Can Nurses Provide Medical Causation Opinions? - Shumaker ...

Medical Liability and Health Care LawExpert TestimonyBy Christian H. StaplesCan Nurses ProvideMedical CausationOpinions?A review of some of thecases addressing theadmissibility of nurses’medical causationopinions and an analysisof the underlyingrationales that dictatedthe cases’ outcomes.In the vast majority of medical malpractice actions, plaintiffs’attorneys must offer expert testimony to establishthe applicable standard of care and whether a defendant’salleged breach was the proximate cause of a plaintiff’s inju-■ Christian H. Staples is an associate attorney in the medical malpracticedefense practice group at Shumaker, Loop & Kendrick LLP in the firm’sCharlotte, North Carolina, office. He is member of the DRI Medical Liabilityand Health Care Law Committee and the North Carolina Association ofDefense Attorneys.© 2011 DRI. All rights reserved.ries and damages. Health care providersrely on the courts to govern expert testimonyadmissibility on these issues fairly.The applicable standard of care is usuallydefined by a statute and most commonlyrequires that health care providerswill do what other similarly trained professionalswould do under the same or similarcircumstances. In principle, at least, this isan apple-to-apple comparison.Causation, on the other hand, is a muchmore amorphous concept. Most states donot have statutes that directly address theadmissibility of medical causation opinions.Instead, practitioners must crafttheir arguments for or against admissibilitybased on the nature of the specific medicalcausation opinion at issue, the witness’squalifications for offering such an opinion,and whether the opinion will help a jury todetermine a matter at issue. The startingpoint for this analysis is usually a combinationof Rule 702 of the Federal Rules ofEvidence or the relevant state law counterpartand the applicable case law interpretingthe rule.Generally speaking, a court will considerany licensed physician qualified tooffer a medical causation opinion. Lingeringdoubts about a physician’s qualificationsto testify in this regard frequentlyfactor into deciding how much weight toassign that physician’s opinion but not theopinion’s admissibility.However, when a nurse enters the causationarena, red flags go up. Althoughplaintiffs, defendants, and the lawyers whorepresent them all recognize the critical rolethat nurses play in providing modern medicalservices, a diligent practitioner rightfullywill question whether even the mostexperienced nurse is qualified to offer amedical causation opinion in a court of law.For purposes of this article, the term“medical causation opinion” is defined astestimony in the form of an opinion regardingthe proximate cause of an individual’sinjury, illness, or death, or opinion testimonyregarding an individual’s medicaldiagnosis. Excluded from this definition isa “nursing diagnosis” which, unfortunately,must be left for discussion on another day.This article will explore whether courtsconsider nurses qualified to offer medicalcausation opinions in modern medicalFor The Defense ■ October 2011 ■ 25

Medical Liability and Health Care Lawmalpractice actions. Reviewing the relevantcase law on this issue reveals a jurisdictionalsplit of authority that defies easyreconciliation. Nonetheless, this article willattempt to present a workable classificationof the case law in this area.The article will examine those cases holdingthat nurses are not qualified to offermedical causation opinions, emphasizingWhile the courtexpressly ruled thatnurses cannot testify on“medical causation,” itnever defined that term.the Supreme Court of Mississippi’s decisionin Vaughn v. Mississippi Baptist Med. Ctr.,20 So. 3d 645 (Miss. 2009). Next, the articlewill explore those cases holding that nursesmay be qualified to offer medical causationopinions, focusing on the Supreme Court ofPennsylvania’s decision in Freed v. GeisingerMed. Ctr., 601 Pa. 233, 971 A.2d 1202 (Pa.2009). We will consider the rationale behindthese decisions and will discuss the pros andcons of each. Finally, the article will offer afew practice pointers that defense practitionerscan apply to future cases.Cases Holding That NursesAre Not Qualified to OfferMedical Causation OpinionsOne of the more recent decisions holdingthat nurses are not qualified to testifyon medical causation is Vaughn v. MississippiBaptist Med. Ctr., 20 So. 3d 645 (Miss.2009). The facts of Vaughn are as follows:the