Nursing Standard of Care in Medical Malpractice Litigation: The Role of the Nurse Expert Witness

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1 Nursing Standard of Care in Medical Malpractice Litigation: The Role of the Nurse Expert Witness ElizaBeth Webb Beyer * and Pamela W. Popp ** * Private Practice, Reno, Nevada. B.S.N. 1979, University of Maryland; M.S. 1982, University of Maryland; J.D. 1986, Nevada School of Law. ** Jacobson, Maynard, Tuschman, Kalur, L.P.A., Cincinnati, Ohio. R.N., 1973, Good Samaritan Hospital Cincinnati; B.S.N., 1981, University of Cincinnati; J.D., 1984, College of Law, University of Cincinnati. INTRODUCTION Legislators in nearly every state are alarmed about a medical malpractice crisis. They are holding numerous committee hearings on all aspects of tort reform legislation to determine the particular concerns of physicians, hospitals, and professional liability companies. [n1] Part of this concern arises from the relative inability of health care professionals to prevent frivolous suits and claims from finding their way to the courthouse. One way some states have responded to the concerns of health care providers is to enact legislation restricting those who may offer expert testimony in medical suits, [n2] because almost all claims of medical negligence must be supported by expert testimony. [n3] Unfortunately, few guidelines exist when the issue is the standard of care applicable to professional nurses. This Article will examine the problems faced by both plaintiff and defense when the malpractice case involves nursing care. It is the authors' contention that despite the controversies within the profession, courts and legislature should require nurse expert witnesses to establish nursing standards of care. EXPERT WITNESSES In a medical liability situation, expert witnesses are the core of the case for both plaintiff and defense. Expert witnesses become instructors of medical and scientific facts for the jury; and through exhibits, diagrams, and testimony, the expert helps jurors appreciate the significance of symptoms and treatment. Often, an expert witness is the decisive factor in winning or losing at trial. It is the rare set of circumstances in a modern health care institution which can be appreciated without the benefit of a guiding witness. The federal rules of evidence provide that an expert witness is necessary: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue...." [n4] Experts must be "qualified as an expert by knowledge, skill, experience, training, or education...." [n5] This is the rule which serves as the framework on which experts build a professional liability case for a jury. Additionally, the federal rules of evidence allow court-appointed experts at the request of either party, or on the court's own motion. [n6] In most circumstances, the choice of the expert witness depends upon the type of care being criticized and the profession of those rendering such care. However, in a medical liability case, it appears that often physicians alone occupy the expert witness chair, regardless of the profession of the individual who has rendered the care in question. Therefore, physicians are often called to testify as experts in nursing malpractice cases, even though they are not directly familiar with nursing standards of care. This anomaly may be a consequence of inconsistencies in nurse practice acts and in the educational requirements leading to nursing licensure, as well as other factors which blur the professional lines between nursing and medicine. Physicians have traditionally been regarded as the ones solely responsible for the diagnosis and treatment of the patient. [n7] Although physicians are not the sole members of the health care team, the existence of a hospital hierarchy where physicians typically issue orders, and nurses carry out those orders, is probably responsible for this misconception. Moreover, nursing has had trouble separating itself as a profession apart from the practice of medicine. NURSING -- PROBLEMS IN ESTABLISHING LEGAL CRITERIA FOR THE PROFESSION

2 The confusion begins in educational preparation because there is no consensus within the nursing profession on minimum entry level requirements. [n8] The various educational prerequisites for a nursing license include: a three-year hospital-based program leading to a registered nurse diploma, a two-year collegiate program leading to an associate degree, or a four or five year collegiate program leading to a bachelor's degree in the science of nursing. [n9] Each program qualifies the successful student to sit for the nursing state board examinations and obtain subsequent licensing. [n10] In addition to the basic educational programs, there are masters programs in nursing and subspecialties and state-approved certification programs providing additional recognition of clinical expertise in a subspeciality through written examination. [n11] In recent years the practice of nursing has evolved. Technological and scientific advances in medicine and science have increased the complexity of care, and, given the multiplicity of patient care measures undertaken by nurses, [n12] the risk of their professional liability increases. The type of clinical activities performed by nurses was addressed initially in the development of nurse practice acts; [n13] however, these activities have been expanded to include performance of veni-punctures, initiation of intravenous therapy, and cardio-pulmonary resuscitation. [n14] This trend has continued as reflected in litigation, and now