October 19, 2009

TO THE COMPANIES IN INTEREST:

Re: Freed v. Geisinger Medical Center, et al, 971 A.2d 1202 (Pa. 2009)
PENNSYLVANIA SUPREME COURT CASE INVOLVING A NURSE’S ABILITY TO TESTIFY AS AN EXPERT AT TRIAL REGARDING MEDICAL DIAGNOSES

A recent decision by the Pennsylvania Supreme Court likely has made it easier and less costly for plaintiffs to establish causation in personal injury litigation. In Freed v. Geisinger Medical Center, et. al, the Supreme Court held that nurses are permitted to offer expert medical opinions with regard to causation and diagnoses, unless otherwise prohibited by the MCARE Act. However, the Pennsylvania Supreme Court has granted re-argument, to be heard during the December 2009 session in Harrisburg. Accordingly, the Supreme Court’s decision, to be discussed below, has been withdrawn and is not currently the law; the Superior Court’s opinion is the law pending the outcome of re-argument.

In Freed, plaintiff developed bedsores during his stays at Geisinger Medical Center and HealthSouth Rehabilitation Center after being paralyzed in a motor vehicle accident. The bedsores eventually required surgery, and the plaintiff sued the medical centers on a theory of negligence, claiming that the nursing staffs at the institutions failed to meet the standard of care for preventing and treating pressure wounds, or bedsores. At trial, the plaintiff introduced a nurse as a witness to testify regarding the appropriate standard of nursing care, as well as to the cause of plaintiff’s bedsores. Defense counsel objected on the grounds that a nurse is not qualified to give opinions regarding medical diagnoses, and the trial court sustained the objection. Without any testimony regarding causation, the plaintiff could not establish his case, and the trial court granted a defense motion for non-suit.

Plaintiff appealed, claiming that the nurse was qualified to testify regarding the cause of plaintiff’s wounds. The Superior Court reversed the trial court’s grant of non-suit, and held that the nurse was competent to testify on both the standard of nursing care and causation. Defendants appealed the Superior Court’s decision, arguing that it was in contravention of a 1997 Supreme Court decision, Flanagan v. Labe, which stated that a nurse was not competent to testify regarding medical diagnoses. The Supreme Court agreed with Defendant medical centers that the Superior Court’s decision was in conflict with Flanagan, but overturned Flanagan to the extent that it prevented “an otherwise competent and qualified nurse from giving expert opinion testimony in a court of law regarding medical causation.”

The Court reasoned that Flanagan improperly narrowed the definition of “expert”, who other cases and the Pennsylvania Rules of Evidence define as a witness who possessed “more expertise than is within the ordinary range of training, knowledge, intelligence or experience.”

The Flanagan Court had decided that nurses were not qualified to testify as an expert based upon the language of the Professional Nursing Law, 63 P.S. § 212, which law permits nurses to diagnose human responses to health problems, but prohibits them from providing “medical diagnoses.” The Flanagan Court did not explain why the Professional Nursing Law applied in court to restrict the liberal standard for admitting expert testimony. In fact, according to the Supreme Court in Freed, there was no language in the Nursing Law whatsoever that suggested that the principles contained in the Nursing Law had any implications or application in a court. Had the legislature wanted to ban nurses from testifying as experts, the Freed Court reasoned, it would have expressly prohibited it, as it did in the MCARE Act, which prohibits anyone except a licensed or recently retired doctor from rendering expert medical opinions in a medical malpractice case. The legislature did not include such an express prohibition in the Professional Nursing Law or the MCARE statute.

Finally, the Freed Court found that Flanagan produced an illogical result: a nurse who is qualified under Pa.R.E. 702 (regarding the qualifications of experts) and licensed under the Professional Nurse’s Law would be precluded from testifying regarding diagnoses and causation, while a nurse who is qualified under Rule 702, but not licensed, would be permitted to so testify. Accordingly, the Supreme Court affirmed the Superior Court’s decision to allow the nurse to testify in Freed, but on different grounds.

While this case involved a medical professional liability action, nothing in the court’s opinion or the reasoning behind it would appear to limit its applicability to only such actions. Rather, it is quite possible under the decision that we will now see nurses permitted to testify regarding medical diagnoses and causation in other personal injury cases, so long as they qualify under the existing, liberal expert witness standard. Nurses will be less expensive and easier to schedule than physicians, and thus may become a valuable tool for plaintiffs in light of this recent decision.*

Should you have any questions about the above, please do not hesitate to contact Beth Carter at (215) 665-3311, carter@bbs-law.com or Josh Steinberg at (215) 665-3335, steinberg@bbs-law.com.The Supreme Court recently granted re-argument on the issue, to be heard during the December Session in Harrisburg.

Very truly yours,

Beth A. Carter
Joshua Steinberg

*In his dissenting opinion, Justice Eakin opines that the fact that the Professional Nursing Law prohibits nurses from making a diagnosis in the field indicates that they are not competent to testify regarding the same issues in a court of law. Accordingly, he disagreed with the Supreme Court’s decision, and would have reversed the Superior Court’s ruling.

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