No “Bright-Line” Rule Against Nurses Being Expert Witnesses: Indiana Court of Appeals

No legal precedent supports a bright-line rule against nurses acting as expert witnesses and testifying at trial regarding causation, the Indiana Court of Appeals has ruled, overturning a trial court.

In Charles Aillones v. Glen D. Minton, 82A01-1609-CT-2138, Aillones alleged that he was injured when Minton's vehicle rear-ended his. Aillones was treated for his injuries by a nurse practitioner, Alan Swartz, whom Aillones also retained as an nurse expert witness. When Minton objected to a nurse practitioner as an expert witness, Aillones moved to have the trial court qualify Swartz.

The trial court found that a nurse practitioner could not act as an expert witness on causation based on past precedent, specifically Nasser v. St. Vincent Hosp. and Health Services, 926 N.E.2d 43 (Ind. Ct. App. 2010). Nasser, however, was a medical malpractice claim against a hospital where the plaintiff, Nasser, designated evidence including the opinion of a registered nurse.

The nurse had been part of a medical review board with two physicians which had examined the Nasser's claim of malpractice after she was left alone to deliver two stillborn fetuses in her hospital bed. The physicans concluded that the hospital had met the applicable standards of care; the nurse disagreed.

The Appellate Court found that, to counter the opinion of medical providers, Nasser required the expert testimony of another physician, not a registered nurse.

The Appellate Court in this case, however, found a distinction between a registered nurse testifying in medical malpractice matters and a nurse practitioner testifying in a car accident injury claim. As the Court noted, Swartz was a licensed and board certified nurse practitioner with a master's degree, qualified to prescribe legend drugs (prescription drugs) who had seen more than a 100 patients injured in automobile accidents.

While the Court found that Swartz was qualified to testify as an expert witness, it did put limitations on that testimony, holding that Swartz could not testify that Aillones' injuries where "proximately caused" by the accident, but that he could testify that Aillones' injuries were consistent with injuries from an automobile accident. A rather fine line to draw, as the Court admitted.

The Court also noted that, while a nurse practitioner could testify as an expert witness, "issues regarding the comparative level of training and education would go only toward the weight to be given to such evidence." As an example, the Court referenced the case of Bennett v. Richmond, 960 N.E.2d 782 (Ind. 2012), in which Dr. Sheridan McCabe acted as a clinical psychologist expert witness, testifying that the plaintiff had suffered a traumatic brain injury due to a trucking accident.

The defense had objected to McCabe as an expert witness, which the Court denied, finding that he was qualified, but that "questions regarding the adequacy of the psychologist's education and training or the propriety of his examination of the plaintiff's injuries went to the weight and credibility of the witness's testimony, not its admissibility."

These decisions due limit the capacity of non-medical doctors from acting as expert witnesses. As the Court concluded, it is up to attorneys to persuade the jury, in this case, to persuade the jury that the injuries Swartz testified to were were actually caused by the accident.