plaintiff, Paula Vaughn, was admittedto the hospital for double artery bypass surgeryand repair of two heart valves. Id. at647. Additionally, the plaintiff had arteriesremoved from the upper insides of bothof her thighs, resulting in bilateral, openwounds. Id. at 647–48. As a result of theseprocedures, she was temporarily unableto ambulate or use the bathroom withoutassistance from the hospital staff. Id. at648. The plaintiff alleged that the hospital26 ■ For The Defense ■ October 2011staff’s failure to assist her to the bathroomcaused her to involuntarily urinate and defecateon herself, thereby contaminating herleg wounds and ultimately causing a staphinfection to develop. Id. The hospital deniedthat the plaintiff developed a staph infectionduring her hospitalization. Id.The plaintiff designated Crystal Keller,RN, as an expert witness to testify regardingthe causal nexus between the allegednegligence of hospital staff and the plaintiff’sstaph infection. 20 So. 3d at 648. Thetrial court granted the hospital’s motionto strike Keller as an expert as well as theaccompanying motion for summary judgment,and the plaintiff appealed. Id. at 649.The gist of the hospital’s argument wasthat because Keller was not qualified todiagnose an infection, she was not qualifiedto render an opinion regarding themedical cause of the plaintiff’s infection.Id. at 650. In response, the plaintiff argued“that, as a nurse, Keller was trained to recognizethe signs and symptoms of an infection”and that her opinions in this regardwere “within a nurse’s area of practice.” Id.Curiously, both sides cited the same caseto support their arguments: Richardson v.Methodist Hospital of Hattiesburg, Inc., 807So. 2d 1244 (Miss. 2002). Vaughn, 20 So. 3dat 651. In Richardson, the very same nursingexpert, Keller, was permitted to offer anopinion on whether the alleged negligence ofthe nursing staff proximately caused the patient’sphysical pain and suffering, but Kellerwas precluded from testifying regarding thecause of the patient’s death. Id. (citing Richardson,807 So. 2d at 1245 and 1248).The Supreme Court of Mississippi easilydistinguished Richardson from the Vaughncase: Keller was not testifying about thecause of Vaughn’s pain and suffering, butinstead she was to testify about the signs,symptoms, development, and progressionof the plaintiff’s staph infection. Id. n1. Thisdistinction would prove fatal to the plaintiff’scase. According to the Vaughn court,[w]hile Richardson explicitly held that anurse cannot testify as to cause of death,we agree with [the defendant] that Richardsonshould be interpreted as havingmade impermissible any testimony froma nursing expert on diagnostic impressions,because nurses are not qualified tomake medical diagnoses or attest to thecause of illnesses.Id. at 651–52 (citing Richardson, 807 So. 2dat 1247–48).Following this interpretation of Richardson,the Vaughn court declared, “We nowexplicitly hold that nurses cannot testify asto medical causation.” Id. at 652. Accordingto the Vaughn court, this holding “is inkeeping with the majority rule that nursingexperts cannot opine as to medical causationand are unable to establish the necessaryelement of proximate cause.” 20 So. 3dat 652 (citing Richberger v. West Clinic, P.C.,152 S.W.3d 505 (Tenn. Ct. App. 2004); Elswickv. Nichols, 144 F. Supp. 2d 758 (E.D. Ky.2001); Colwell v. Holy Family Hosp., 15 P.3d210 (Wash. Ct. App. 2001); Long v. MethodistHosp. of Indiana, Inc., 699 N.E.2d 1164(Ind. Ct. App. 1998); Phillips v. Alamed Co.,Inc., 588 So. 2d 463 (Ala. 1991)).After announcing its holding, theVaughn court noted that under the MississippiNursing Practice Law the practiceof professional nursing does not includeacts of medical diagnosis. Id. at 652 n.2.This likely explains why the Vaughn courtextended Richardson in the Vaughn caseto prohibit nurses from testifying regarding“diagnostic impressions” and likewiseconcluded that in that jurisdictioncourts should preclude nurses from testifyingon “medical causation.” Id. at 652.As we will discuss below, whether nursingpractice laws actually compel such a conclusionremains open for debate. Nonetheless,in other cases courts have preventednurses from offering medical causationtestimony because those other states hadnursing practice laws prohibiting nursesfrom making medical diagnoses. See, e.g.,Richberger, 152 S.W.3d at 511 (“Accordingto [Tennessee law defining the practice ofnursing], a registered nurse is prohibitedfrom making a medical diagnosis and istherefore not competent to offer opinionson medical causation in a medical malpracticeaction.”); Stryczek v. MethodistHosps., Inc., 694 N.E.2d 1186, 1189 (Ind.Ct. App. 1998) (comparing and contrastingthe scope of physician and nursing diagnosticand treatment authority under theIndiana practice laws and concluding thata nurse is not qualified to testify regardingthe cause of cardiac damage); Costello v.Christus Santa Rosa Health Care Corp., 141S.W.3d 245, 248–49 (Tex. Ct. App. 2004)(holding that a nurse is precluded under

