Rule 702 provides for the admission of expert opinion testimony if the expert is qualified based upon experience education and training, to give the opinion and the opinion will help the jury resolve an issue in the case.
ARS § 12-2604 adds requirements for expert witnesses offering testimony in claims against health care providers. The statute applies to standard of care testimony in medical malpractice claims ARS § 12-561 et. seq., and claims related to medical care brought pursuant to the Adult Protective Services Act, ARS § 46-451 et. seq. The statute requires the witness offering the testimony, practice in the same specialty as the defendant the testimony relates to. The statute also requires that the expert engage in active clinical practice or teaching in the same specialty area for a majority of the year preceding the conduct which forms the basis of the claims.
The Arizona Court of Appeals and Supreme Court have upheld the constitutionality of ARS § 12-2604 against claims that it violates the separation of powers clause of the Arizona constitution Seisinger v. Seibel, 220 Ariz. 85, 203 P.3d 483 (2009); the antiabrogation clause of Article 18 Section 6 of the Arizona Constitution (Baker v. University Physicians Healthcare, 231 Ariz. 379, 296 P.3d 42 (2013); Equal Protection and Due Process
The cases discussing the application of ARS § 12-2604 describe the step-by-step, orderly method prescribed for contesting an expert’s qualifications. When the expert lacks the statutory qualifications, the trial court is required to give the plaintiff a reasonable time to retain an expert to cure the defect which is identified. Any dismissal should be without prejudice and only after the court has given the party time to cure the defect in the qualifications of the expert. Several cases find an abuse of discretion by the trial court to not grant the plaintiff leave to find another expert. Dismissals with prejudice are not contemplated for failing to comply with the statute at the preliminary affidavit stage of the case. See, e.g. Preston v. Amadei, 238 Ariz. 124, 357 P.3d 159 (App. 2015) (discussing Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 324 (App. 2008); Baker v. University Physicians Healthcare, 231 Ariz. 379, 390, 296 P.3d 42, 53 (2013)
Cornerstone Hospital of Southeast Arizona LLC., v. Marner, 231 Ariz. 67, 290 P.3d 460 (App. 2012) applies the statute to nursing testimony in the context of a claim under the Adult Protective Services Act (APSA), A.R.S. § 46-451 through 46-459.
This is a special action by the facility to challenge the qualifications of plaintiff’s expert to testify about the standard of care of the nurses. This care involves a man who developed pressure ulcers while being cared for at the nursing home. It is a skilled nursing facility
The court of appeals concluded that a registered nurse can testify to the standard of care for RNs, LPNs and certified nursing assistants (CNAs).
We conclude that, as an RN with extensive experience who taught other nurses within the year preceding the period in 2008 during which Billie Jo was hospitalized at Cornerstone, Black is qualified to testify about the standard of care applicable to any RN, LPN, or CNA who was involved in Billie Jo’s care. This conclusion does not thwart the legislative purpose behind § 12-2604 of ensuring ‘that physicians,’ or, in this case, nurses, ‘testifying as experts have sufficient expertise to truly assist the fact-finder on issues of standard of care and proximate causation.’ (citations omitted) 231 Ariz. 67, 230 P.3d 460, (App. 2012).
The Marner court seemingly concluded nursing is an undifferentiated unspecialized profession. It goes on to state than any other result would be absurd:
It would be absurd to conclude that an RN is not qualified to provide expert opinion on the standard of care for professions that require more limited skills than are required of a registered nurse on the ground that the RN is overqualified. As we stated in Lo v. Lee, ‘Courts must, where possible, avoid construing statutes in such a manner as to produce absurd … results.’ (citations omitted) Based on a common-sense interpretation of the statute that effectuates its intended purpose, we conclude that nursing is the ‘health profession’ for purposes of § 12-2604(A)(2), RNs, LPNs, and CNAs are subcategories of that profession, and within the nursing hierarchy, RNs are the most qualified.” Id., 231 Ariz. 67, 230 P.3d 460, (App. 2012).
Marner discusses only a small part of the nursing care conundrum.
Rasor v. Northwest Hospital seems to require the sort of analysis which the Cornerstone Hospital v. Marner court eschews. In Rasor, the court of appeals concluded that a wound care specialist (nurse) and an ICU nurse are different specialty areas within nursing. The court asks the rhetorical question which is repeated in most of these decisions. Was the retained expert practicing as an ICU nurse or teaching ICU nurses most of the time in the year before the conduct in question? No, then she cannot give standard of care opinions about the ICU nurse or a general nurse or anyone other than another wound care specialist.
In a typical hospitalization, a patient may be in a variety of settings at different times. The nurses in each setting may be specialists in different ways. There are ER nurses, medical surgical nurses, ICU nurses, and nurses who work on telemetry units to name just a few. There are nurses who respond to codes on rapid response teams. There are charge nurses, circulating nurses, scrub nurses and probably others. There are shift supervisors, nurse educators, and nurse executives. Asking the rhetorical question about where a given nurse spent most of the time in the year before the incident leads to the conclusion that one expert on the standard of care for each category of nurse would be required.
ARS § 12-2604 is used as a weapon by defendants. While all parties who retain experts to testify on standard of care issues in cases against health care providers must comply with the terms of the statute, it is predominantly plaintiffs who have trouble finding experts to satisfy the statute. None of the cases which discuss the requirements of the statute are appeals by defendants seeking relief from an order striking a defense standard of care expert.
The answer in Rasor, as in all the preceding cases, is allowing the plaintiff to replace the expert who cannot meet the requirements of ARS § 12-2406
That sounds great until you consider the time and money spent on the expert who didn’t qualify and the trip to the court of appeals or Supreme Court to be remanded back to the trial court to start again with a new and statute compliant expert. It is certainly preferable to the dismissal with prejudice. Barry E. Lewin
