sullivan s affirmation of the licensing requirement as an unequivocal, unambiguous mandate from the supreme court, taking precedence over any subsequent 32 Trial Journal Volume 17, Number 1 Winter 2015

6 appellate cases. 49 Defendants, however, may not ignore Wingo, Petre, and Petryshyn when physician testimony concerns communication failures, especially those cases interpreting Sullivan. Prior to trial, prepare a trial brief outlining: plaintiff s allegations concerning physician-nurse communication failures; plaintiff s properly disclosed opinions on these communication failures; all physician testimony concerning these failures; foundational testimony on each physician s familiarity with the subject communication requirements; and a summary of Sullivan, Wingo, Garley, Petre, Petryshyn, and Smith. 50 Such a brief is plaintiff s best tool for admission of physician testimony against nursing defendants at trial. V. Conclusion Nurse-physician communications often form the crux of a medical malpractice claim. To that end, plaintiff s attorneys must have a concrete knowledge of the nuanced applications of Sullivan, the Wingo exception, and the various applications of each. Above all else, attorneys must steadfastly pursue testimony from both physicians and nurses regarding alleged communications and vehemently contest defendant applications of Sullivan. Despite the lack of statewide stability surrounding nursephysician communications, a favorable application of the Wingo exception can and will bring plaintiffs closer to a favorable verdict. Endnotes 1 David A. Hyman, et al., Do Defendants Pay What Juries Award? Post-Verdict Haircuts in Texas Medical Malpractice Cases, , 4 J. EMPERICAL LEGAL STUDY 3, 27 (2007) (damage awards, adjusted verdicts, and actual payouts significantly higher against single hospital defendant or when hospital involved); Neil Vidmar, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 DUKE L. J. 217, 243 (1993) (147 jury members awarded higher damages against hospital than doctors in hypothetical cases involving broken femur); see also, Emily Chase- Sosnoff, The Nursing Standard of Care in Illinois: Rethinking the Wingo Exception in the Wake of Sullivan v. Edward Hospital, 88 CHI.-KENT L. REV. 245, (2012) (discussing jury tendencies and studies). 2 See, e.g., Garley v. Columbia LaGrange Memorial Hospital, 351 Ill. App. 3d 398, (1st Dist. 2004) (alleging nurses failure to notify physicians of decedent s complaints of pain, failure to notify physicians of lack of ambulation, and failure to suggest use of anticlotting devices caused death). 3 Sullivan v. Edward Hosp., 209 Ill.2d 100, 120 (2004). 4 ( the appellate court did not discuss the merits of Wingo, and neither do we. ). 5 Wingo ex. rel. Wingo v. Rockford Memorial Hosp., 292 Ill. App. 3d 896, 907 (2d Dist. 1997). 6 Purtill v. Hess, 111 Ill.2d 229, 242 (1986). 7 8 Alm v. Loyola Univ. Med. Ctr., 373 Ill. App. 3d 1, 5 (1st Dist. 2007). 9 Wingo, 292 Ill. App. 3d at at at Sullivan v. Edward Hosp., 209 Ill.2d 100, (2004). 15 at at at at Garley, 351 Ill. App. 3d at at at at Petre v. Cardiovascular Consultants, 373 Ill. App. 3d 929, 930 (1st Dist. 2007). 25 at at at at at at Petryshyn v. Slotky, 387 Ill. App. 3d 1112, 1112 (4d Dist. 2008). 33 at at at at at at at at Smith v. Pavlovich, 394 Ill. App. 3d 458, (5 th Dist. 2009). 43 at For more information on Unified Defenses see Joseph W. Balesteri, Behind The Unifi ed Defense, ITLA Medical Malpractice Seminar, December 8, For an example of such Requests, see Balesteri, supra, note For an example of this argument, see Hospital Defendant s Motion in limine #09, Hernandez-Jovel v. Northwest Comm. Hosp., et al., Circuit Court of Cook County, 07 L For an example of this argument, see Certified Nurse Midwife Defendant s Motion in limine #44, Hernandez-Jovel v. Northwest Comm. Hosp., et al., Circuit Court of Cook County, 07 L For an example, see Plaintiff s Trial Brief No. 3, Hernandez-Jovel v. Northwest Comm. Hosp., et al., Circuit Court of Cook County, 07 L Matthew F. Howeth is an associate trial attorney for Curcio Law Offi ces in Chicago, Illinois. Matthew is a graduate of Indiana University and The John Marshall Law School. Peter Nozicka is an Associate at Lucas & Cardenas, P.C. Volume 17, Number 1 Winter 2015 Trial Journal 33