includes the performance of papanicolaou (PAP) smears, as well as the prescribing of medications. [n15] However, despite the acceptance of advanced nursing practice, a major problem remains because present legislation concerning advanced nursing practice lacks nationwide consistency in the method of defining and governing advanced practice. [n16] Approximately forty states address advanced practice by way of rules and regulations; [n17] certification is the predominant method of authorization. [n18] A minority of states require a bachelor's degree as a prerequisite for a nurse practitioner, and a few require a master's degree for clinical specialist practice. [n19] States further compound the distinctions by enacting separate statutes which regulate the practice of nurse-midwifery [n20] and nurse anesthetists. [n21] But a lack of consistency among the states is evident. Some states oversee areas of advanced practice by way of specialty boards containing both physicians and nurses; [n22] while other states place nurse anesthetist and midwife practice under the control of the state medical board. [n23] However, the majority of states now contain the practice of nurse midwives and nurse anesthetists in their nurse practice acts or rules. [n24] Despite controversies within the profession itself, and in the eyes of state legislatures, there can be no doubt that nursing involves a unique set of professional skills, and its practice is not easily understood by a lay person. Certainly, when professional nurses perform these clinical skills as part of their practice, the standards to which they are held should be those of professional nurses performing those functions under the same circumstances. [n25] Statutes separating the practice of nursing from the practice of medicine exist in each state. [n26] However, the use of expert witnesses on the issue of nursing standards of care in professional malpractice suits differs in each state. [n27] Nevertheless, some states include registered nurses in their medical malpractice statutes for purposes of pleading and procedure. [n28] This lack of consistency may be a result of the confusion which surrounds the recognition of nursing as a profession. NURSING STANDARDS AND EXPERT TESTIMONY There is no doubt that nurses owe a duty of care to health care consumers. [n29] The standard for a nurse's conduct in meeting this duty is sometimes measured by the common sense of the jury. The most frequent examples are the "fall out of bed" cases. [n30] Courts have routinely held that no expert testimony is necessary in such circumstances. [n31] However, all of these "simple" occurrences involve the use of nursing judgment as to restraining a patient, assisting a patient in and out of bed, or how closely to monitor a medicated patient. [n32] The likelihood of courts requiring or permitting expert nursing testimony in a case increases with the technical complexity of a case. Jurors are often ill-equipped to evaluate the care required by the plaintiff, and rendered by the nurses, without expert testimony. For instance, where the issues are the potential causes of endotracheal tube blockage, adherence to specific patient care protocols, and proper staff-topatient ratios in an intensive care unit, at least one court held that expert nursing testimony was proper. [n33]

3 Another instance where courts usually require expert testimony is in areas of overlapping professional responsibility, i.e., where the actions of the nurse were or are still performed by physicians as well. [n34] In those cases, involving nurse anesthetists for example, most often the expert witness is a physician, despite the firm establishment of nurse anesthetists within the profession. [n35] In cases where there are separate allegations of negligence, there should be no problem with a court permitting each defendant health care professional the opportunity to present expert witnesses on the standard of care. In fact, a prima facie physician/nursing malpractice case should contain supporting expert testimony in both professional areas in order to avoid summary judgment. The argument is often made that physicians are the only medical experts who can testify in professional liability cases as to the standard of care. In fact, many states have statutes which specifically provide for this. In Ohio, [n36] and in other states as well, [n37] plaintiffs will face exclusion of their nurse experts and be subject to a directed verdict if no physician provides expert testimony. The restriction usually follows from a statutory definition of claims involving hospitals, physicians, and their employees. For example, an Ohio statute includes claims against nurses in its definition of a "medical claim." [n38] Further, the Ohio statute specifies restrictions pertaining to who may testify as to the standard of care in a medical claim; and this statute sets out what requirements he or she must possess in order to be considered competent. [n39] The individual giving expert testimony on the liability issue in a medical claim must be licensed to practice medicine, and spend at least 75 percent of his or her professional time in active clinical practice or teaching in an accredited university. [n40] Restrictions like these are problems because physicians often have no first-hand knowledge of nursing practice except for observations made in patient care settings. The physician rarely, if ever, teaches in a nursing program nor is a physician responsible for content in nursing texts. In many situations, a physician would not be