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COA allows nurse practitioner to testify as expert

May 30, 2017

An Evansville nurse practitioner who has training and licensure beyond that of a nurse, may testify as an expert as to whether a patient’s injuries are consistent with injuries sustained in an automobile accident, but not as to whether the accident caused the injuries, the Indiana Court of Appeals has ruled.

In Charles Aillones v. Glen D. Minton, 82A01-1609-CT-2138, a vehicle driven by Glen Minton struck the vehicle Charles Aillones was driving through Evansville. Aillones was injured and was treated by Alan Swartz, a licensed nurse practitioner in Kentucky and Indiana, for a cervical sprain and lower back pain.

Aillones then filed a negligence action against Minton in December 2013, and during discovery Swartz was deposed and testified Aillones’ injuries were “consistent with a motor vehicle accident.” Minton’s counsel objected to the questioning of Swartz as to the cause of his patient’s injuries, alleging a lack of foundation for Swartz’s opinions.

Aillones then moved to qualify Swartz as an expert witness, which the Vanderburgh Superior Court denied based on the decision in Nasser v. St. Vincent Hospital & Health Services, 926 N.E.2d 43 (Ind. Ct. App. 2010). The trial court certified its denial for interlocutory appeal, and on appeal Aillones argued the trial court erred in concluding Swartz could not testify as an expert witness.

The decision in Nasser held Indiana Evidence Rule 702 prevented nurses from qualifying as experts regarding medical causation, even when they serve on a medical review panel. A similar decision was reached in Long v. Methodist Hospital of Indiana, Inc., 699 N.E.2d 1164 (Ind. Ct. App. 1998).

But Aillones’ case is distinct in that it presents a tort claim, not a medical malpractice claim like in Nasser and Long, Indiana Court of Appeals Judge Paul Mathias wrote Tuesday. Thus, the issue is not whether a medical provider caused a patient’s injuries, but rather whether Aillones’ injuries were caused by a car accident.

Further, Mathias pointed to the decision in Curts v. Miller’s Health Systems, Inc., 972 N.E.2d 966 (Ind. Ct. App. 2012), which held “a nurse could qualify as an expert regarding medical standards of care and causation in some circumstances.” Thus, the question in the case focuses on whether Swartz’s “knowledge, skill, expertise, training or education” is sufficient to testify as a witness.

As a nurse practitioner, Swartz has both a bachelor’s degree in nursing and a master’s degree to be a nurse practitioner, and is licensed to treat patients, interpret lab results, prescribe certain medications and refer patients to occupational and physical therapy. Thus, “Swartz has sufficient knowledge, skill, experience, training or education to testify as an expert witness,” Mathias wrote.

However, because he was not a witness to the accident, Swartz may not testify that Aillones’ injuries were proximately caused by the accident, the appellate panel found. But nevertheless, the nurse practitioner may testify as to whether the injuries were consistent with injuries from an automobile accident, the court said.

The trial court’s order finding Swartz could not testify as an expert was reversed, and the case was remanded for further proceedings.

 

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