RN's testimony admissible re nursing negligence--not medical malpractice.

CASE ON POINT: Broehm v. Rochester, 690 N.W.2d 721--MN (2005)

ISSUE: It is crystal clear that a nurse-expert's testimony is not admissible relative to physician malpractice. However a nurse-expert's testimony is admissible as to nursing negligence. In this extraordinary Minnesota case, there was a question as to whether an injury a patient incurred resulted from nursing negligence or a physician medical malpractice.

CASE FACTS: On December 17, 1999, Amy Broehm underwent tracheal resection surgery. The surgery was performed by Dr. Peter Pairolero, a thoracic surgeon and chief of surgery at Mayo Clinic Rochester. Following the surgery, the patient's head and neck had to be immobilized for a minimum of two to three days since hyperextension of the neck could cause separation of the tracheal sutures. One method used to immobilize the head and neck area is to suture the patient's chin to the chest. However, Dr. Pairolero had designed a head restraint. He employed this method "dozens of times" for over 28 years. On December 19, as the patient began to recover from sedation she complained of a headache and pain in her forehead. The patient's medical chart, showed that the "primary service" removed the restraint and observed an abraded area on the patient's forehead. Antibiotic medication ointment was applied to the area, and the restraint was redone to remove pressure from the site. The patient's wound did not heal properly. She was left with a permanent scar on her forehead. The patient brought suit against Mayo on July 31, 2001, alleging both nursing and medical malpractice. The patient served Mayo with an affidavit of expert review on the day suit was filed in accordance with Minnesota law. The patient served Mayo with an expert witness disclosure signed by Linda Wick, RN. The trial court granted Mayo's motion to dismiss. The patient appealed. The Minnesota Court of Appeals affirmed the judgment. The patient appealed.

COURT'S OPINION: The Supreme Court of Minnesota affirmed the lower court's judgment in part, reversed it in part, and remanded the case for further proceedings. The court held, inter alia, that in dismissing the plaintiff's complaint for failure to comply with expert disclosure, the trial court determined that a nurse practitioner is not qualified to provide an expert opinion as to the standard of care of a thoracic surgeon. The court decided that the nurse had sufficient training and practical experience with respect to general nursing duties as well as the duties of a nurse practitioner to qualify as an expert on nursing negligence. The court reversed the dismissal of the plaintiff's claim regarding nursing negligence and remanded the case for trial on that issue only.

LEGAL COMMENTARY: Two concurring opinions were filed. One of the concurring judges wrote a comprehensive and detailed opinion. The judge agreed with the majority's conclusion, However, he wrote a separate opinion because he believed that the majority failed to adequately address the judgment of the District Court. The judge noted that when the patient complained and hospital staff looked beneath the restraint, there was evidence that other hospital staff came into the patient's room, and the restraint was adjusted. The judge found that it was not clear from the record whether the initial inspection of the patient's skin was performed by a member of the hospital's nursing staff or by a member of Dr. Pairolero's service. According to the patient's medical chart, the "primary service" removed the restraint and discovered a 9 x 1 cm. reddish-purple area across the patient's forehead. Triple antibiotic ointment and Elastogel were applied, and the restraint was redone. The judge concluded that Nurse Wick had the necessary credentials to qualify her as an expert on nursing negligence and opine as to it. He then summarized her opinion regarding the patient's wound. Nurse Wick agreed with "description and diagnosis" in Mayo's records that the probable cause of the wound was "pressure necrosis." The judge noted that Nurse Wick opined that general hospital policy would require documentation of skin integrity at least once during each 8-hour nursing shift "whenever a dressing or equivalent foreign material has been applied to a patient's skin." Nurse Wick further noted that if Dr. Pairolero ordered that the restraints not be disturbed, such an instruction would require him to "personally inspect the dressing or assign someone to "fulfill" the duties of inspection." She asserted that these orders should have been included in the patient's medical records. They were not!

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.