familiar with the standard of care or with nursing policies and procedures which govern the standard of care. Therefore, a physician's opinions would not be admissible in jurisdictions which hold the expert must be familiar with the standard of care in order to testify as an expert. [n41] An example of a common situation which gives rise to allegations of nursing negligence occurs when a nurse fails to follow the institutional "chain of command" in reporting a patient condition to a physician who subsequently refuses to attend to the patient condition. [n42] It is unlikely that a physician would be familiar with the policy and procedure involved in handling such a situation. It is as illogical for physicians to testify on nursing standard of care as it would be for nurses to testify about medical malpractice. [n43] Nevertheless, statutes like the one in Ohio, are used successfully to prohibit nursing experts from assisting juries in determining whether nurses have met the standard of care. In light of expanded corporate liability for hospitals based on proper utilization of administrative procedures to secure a physician's presence, this issue and who should provide the appropriate testimony will become crucial. The practice of professional nursing has become increasingly complex as medical and technical advances in science, medicine, and health care occur, and as the average life expectancy increases. With the development of subspecialization and advanced practice in nursing comes greater expectations of the health care consumer and a greater need for nurse experts to define the standard of care. In all states, legislation addresses the practice of professional nursing in exact terms, providing a solid legal basis for the profession. [n44] These statutes support the argument for nurse expert witnesses on nursing standards of care. Where professional malpractice statutes include registered nurses within the group of professionals entitled to a special statute of limitations, [n45] it can be argued that the same pleading requirements and expert witness requirements apply. For example, some states require plaintiffs to review a case with an expert who can testify prior to filing the suit, and require counsel to attach evidence of that review with the complaint. [n46] Where the allegations are of nursing negligence, that affidavit should be one of a professional nurse. Often, however, the pleading requirement is ambiguous, and courts often defer to the legislature, holding that the affidavit must be that of a physician. [n47] There is an independence in exercising judgment and making decisions which, when recognized, increases the accountability of the professional nurse. The public holds professionals to those standards and will naturally use the professional negligence malpractice suit when it appears that there has been a nursing failure which has caused harm to a consumer. The necessity for professional nurses to carry separate liability insurance is an issue which exceeds the scope of this Article. [n48] However, the

4 existence of separate professional nursing insurance coverage is a factor which can be used to bolster the separate profession argument. Perhaps the leading case recognizing a separate standard of care for professional nurses is a decision by the California Supreme Court in Fein v. Permanente Medical Group. [n49] In Fein, a family nurse practitioner examined a man who complained of chest pain. The nurse practitioner consulted the responsible physician who diagnosed muscle spasm, and sent the patient home. The following day, the patient went to an emergency room where he was examined by a physician, and again was told he had muscle spasms. On the third day, the patient was diagnosed as having a myocardial infarction. The patient brought a medical malpractice suit. After judgment for the patient, the nurse practitioner appealed alleging the trial court committed reversible error in its instruction on the duty of care of a nurse practitioner. [n50] The lower court had told the jury that "the standard of care required of a nurse practitioner is that of a physician and surgeon... when the nurse practitioner is examining a patient or making a diagnosis." [n51] The court held the instruction was inconsistent with California legislation specifically related to nurse practitioners and concluded that as long as the legislative standards of education for nurse practitioners were met, a nurse practitioner was to be judged by the standard of care applied to a reasonably prudent nurse practitioner in conducting the examination and prescribing the treatment "in conjunction with her supervising physician." [n52] The court also held that the nurse was entitled to a jury instruction to that effect, but the erroneous instruction did not warrant reversal. [n53] Fein forms the basis for a modern and practical trend of holding professional nurses to a reasonable standard of nursing care. [n54] SELECTION OF NURSE EXPERT How should a nurse expert be selected? One must look for a combination of clinical experience and academic prowess. The determination of whether a nurse is qualified as an expert depends on the discretion of the trial court. This standard was outlined in Wood v. Rowland: [n55] An expert is one who has superior knowledge of a subject and is therefore, able to afford the tribunal having the matter under consideration a special assistance and his knowledge may have been acquired by professional, scientific or technical training or by practical experience in some field of human