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Pennsylvania Supreme Court Allows Nurse’s Testimony

Below are links to the majority and the dissenting opinion of the Pennsylvania Supreme Court in the recent decision, Freed v. Geisinger Medical Center, ____ A.2d ____ (Pa. June 15, 2009). Justice Todd wrote the opinion for the majority and the dissent was authored by Justice Eakin.

The medical malpractice suit was based on allegations that the nursing staff at a rehabilitation hospital did not meet the standard of care in preventing and treating pressure sores Mr. Freed developed.

In a medical malpractice case, the Plaintiff, Mr. Freed, must have an expert give an opinion that the treatment fell below the standard of care and that the negligence caused the injury alleged. For an expert, Mr. Freed’s lawyer presented a registered nurse to testify at trial. Geisinger objected when the testimony was offered, and the trial court held the RN was not qualified to give a medical diagnosis. Without this testimony, Mr. Freed’s case failed because he could not prove the substandard treatment was the cause of his injury.

In the Court of Common Pleas, a motion for compulsory non-suit was granted and the Plaintiff’s case was lost. The Pennsylvania Superior Court reversed. Here, the Supreme Court affirmed and held the Plaintiff’s expert may testify, and the case was remanded for trial.

Legal Reasoning
The Court began by defining “expert” as someone with more than an ordinary range of training, knowledge, intelligence, or experience, who has specialized knowledge in the subject under investigation and cited to Miller v. Brass Rail Tavern. Next, Justice Todd explained why the Supreme Court’s decision in, Flanagan v. Labe, needed to be overturned and therefore was not binding on the Freed case. Flanagan held that the Professional Nursing Law says a nurse may not make a medical diagnosis. That being the case, a nurse cannot give expert testimony in court which requires a medical diagnosis. Therefore a nurse cannot testify to causation in a medical malpractice case. Here, the Supreme Court holds that testifying as an expert considers past events or hypotheticals, and there is no implication of “the practice of nursing,” in which a patient is involved. The testimony is outside of what was considered by the statute, and it qualifies for what the court has already defined as expert.

Where the medical negligence is a breach of the standard of nursing care, and that failure caused the injury, a nurse can testify to what caused the injury.

A question remains whether the Court’s holding in Freed will be the standard applied to non-physician health care providers, or whether the increased threshold for who can be an expert created by the MCARE Act will apply. Question raised in the majority’s footnote 8.

The dissent would uphold Flanagan and reverse the Pennsylvania Superior Court here, because its opinion is in conflict withFlanagan.

The opinion is based on the Professional Nursing Statute and the MCARE Act, and extends restrictions on a nurse’s ability to opine on medical diagnosis to the court room.

A medical malpractice attorney from SCHMIDT KRAMER will choose the right expert for your case, based on the current state of the law in Pennsylvania.

D. Joseph Chapman, Esquire
(717) 888-8888