Nurse Not Competent to Give Causation Testimony in Medical Malpractice Case

In a health care liability action, a plaintiff must show not only that the defendant breached the standard of care, but that such breach proximately caused the injury in question. Further, that causation testimony cannot come from a nurse.

In Estate of Sample v. Life Care Centers of America, Inc., No. E2017-00687-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2017), plaintiff filed an HCLA claim after decedent died while in the care of defendant nursing home. The complaint alleged that “per medical orders, Deceased was not to be left lying flat in bed,” and that “on the day of her death, Deceased had been lying flat in bed causing her to suffocate or aspirate and die.”

Defendant filed a motion for summary judgment supported in part by the affidavit of Bethany Dragnett, a registered nurse who was one of decedent’s care takers at the home, and plaintiff’s responses to requests for admission. In the discovery responses, plaintiff “admitted that Deceased’s death certificate expressly identifies [arteriosclerotic cardiovascular disease] as the sole cause of Evelyn Sample’s death,” that decedent suffered from this cardiovascular disease and from congestive heart failure prior to her death, that the “death certificate does not mention the word “aspiration,” and that no autopsy was requested after the death. In addition, the nurse stated in an affidavit that in her opinion “none of the nurses or certified nursing assistants at Life Care breached the standard of care with regard to the care provided to Deceased.” The nurse further stated that “she never found Deceased lying flat in bed with the feeding tube on” and that when she was called into the room on the day of death, decedent was “sitting in a wheelchair not breathing.”

In response to the summary judgment motion, plaintiff offered an affidavit from a registered nurse who stated that “in [her] opinion,…failing to keep the bed elevated caused Mrs. Sample to aspirate causing acute respiratory failure and death.”

The trial court granted the motion for summary judgment, holding that “although the Estate had created a genuine issue with regard to whether Life Care breached the standard of care, the Estate had failed to put forth any competent proof with regard to whether the alleged breach proximately caused any injury that otherwise would not have occurred.” The Court of Appeals affirmed this ruling.

In an HCLA case, a plaintiff must prove by expert testimony both a breach in the standard of care and causation. Here, the Court of Appeals found that plaintiff did not produce “competent evidence with regard to causation.” The Court stated:

[T]he Trial Court correctly found that [plaintiff’s expert] was not competent to testify as to the issue of causation. The Trial Court relied upon Richberger v. The West Clinic, P.C., wherein this Court held that in a health care liability action a registered nurse is prohibited from testifying as an expert with regard to causation pursuant to Tenn. Code Ann. § 29-26-115(a)(3) because a registered nurse is prohibited from making a medical diagnosis pursuant to Tenn. Code Ann. § 63-7-103(b).

(internal citation omitted). Because the testimony of the nurse was not admissible on the issue of causation and plaintiff offered no other causation evidence, summary judgment was appropriate. In addition, the Court of Appeals rejected plaintiff’s argument that “it could produce evidence in its favor ‘at a future trial,’” noting that “[t]he focus is on the evidence the nonmoving party comes forward with at the summary judgment stage, not on hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial.” (internal citation omitted).

This case reminds us to pay close attention to both the statutory requirements for expert testimony in an HCLA case, as well as case law interpreting those requirements. If plaintiff here had produced testimony from a competent expert, she might have survived the motion for summary judgment.

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