activity, conferring on him an especial knowledge not shared by men in general. [n56] The court in Wood compared the testimony of a nurse expert to that of a physician expert. The lower court had refused to qualify the nurse as an expert because she had only worked in one hospital and its policies may have differed from those in question. The lower court further observed that physicians are allowed to testify as to the standards of care in hospitals in general. [n57] The appellate court refused to allow this distinction and concluded that the nurse expert was qualified to testify as to professional nursing standards. The court noted that the profession of nursing is highly regulated and thus, a nurse should be held to the standard of care of a reasonable nurse professional. [n58] Where a nurse expert is required, it is helpful to have one who is employed in the same area as the defendant nurse, and who has the same background and educational experience. Additional expertise, such as certification or research experience, is also important. In any trial, the most effective expert witness has good communication skills, [n59] a natural ability to educate the jury, and aesthetic appeal. Depending on the case, an expert who is well-versed in hospital nursing policies and procedures, and one who has developed policies and procedures might be the best witness. When selecting a nurse expert, as with a physician expert, it is also helpful to review publications by the potential witness, including both textbook and journal articles. Professional nursing associations and specialty groups often have compendiums of nurse experts who are available to review cases for plaintiff or defendant. [n60] CONCLUSION AND RECOMMENDATIONS As nursing liability increases, so does the importance of nurse expert witnesses establishing the applicable standard of care. Currently, there are obstacles to the use of nurse experts in both state statutes and judicial interpretations in the rules of evidence. Therefore the proper preparation in a nursing liability case must include an analysis based on the relevant state law. Thereafter, attention should be given to the use of pretrial motions addressing the issue of expert exclusion. A persuasive argument for the use of nursing experts may include:

5 * citation to the state professional nursing statute or advanced nursing practice statute to establish the concept of nursing as a separate profession; * use of particular facts of the case, such as certification in a nursing sub-specialty or existence of individual professional liability coverage, to further enhance separate profession concept; * if applicable, citation to the state malpractice statute which includes professional nurses as a group entitled to the protection of special statutes of limitation, pleading requirements, expert competency requirements, and pre-suit affidavit requirements; * citation to the rules of evidence requiring that matters not comprehensible by lay people necessitates expert witnesses to assist the trier of fact; * any relevant local judicial opinion, and reference to the important decisions rendered in Fein v. Permanente, [n61] as a starting point, and Wood v. Rowland; [n62] * rebuttal of physician testimony on the grounds of lack of familiarity with the standard of care, and no personal experience with the issue; and * use of both physician and nursing experts if the case has allegations of medical and nursing negligence. Where current statutes provide obstacles to admission of testimony of some experts in cases alleging nursing malpractice, necessary changes in state statutes should be made. State nurse associations and the American Nurses Association should consider lobbying for appropriate amendments to state evidentiary rules of evidence and state malpractice statutes to achieve this result. REFERENCE: [n1.] See generally Robinson, The Medical Malpractice Crisis of the 1970s: A Retrospective, 17 L. & CONTEMP. PROBS. 8 (1986). [n2.] See, e.g., MD. HEALTH ACC. CODE ANN. 3-2a-04 (B)(4) (1976) (attesting expert may not devote more than 20% annually of his or her professional activities to directly involve testimony in personal injury claims). [n3.] See generally C. NORTHROP & M. KELLY, LEGAL ISSUES IN NURSING (1987) (citing Hiatt v. Groce, 215 KAN. 14, 19, 523 P.2d 320, 325 (1974) (court required expert testimony in an action where plaintiff alleged a nurse failed to notify physician of plaintiff's imminent delivery); contra Jones v. Hawkes Hosp. of Mt. Carmel, 175 Ohio St. 503, 503, 196 N.E.2d 592, 593 (1964) (court found expert testimony not necessary for an issue concerning a patient fall)). [n4.] FED. R. EVID [n5.] Id. [n6.] FED. R. EVID [n7.] See McConnell v. Williams, 361 Pa. 355, 362, 65 A.2d 243, 248 (1949). McConnell is referred to as the "captain of the ship" case, where the physician has full responsibility for and authority over all personnel. In McConnell, the court held the surgeon, who performed a cesarean section, responsible for the negligence of an intern who put an excessive amount of silver nitrate into the infant's eyes, causing severe injury. [n8.] See Comment, The Use of Nurses As Expert Witnesses, 19 HOUS. L. REV (1982). [n9.] Id. [n10.] See generally B. KOZIER & G. ERB, FUNDAMENTALS OF NURSING: CONCEPTS AND PRINCIPLES (1987). See also Bullough, The Current Phase in the Development of Nurse Practice Acts, 28 ST. LOUIS U.L.J. 365, (1984). [n11.] See Bullough, supra note 10, at [n12.] See generally B. KOZIER & G. ERB, supra note 10, at [n13.] See Bullough, supra note 10, at 375.