the Texas Nursing Practice Act from testifyingregarding cause of death); Robertsonv. Mount Carmel East Hosp., 2011 WL1632128, at * 6 (Ohio Ct. App. Apr. 28, 2011)(holding that the Ohio nursing practice lawprecludes a nurse from testifying regardingissues of proximate cause).The Vaughn opinion has several flaws.First, while the court expressly ruled thatnurses cannot testify on “medical causation,”it never defined that term. Becauseof this shortcoming, it is unclear whetherVaughn overrules Richardson’s exceptionto inadmissibility for a nurse’s testimonyon the proximate cause of physical painand suffering. The dissent in Vaughn wouldhave allowed Keller to testify about theproximate cause of the plaintiff’s “painand suffering, depression, mental anguish,emotional distress, and loss of dignity.”20 So. 3d at 658 (Kitchens, J., dissenting).According to the majority, however,Keller’s affidavit did not state or even implythat she would offer an opinion regardingthe cause of those injuries and relateddamages. Id. at 651 n.1. It remains to beseen whether Mississippi courts would stillpermit a nurse to offer an opinion regardingthe proximate cause of a plaintiff’s painand suffering and related damages underthe right set of facts.The second and perhaps the most obviousflaw in Vaughn is that it establishesa hard-and-fast rule that courts will haveto apply in all future cases. The dissent inVaughn clearly raised this point, despiteagreeing with the majority’s conclusionthat Keller was not qualified to discuss theproximate cause of the plaintiff’s staph infection.As the dissent so eloquently stated:the issue of whether a particular nurse,by virtue of his or her knowledge, skill,experience, training or education, possessessuch ability is better determinedby a case-by-case inquiry than by abroad, ‘one-size-fits-all’ judicial pontificationto the effect that no nurse in theworld will ever be allowed to testify asto medical causation in any Mississippicourt case.Id. at 657 (Kitchens, J., dissenting). The dissentmakes a good point given that eachcase presents a unique set of facts andcircumstances and, similarly, each nursepossesses a different level of education,training, knowledge, skill, and experience.Cases Holding That NursesMay Be Qualified to OfferMedical Causation OpinionsOne of the more recent cases holding thatnurses may be qualified to offer medicalcausation opinions is Freed v. GeisingerMed. Ctr., 971 A.2d 1202 (Pa. 2009). Freedis an interesting case because it caused thePennsylvania Supreme Court to overturnits earlier decision in Flanagan v. Labe,690 A.2d 183 (Pa. 1997), which had prohibitednurses from offering medical causationopinions.The facts of Freed are as follows: theplaintiff, Roger Freed, was involved in anautomobile accident during which he sufferedsevere spinal cord injuries resultingin paraplegia. 971 A.2d at 1204. He developedbedsores on his buttocks and sacrumwhen he was hospitalized. Id. at 1204–05.The bedsores ultimately became infectedand required surgical debridement. Id. at1205. The plaintiff alleged that the medicalcenter nursing staff negligently failedto prevent and treat his bedsores. Id. Duringthe trial, the plaintiff presented thetestimony of Linda D. Pershall, RN, as anexpert witness on the standard of care andon causation. Id. During direct examination,when Pershall was asked for her opinionon the cause of the plaintiff’s bedsores,the trial court sustained the defense attorney’sobjection on the basis that Pershall“was not a medical doctor and, therefore,was not qualified to give a medical diagnosis.”971 A.2d at 1205. Accordingly, thetrial court granted a compulsory nonsuit infavor of the defendants. Id.The plaintiff appealed to the superiorcourt, which reversed the trial court holdingand held that Pershall was competentto offer expert testimony on medical causation.Id. at 1206. The intermediate appellatecourt was apparently persuaded partlybecause the parties had stipulated that therelevant medical diagnosis was bedsoresand that, by definition, the cause of bedsoresis unrelieved pressure on that part ofthe body where the bedsores develop. Id.at 1207. Therefore, according to the superiorcourt, the only dispute was “whether abreach of the standard of nursing care foran immobilized patient proximately causedthe unrelieved pressure that in turn caused[the plaintiff’s] pressure wounds to developand/or worsen.” Id. The superior court concludedthat the trial court should not haveprecluded Pershall from testifying on thisissue. 