Pennsylvania Supreme Court Reverses Itself and Allows Nurses to Testify as Experts in Certain Medical Malpractice Actions

In a decision handed down yesterday, the Pennsylvania Supreme Court in the case of Freed v. Geisinger Medical Center, 2009 WL 1652856, 77 MAP 2007 (Pa. June 15, 2009) took the rare step of overturning one of its own prior decisions that precluded nurses from offering medical opinions when testifying as experts in a civil trial.

The Plaintiff in Freed sued various medical institutions alleging that the nursing staff at the facilities were negligent in preventing and treating his pressure wounds, or bedsores, resulting in the Plaintiff needing surgery and therapy. At trial, the Plaintiff presented a registered nurse as his expert witness to testify regarding the relevant nursing standard of care and to offer her medical opinion on the causation issue.

The trial court sustained the Defendants' objections to the nurse offering her medical opinion on the grounds that she was not a medical doctor. The trial court would go on to grant a compulsory nonsuit in favor of the Defendants when the Plaintiff failed to offer any other medical testimony on the causation issue.

In it Rule 1925 opinion relative to the Plaintiff's appeal, the trial court asserted that, under the prior Pennsylvania Supreme Court decision of Flanagan v. Labe, 690 A.2d 183 (Pa. 1997), the nurse was not competent to offer a medical opinion on the causation issue because such an opinion constituted a medical diagnosis, which the nurse was prohibited from making under the Professional Nursing Law, 63 P.S. Section 211, et seq.

On appeal, the Superior Court disagreed with the trial court and felt that the nurse was competent to provide her expert opinion both on the appropriate standard of nursing care and on the issue of causation. The Defendant medical facilities then appealed to the Supreme Court, arguing that the Superior Court's opinion was in conflict with the Flanagan decision.

In Freed, the Pennsylvania Supreme Court felt that the time had come to overturn the Flanagan decision for several reasons. First, the Flanagan rule was found to conflict with Pennsylvania's well established liberal standards regarding expert testimony. The Court also felt that the Flanagan decision did not have any support for its application of the Professional Nursing Law to the liberal rules governing the competency and admissibility of expert testimony. Also, the Freed Court noted that the Flanagan decision had led the lower courts to engage in repeated efforts to carve out exceptions to that prior decision.

Accordingly, the Supreme Court in Freed held that its prior decision in Flanagan must be overruled "to the extent it prohibits an otherwise competent and properly qualified nurse from giving expert opinion regarding medical causation."

In footnote 8 of its opinion, the Freed court acknowledge that its decision to overrule Flanagan may only have limited impact given the Legislative enactment of the MCARE Act, effective since 2002. That Act mandates that, in medical professional liability lawsuits, in order for expert witnesses to be qualified to testify on issues such as the appropriate standard of care, causation, and the nature and extent of injuries, the expert witness must be a physician licensed to practice medicine and must be engaged in, or recently retired from, active clinical practice or teaching.

This would obviously preclude nurses from serving as experts in medical professional liability lawsuits. However, the Freed Court noted that its decision may allow nurses to testify as experts in cases that did not involve medical professional liability actions against physicians, such as cases against non-physician health care providers or other like professional liability actions. The Court suggested that nurses may also be permitted to testify as experts in criminal cases.

The Freed court opted to apply its drastic change in the common law regarding experts retroactively to the case before it. As such, the Superior Court's reversal of the entry of a nonsuit in favor of the medical institution Defendants was affirmed and the case was remanded back to the trial level for a trial at which the court was instructed to assess the competency of the Plaintiff's expert medical witness nurse under the standards set forth in the MCARE Act and the case of Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa. 1995)("...the test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation.").

Given the admitted limited application of this decision in a typical medical malpractice action against a physician where it still appears that only doctors will be permitted to testify as experts against defendant doctors, it remains to be seen if this decision will have any great impact in medical malpractice cases against defendants other than doctors. For example, although the decision opens the door for plaintiffs to secure cheaper experts in the form of nurses, consideration will have to be given as to how such nurse experts will hold up in the proverbial battle of experts against an expert doctor retained by the defense.