What Do You Need to Prove Causation?

Allison H. Semaya recently posted on this topic in Expert Issues:

In the vast majority of jurisdictions, a plaintiff is required to offer expert testimony to establish the applicable standard of care and that the defendant’s alleged breach of that standard was the proximate cause of the plaintiff’s injuries. Although courts generally consider licensed physicians qualified to provide expert testimony regarding the proximate cause of a plaintiff’s alleged injuries, there is less of a consensus as to whether a nurse practitioner is equally as qualified. Recently, the Washington Supreme Court held that certain nurse practitioners may be qualified to testify as to whether medical conduct was the cause of the injuries in medical malpractice actions. See Rudy Frausto V. Yakima HMA, LLC, No. 93312-0 (Wash. Apr. 27, 2017) (en banc)

The Plaintiff, Rudy Frausto, a quadriplegic man, sustained pressure ulcers when the nurses at the medical facility where he was being treated for pneumonia allegedly failed to provide proper care. Id. at 2. Mr. Frausto filed suit against the medical provider, Yakima HMA LLC. Id. Defendant responded by moving for summary judgment, arguing that Plaintiff had failed to provide expert testimony as is required by statute when commencing a medical malpractice suit.  Id. In opposition, Plaintiff offered the sworn affidavit of Karen Wilkinson, an advanced registered nurse practitioner (“ARNP”) with more than 30 years of experience “providing direct patient care, serving as clinical nursing faculty for students providing care, and publishing nursing texts on the subject.” Id. Wilkinson stated that, in her professional medical opinion, the treating nurses breached applicable standards of care and that this breach proximately caused Plaintiff’s injuries. Id.

The trial court ruled that although Wilkinson was qualified as an expert with respect to the applicable standard of care, she was not qualified to testify as to the issue of proximate cause. Id. at 3. The appeals court reversed, finding that the expert testimony was allowed and adequate. Accordingly, the sole issue before the Supreme Court was whether ARNP’s are “per se disqualified from testifying on proximate cause in a medical negligence case.” Id.

Under Washington law, a plaintiff in a medical malpractice action is required to prove two key elements: “(1) that the defendant health care provider failed to exercise the standard of care of a reasonably prudent health care provider in that same profession and (2) that such failure was a proximate cause of the plaintiffs injuries.” Id. (citing RCW 7.70.040). In Washington, expert testimony is required to establish causation in all circumstances except where technical medical expertise is not necessary to assess the cause of the alleged injury. See id. (citing Young v. Key Pharm., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989)(for example, no expert is required in the case of “amputating the wrong limb or poking a patient in the eye while stitching a wound on the face”)). Washington Rules of Evidence Rule 702 (“ER 702”) states that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

In Frausto, the Court observed that a majority of jurisdictions permit testimony from nurses regarding causation in medical malpractice cases. The Court rejected Defendant’s argument that the Court should instead follow the few jurisdictions that do not allow such expert support, finding that Washington was different from those jurisdictions because: (1) its “nursing statutes differ from statutes in other states in that our legislature has empowered ARNPs to diagnose illnesses and injuries to at least a limited degree”; and (2) “the jurisdictions allowing nurses to testify on causation rely on ER 702 for the requisite qualification of experts and since an ARNP is qualified to independently diagnose a particular medical condition, “it follows that the ARNP may have the requisite expertise under ER 702 to discuss medical causation of that condition.” Id. at 8. In other words, the Court adopted the approach taken by the majority of jurisdictions and held that “ER 702 provides the appropriate mechanism for a trial court to determine whether an ARNP’s opinion on causation is sufficient based on the qualifications of the ARNP and the statutory scope of that ARNP’s authority and certification as a health care provider.” Id. at 17. As such, the Court ultimately concluded, “Whether or not an ARNP has the requisite specialized knowledge to qualify as an expert on causation is a determination left to the trial court under our Rules of Evidence, taking into consideration the ARNP’s particular scope of practice and expertise.” Id. at 19.

This unanimous opinion from the Washington Supreme Court that nurse practitioners may offer expert testimony as to the cause of an injury in medical malpractice suits is not only an important development for Washington litigants, but is also a useful reminder for litigants nationwide to evaluate which medical professionals may serve as experts and for what purpose in a medical malpractice lawsuit.

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