971 A.2d at 1207.The defendants then appealed to theSupreme Court of Pennsylvania, arguingthat the superior court holding conflictedwith the supreme court’s prior decisionin Flanagan, 690 A.2d 183, and thereforethe court should vacate the superior courtholding. Id. at 1206. Naturally, the SupremeCourt of Pennsylvania began to analyze theissue by thoroughly reviewing the Flanagandecision. See id. at 1206–07.Flanagan was a medical malpracticecase in which the plaintiff alleged that hereceived substandard nursing care in connectionwith treatment for a collapsedlung. 690 A.2d 183, 184 (Pa. 1997). Specifically,the hospital inserted a tube into theplaintiff’s chest wall to treat the collapsedlung, and the plaintiff subsequently developedsubcutaneous emphysema. Id. Theplaintiff alleged that the nursing staff’snegligent care prevented an early diagnosisand caused his condition to worsen.Id. The plaintiff proffered the testimonyof a registered nurse to establish that thenursing staff’s breach of the applicablestandard of care was “a substantial contributingfactor in his progressively worseningsubcutaneous emphysema.” Id. at 184–85. The Flanagan court held that the trialcourt had excluded this testimony properlybecause “the normal test of competency isconstrained by [the Professional NursingLaw] limiting the deemed competency ofnurses.” Id. at 185. In other words, becausethe Pennsylvania Professional Nursing Lawprevented nurses from making medicaldiagnoses, the trial court properly excludedthe nurse’s testimony regarding “the identityand cause” of the plaintiff’s condition.690 A.2d at 186.In overturning Flanagan, four controllingprinciples guided the Freed court:(1) the holding in Flanagan conflicted withthe general standards governing the admissibilityof expert testimony; (2) Flanagandid not offer support for applying the ProfessionalNursing Law to the rules governingthe admissibility of expert testimonyin a court of law; (3) the lower courts hadunsuccessfully attempted to both distinguishFlanagan from other cases and tocarve out exceptions to the rule that ithad announced; and (4) because FlanaganFor The Defense ■ October 2011 ■ 27

Medical Liability and Health Care LawEach case presents aunique set of facts andcircumstances and, similarly,each nurse possesses adifferent level of education,training, knowledge,skill, and experience.involved an evidentiary issue and resolvingit, similar to resolving a procedural issue,would “not favor one class of litigants overanother,” maintaining stare decisis due topolicy considerations became “less compelling.”971 A.2d at 1212 (quoting Hohn v.United States, 524 U.S. 236 (1998).In analyzing the first principle, the Freedcourt recited the rule that “in order to qualifyas an expert witness in a given field, awitness need only possess greater expertisethan is within the ordinary range oftraining, knowledge, intelligence, or experience.”Id. at 1208 (quoting the superiorcourt decision in Freed’s case). The Freedcourt emphasized that this standard foradmissibility was “a liberal one.” Id. at1209 (citing and quoting Miller v. BrassRail Tavern, 664 A.2d 525, 528 (Pa. 1995)).According to the Freed court, Flanagan hadimproperly “narrowed the well- establishedliberal standard for expert testimony inthose cases involving nurses offered asexperts.” Id.With respect to the second principle, theFreed court determined that the Flanagancourt did not offer “support for its [the Flanagancourt’s] conclusion that the restrictionscontained in the Professional NursingLaw apply in a court of law.” Id. at 1210.According to the Freed court, “there is nolanguage whatsoever in [the ProfessionalNursing Law] to suggest that the principlesgoverning the actual practice of nursingare applicable in the distinct legal arena ofmalpractice or negligence actions, which isgoverned by the Rules of Evidence and theRules of Civil Procedure.” 