Last Thursday the Mississippi Supreme Court decided Vaughn v. Mississippi Baptist Medical Center. The opinion dealt with the deceptively simple sounding question of whether a nurse can give an opinion on "medical causation." The Court ruled:
We now explicitly hold that nurses cannot testify as to medical causation.
Sounds pretty simple. But what exactly is "medical causation"? The Court did not define the term. I searched in Lexis' all-states and all-feds data base for cases containing the term "medical causation." There were only 183 cases containing the term. After reviewing some of those cases, it looks like that when courts use the term "medical causation," what they mean is proximate cause in a case that requires expert medical testimony on the issue of causation. I also think that is what the Court means in Vaughn, but the opinion is not clear on this point and I fear that lawyers will now be arguing at the trial court level as to what exactly Vaughn means.
Does the decision mean that anytime a plaintiff needs a nurse expert on the issue of a breach in the standard of care that a doctor's opinion is also required on the issue of causation? I believe that the answer to this question is no, but defendants will argue for this interpretation in the trial court in cases where plaintiffs have a nurse expert but not a doctor.
An example of what I am talking about is in Krenek v. St. Anthony Hospital, 217 P.3d 149 (Okla. App. 2008). The case was a medical negligence case against a hospital where the 89-year old plaintiff was left unattended in a shower and fell, breaking several ribs. The plaintiff's only expert was a nurse and the hospital moved for summary judgment arguing that the plaintiff needed a doctor to opine on medical causation. In rejecting the hospital's argument and reversing the trial court the court stated:
Here, Plaintiff presented sufficient evidence leading to the reasonable inference that Hospital's negligent failure to secure and supervise Ulicky while he sat on a wheeled chair in a shower facility contributed to Ulicky's fall and resulting injuries. This origin of Ulicky's obvious injuries does not require a degree of knowledge or skill not possessed by an average person; instead, it is readily apparent to a layperson. Thus, expert medical testimony was not necessary to assist a fact-finder in determining whether Hospital's negligence caused or contributed to some of Ulicky's injuries.
I assume that the Mississippi Supreme Court or Court of Appeals would reach the same decision in a similar case where the injuries were obvious to a layman, but liability is disputed and hinges on the nursing standard of care.
In addition, Vaughn did not overrule Richardson v. Methodist Hospital of Hattiesburg, 807 So. 2d 1244 (Miss. 2002), in which the Court allowed the same nurse expert as in Vaughn to opine about proximate cause of the victim's pain and suffering, but not the cause of death. Richardson appears to still be good law under the right set of facts.
Justice Kitchens wrote a dissent joined by Justice Graves. The dissent made a logical argument against the hard and fast rule adopted by the majority:
It likely is true that some nurses may not possess the requisite expertise to recognize the cause-and-effect relationship between conditions in a patient’s environment, or particular kinds of harm that a patient may have experienced, and resulting diseases or maladies that occur in consequence of those conditions or events. However, the issue of whether a particular nurse, by virtue of his or her knowledge, skill, experience, training or education, possesses such ability is better determined by a case-by-case inquiry than by a broad, “one-size-fits-all” judicial pontification to the effect that no nurse in the world will ever be allowed to testify as to medical causation in any Mississippi court case. As is true of any other profession, the education, experience and understanding of nurses span a broad spectrum. We should not enunciate a hard and fast rule that permanently forecloses the possibility of any nurse’s being qualified to give expert testimony on medical causation in any and all cases that may arise in the future.
The majority reached its decision without even making a Daubert analysis of whether the expert's opinions satisfied Daubert criteria. If it had, the Court would have reached the same result with a more narrow decision.
Although I have no problem with the Court's decision that the nurse in Vaughn should not have been allowed to testify on causation in that case, I am not a big fan of the Court's opinion. I do not think that Courts should use the term "medical causation" when what they are talking about is "proximate cause" in a case that requires expert medical testimony. I also agree with the dissent's one size fits all criticism.
It seems to me that a better approach would be a Daubert analysis of whether the expert's opinions are reliable applying the Daubert factors. This should be the road map for trial courts to use in deciding whether to allow any expert to testify. Daubert and its progeny are about a system for analyzing whether an expert can testify in a particular case. The trial court must act as a gatekeeper and apply the Daubert analysis in every case to determine whether a particular expert should testify. Appellate courts can then review whether the trial court properly applied Daubert. The Supreme Court did something else in Vaughn, holding that no nurse can ever testify about "medical causation" before reaching a Daubert analysis.
litigation. Unfortunately, Lawyers' Poker by Steven Lubet is not a book that I can recommend on this subject.
