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Court barred Dr.'s testimony v. advanced practice RN.

CASE ON POINT: Smith v. Pavlovich, 5-08-0256 (9/10/2009)-IL

ISSUE: Most are pleased that nurses are given more and more privileges in the practice of nursing. However, in this unusual case both a trial court and an appellate court ruled that a physician who practiced pediatrics could not testify against an advanced practice nurse who, for all practical purposes, was practicing as a pediatrician!

CASE FACTS: Wanda Mae Smith, individually and as Special Administrat[rix] of the Estate of [her daughter] Crystal Smith, brought suit against Patricia Dillard, an advanced practice registered nurse and Drs. James Pavlovich and Kathryn Churling, all of whom practiced at Carbondale Clinic. Crystal was born December 2, 1998, and died March 18, 2002, at the approximate age of three years, from what is believed to have been bacterial meningitis that attacked her brain. In her complaint filed in the Circuit Court of Jackson County on February 2, 2004, the plaintiff alleged that the defendants were negligent in failing to recommend and administer the vaccine PCV7, known as Prevnar, which the plaintiff alleged would have prevented the infection. She further alleged that the defendants were negligent in failing to prescribe high dose Amoxicillin for Crystal. Crystal had visited the Clinic six times. However, on each occasion she saw only Nurse Dillard. Each of her visits was a "focused visit," that is, it was made to address a particular problem such as a cold or a sore throat None of the visits was for a "Well-baby" checkup, which was typically of broader scope than a "focused visit." Crystal never saw Dr. Pavlovich or Dr. Churling on any of the visits. Crystal was in the presence of Dr. Pavolvich on occasion when she accompanied her mother and her younger sister, Gabrielle, on Gabrielle's "Wellbaby" visits with Dr. Pavlovich. Dr. Pavlovich was Gabrielle's pediatrician. He never examined or treated Crystal. Dr. Churling never saw Crystal. Crystal's mother was never offered the vaccine Prevnar or Amoxicillin for Crystal on any of her visits with Nurse Dillard After a jury trial lasting several days, the Circuit Court entered several orders that resulted in directed verdicts in favor of each of the defendants. The Circuit Court barred the testimony of Dr. Marc Weber, a pediatrician, regarding the standard of care applicable to advanced practice nurses, because Dr. Weber was a physician and not an advanced practice nurse. Since the plaintiff had no other witness to testify as to the standard of care of an advanced practice nurse and since Nurse Dillard testified that she had met the standard of care, the Circuit Court directed a verdict in her favor as well as in the favor of all defendant physicians. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of Illinois affirmed the judgment of the trial court dismissing the plaintiff's case against all three defendants. The court held, inter alia, that as an advanced practice nurse, Nurse Dillard, worked independently of any physician. The court observed that she could independently see and care for patients, order and interpret tests, and write prescriptions without being required to confer with or seek the approval of a physician. She was, however, required to work under a written collaborative agrement with a collaborating physician which, among other things, authorized the categories of care, treatment, or procedures to be performed by the advanced practice nurse. Despite the tact that the court recognized that the advanced practice nurse worked under the medical direction of a collaborating physician, the court did not address the fact that the physician or the Carbondale Clinic, which employed them, might be liable for any negligence of the nurse.

LEGAL COMMENTARY: It is respectfully suggested that the plaintiff's expert witness, a pediatrician, should have been allowed to testify against Nurse Dillard. It is further submitted that the rule that in order to testify against another health care provider, one must practice in the same field should not have been applicable in this case since the facts show that Nurse Dillard was actually engaged in the practice of pediatrics rather than as a nurse! Unfortunately, the court rejected the plaintiff's contention that since Nurse Dillard was acting essentially as a pediatrician, and not as a nurse, she should have been subjected to the standard of care of a pediatrician. It is also respectfully submitted that the plaintiff's expert witness, a pediatrician, was competent to offer an expert opinion on the standard of care applicable to pediatricians. Many might find it difficult to understand how the court could have rejected the plaintiff's contention that Nurse Dillard was acting as a pediatrician and not a nurse and that consequently a the plaintiff's expert witness, a pediatrician should have been allowed to testify against her. Both the trial court as well as the appellate court appear to have left too many questions unanswered. Was or wasn't the nurse accountable to a "collaborative" physician? If not Dr. Pavlovich and/or Dr. Churling, then who? Was the nurse actually practicing medicine? If so, wasn't she negligent for failing to give Prevnar or Amoxicillin to Crystal. Didn't anyone in a position of responsibility at the Clinic realize that Crystal had never been seen by a physician at the Clinic? Why would Crystal's younger sister, Gabrielle have her own pediatrician while Crystal had none? There are just all too many questions left unanswered!

Meet the Editor & Publisher: 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 througout 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 all attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers. Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Nursing Law Case on Point
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Article Type:Case overview
Date:Oct 1, 2009
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