971 A.2d at 121028 ■ For The Defense ■ October 2011(emphasis in original). This is an importantpoint because Freed appears to be oneof the few cases to interpret the nursingpractice principles codified in laws as separateand distinct from rules of evidence orrules of civil procedure. But see Velazquezv. Commonwealth of Virginia, 557 S.E.2d213, 218 (Va. 2002) (“We are of the opinionthat the testimony of a [sexual assaultnurse examiner] regarding the causationof physical injuries to a victim of a sexualassault is not the practice of medicine….”).Turning to the third and fourth principles,the Freed court appears to have concludedthat the various exceptions that thelower courts, including the superior courtbelow, had attempted to carve out fromFlanagan did not establish a clear precedentfor future cases. Despite concludingthat Flanagan was “inherently flawed,” theFreed court was “loath to reverse [its] ownprior decisions, as such action necessarilyimplicates the great principle of staredecisis.” 971 A.2d at 1211. Nonetheless,the Freed court found a solution by analogizingthe admissibility of expert testimonyas an evidentiary issue to a questionof procedure, as noted above, and on thatbasis concluded that “the role of stare decisisis diminished.” Id. at 1212 (citing Hohnv. United States, 524 U.S. 236 (1998)).Finally, the Freed court had to decidewhether to apply its decision retroactivelyor prospectively, noting that it had discretionto do either. Id. at 1213. The Freedcourt found that it could apply its decisionto overturn Flanagan retroactively toFreed’s case. Id. at 1213–14. So the Freedcourt affirmed the superior court’s orderreversing the trial court’s entry of a compulsorynonsuit in favor of the defendants,remanded the case for a trial, andinstructed the trial court to assess thecompetence of all the expert witnesses,including Pershall’s, based on the witness’training, knowledge, intelligence, andexperience. Id. at 1214.As a side note to conclude the discussionof Freed, the Pennsylvania legislatureenacted the Medical Care Availabilityand Reduction of Error Act (the MCAREAct) before the Supreme Court of Pennsylvaniaissued the opinion in the Freedcase appeal. The MCARE Act made substantialchanges to the requirements forqualifying as an expert witness in medicalmalpractice actions. As the Freed courtrecognized, “our decision to overrule Flanaganmay have limited impact in light ofthe legislature’s enactment of the MCAREAct….” Id. at 1212 n. 8. However, becausethe purpose of this article is to examinethe analysis in Freed and that court’s reasonsfor overturning Flanagan rather thanthe specific requirements for the admissibilityof expert testimony in the state ofPennsylvania, discussing the MCARE Actis beyond the scope of this article. However,for those interested in learning moreabout the MCARE Act, see 40 Pa. Stat. Ann.§§1303.101–1303.910.One criticism of Freed is that, as a bedsorescase, the causation issue was relativelybasic when compared with, say, the cause ofcertain cardiac or neurologic conditions, orthe cause of an individual’s death. In fact,the overwhelming weight of authority inthis country holds that nurses are qualifiedto testify regarding the developmentand prevention of bedsores. See Gaines v.Comanche Co. Med. Hosp., 143 P.3d 203,206 n.10 (Okla. 2006) (citing other cases).According to the Gaines court, “[r]e searchreveals no decision, turning on the issue ofwhether a nurse may offer expert testimonyrelating to bedsores, which has disallowedsuch evidence.” Id. at 207.Because bedsore cases typically involveallegations of nursing negligence, ratherthan physician negligence, because nursestypically identify and care for bedsores,bedsores are primarily an issue for whichnurses have unique expertise. It logicallyfollows that nurses more likely than notcan competently testify regarding the proximatecause of bedsores. But the Gainescourt carefully limited that holding to thefacts of the case. See id. at 206 (“Today’sdecision cannot be determined to have‘opened the floodgates’ for nurses to testifyas experts in malpractice cases broughtagainst physicians. It is limited to its factsand expresses no opinion on whether thepatient should prevail.”). Freed did notcontain a similar disclaimer, and thereforeother courts could interpret it as carteblanche authority for admitting nursingtestimony on a wide variety of medical causationtopics.The Supreme Court of Pennsylvaniahas not been the only court to permit anurse to testify on medical causation.

Courts in other states have similarly heldthat nursing experts are qualified to offermedical causation opinions provided thatthey have the requisite knowledge, training,and experience in the subject area towhich their testimony relates. For example,in North Carolina, a long line of casesholds that nurses are qualified to testifyon medical causation. See, e.g., Maloneyv. Wake Hosp. Sys., Inc., 262 S.E.2d 680(N.C. Ct. App. 1980) (holding that the trialcourt erred in excluding a nurse’s opinionthat the burn suffered by the plaintiff wascaused by an undiluted bolus of potassiumchloride that was administered into the tissueof the plaintiff’s hand); State v. Tyler,485 S.E.2d 599 (N.C. 1997) (upholdingthe admission of a nurse’s trial testimonyregarding the cause of the victim’s deathand the effects of the sedative medicationVersed, which was administered to thevictim); Diggs v. Novant Health, Inc., 628S.E.2d 851 (N.C. Ct. App. 2006) (holdingthat the nurse was improperly precludedfrom testifying that the defendant nursingstaff’s failure to report the plaintiff’s troubledbreathing and sharp throat pain followinggall bladder surgery would have ledto an earlier identification of the plaintiff’spunctured esophagus and would have lessenedthe seriousness of the plaintiff’s injuriesresulting from that perforation).The “essential question” under NorthCarolina law is “whether the witness,through study or experience, has acquiredsuch skill that he was better qualified thanthe jury to form an opinion on the subjectmatter to which his testimony applies.”Diggs, 628 S.E.2d at 856 (quoting Tyler, 485S.E.2d at 608). In answering this question,North Carolina has taken a liberal stanceon the ability of nurses to act as expertwitnesses in medical malpractice actions.See Maloney, 262 S.E.2d at 684 (“The roleof the nurse is critical to providing a highstandard of health care in modern medicine.Her expertise is different from, but noless exalted than, that of the physician.”).The Maloney court went on to explain that“[t]he license, if any, held by a witness mayproperly be one fact for the court to takeinto account.” Id. However, under Maloney,whether a witness possesses a licenseis separate and apart from “the controllingfactors for the court’s consideration,”which “must be the education, knowledge,information, skill and experience of thewitness.” Id.ConclusionThere are undoubtedly scores of othercases that have addressed whether nursesare qualified to present medical causationopinions. This article has merely showcasedsome of the decisions on this issueand analyzed the underlying rationalesthat have dictated the outcomes in thosecases. Of course, each state is unique bothin its laws regarding expert testimonyadmissibility and in its reported decisionsapplying those laws to specific case factsand circumstances. In medical malpracticecases that find their way into federalcourts, those courts must address whethera nurse is qualified to offer medical causationopinions under Rule 702 of the FederalRules of Evidence and Daubert v. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579(1993). See Elswick v. Nichols, 144 F. Supp.2d 758, 765–66 (E.D. Ky. 2001).Nonetheless, I can offer some overarchingobservations that apply on a nearlyuniversal basis. For starters, it appearsthat the Vaughn court was right in statingthat the majority of courts hold thatnurses are not qualified, no matter theireducation, training, or experience, to presentmedical causation opinions. See 20 So.3d at 652 (citing other cases). A majority ofcourts still require that a physician establishproximate cause. However, one exceptionexists: a nurse may testify regardingthe proximate cause of a patient’s bedsores.See Gaines v. Comanche Co. Med. Hosp.,143 P.3d 203, 206 n.10 (Okla. 2006) (citingother cases). Furthermore, without a controllingprecedent expressly prohibitingmedical causation opinions from nurses,such as Vaughn, an appeals court generallywill not reverse a trial court’s rulingon the admissibility of expert testimonyunless the trial court abused its discretion.See General Electric Co. v. Joiner, 522 U.S.136, 139 (1997).In terms of practical pointers thatdefense practitioners should considerwhen a nurse attempts to present a medicalcausation opinion, first, be sure to considercarefully the nature of the profferedopinion and examine the nurse’s specificqualifications as they relate to that particulararea of medicine. You can most easilyaccomplish this when taking a nurse’sdeposition, but you could also do it duringa voir dire outside the presence of thejury. Second, do not become too enamoredwith the argument that a court shouldexclude a nurse’s medical causation opinionsimply because a nurse is not authorizedto make medical diagnoses as part ofhis or her routine professional practice. AsWhether a witnesspossesses a license isseparate and apart from“the controlling factors forthe court’s consideration,”which “must be theeducation, knowledge,information, skill andexperience of the witness.”illustrated above, such arguments may failwith a court absent proof that the legislatureintended for the relevant nursing practicelaws to carry over and apply to a nurse’srole as an expert witness. See Freed, 971A.2d at 1210; Velazquez v. Commonwealthof Virginia, 557 S.E.2d 213, 218 (Va. 2002).Third, if you are constrained by your jurisdiction’sprior rulings on the admissibilityof a nurse’s medical causation opinion,then you must examine those precedentsclosely and determine whether the underlyingrationale for permitting or prohibitingsuch testimony is well supported. Asnoted in Freed, laws governing the admissibilityof expert testimony are party- neutral,which diminishes the underlying purposeof maintaining stare decisis. 971 A.2d at1212 (citing Hohn v. United States, 524 U.S.236 (1998)). This argument may provide theadditional boost that you need to convincea court to rule in your favor even if it meansoverturning an established precedent.For The Defense ■ October 2011 ■ 29