6 [n14.] See B. KOZIER & G. ERB, supra note 10, at , [n15.] See, e.g., Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. 1983). [n16.] Some states specifically authorize nurse practitioners. See, e.g., CAL. BUS. & PROF. CODE 2834 (West 1990); WASH. REV. CODE ANN (1982). Others recognize clinical specialists in the definition of advanced practice. See, e.g., N.D. CENT. CODE (1989). Some states do not specifically mention advanced practitioners, but have broadened the definition of nursing and have authorized boards of nursing to regulate various types of advanced nursing practice. See, e.g., MD. HEALTH OCC. CODE ANN (f)(2)(vi), (vii) (1986). These are only three approaches state legislatures have taken. For a review of the various approaches see C. NORTHROP & M. KELLY, supra note 3, at 470. See also LABAR, THE REGULATION OF ADVANCED NURSING PRACTICE AS PROVIDED FOR IN NURSING PRACTICE ACT AND ADMINISTRATIVE RULES 1 (1984); Cohn, Prescriptive Authority for Nurses, 12 L., MEDICINE & HEALTH CARE 72 (1984); Rowe, Expanding the Nurse's Role to Diagnosis and Treatment: Understanding the Legal Significance, 37 AM. A. OCCUPATIONAL HEALTH NURSING J. 198 (1989). [n17.] LABAR, supra note 16, at table 1. See, e.g., ALA. CODE (1985); FLA. STAT. ANN (West 1981); MICH. COMP. LAWS ANN (West 1980); NEV. REV. STAT (1987). [n18.] LABAR, supra note 16, at Table 3. See, e.g., ARIZ. REV. STAT. ANN (1986); FLA. STAT. ANN (West Supp. 1990); KAN. STAT. ANN (1985); MD. HEALTH OCC. CODE ANN (Supp. 1990); NEB. REV. STAT (1987); OR. REV. STAT (1989). [n19.] See LABAR, supra note 16, at table 5. Alabama, Idaho, Oregon, and South Carolina require a bachelor's degree for nurse practitioners. Florida, Louisiana, Montana, North Dakota, New Hampshire, and South Carolina require master's degree for clinical nurse specialists. Id. [n20.] LABAR, supra 16, at 81. See, e.g., ARK. STAT. ANN (1987); CAL. BUS. & PROF. CODE (West 1990). [n21.] LABAR, supra note 16, at 61. See, e.g., CAL. BUS. & PROF. CODE (West 1990); LA. REV. STAT. ANN. 37:930 (West 1988); MICH. COMP. LAWS ANN (West 1980). [n22.] See, e.g., CAL. BUS. & PROF. CODE 2836 (West 1990); UTAH CODE ANN a-3 (1990). [n23.] See, e.g., IND. CODE ANN (Burns 1990). [n24.] See supra notes 20, and 21. [n25.] See C. NORTHROP & M. KELLY, supra note 3, at [n26.] See, e.g., NEV. REV. STAT (1987) (nursing); NEV. REV. STAT (1985) (medicine); CAL. BUS. & PROF. CODE 2725 (West 1990) (nursing); CAL. BUS. & PROF. CODE 2051 (West 1990) (medicine); FLA. STAT. ANN (West 1981) (nursing); FLA. STAT. ANN (West 1981) (medicine). [n27.] See, e.g., Sanchez v. Bay General Hosp., 116 Cal. App. 3d 776, 787, 172 Cal. Rptr. 342, 343 (1981) (nursing expert properly allowed to render opinion that patient released from recovery room in satisfactory condition does not normally suffer brain damage and death in the absence of negligence); Hiatt v. Groce, 215 Kan. 14, 14, 523 P.2d 320, 321 (1974) (only those qualified as nursing experts are permitted to testify as to standards of nursing care); Wickliffe v. Sunrise Hosp., 766 P.2d 1322, 1323 (Nev. 1988) (court admitted nursing expert's testimony where lower court refused); ARIZ. REV. STAT. ANN (West Supp. 1989) (professional's standard of care should be measured against standards of his or her profession). Contra Goff v. Doctors General Hosp. of San Jose, 166 Cal. App. 2d 314, 315, 333 P.2d 29, 31 (1958) (court specifically approved physician's testimony on nurse's duty and breach of duty). See generally Comment, supra note 8, at 555. [n28.] See, e.g., OHIO REV. CODE ANN (Page's Supp. 1989).

7 [n29.] See Fraijo v. Hartland Hosp., 99 Cal. App. 3d, 331, 340 n.7, 160 Cal. Rptr. 246, 251 n.7 (1979). [n30.] Cramer v. Theda Clark Memorial Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427, 428 (1969) (court held no need for expert testimony on whether restraints were necessary for a post-operative patient who broke a hip after nurse had loosened his restraints so that he could eat). [n31.] Jones v. Hawkes Hosp. of Mt. Carmel, 175 Ohio St. 503, 196 N.E.2d 592 (1964); Cramer v. Theda Memorial Hosp., 45 Wis. 2d 147, 172 N.W.2d 427 (1969); Johnson v. Grant Hosp., 31 Ohio App. 118, 286 N.E.2d 308, rev'd, 32 Ohio St. 2d 169, 291 N.E.2d 440 (1972); Thorson v. Rosewood General Hosp., 608 S.W.2d 282 (Tex. 1980); Leavitt v. St. Tammany Parish Hosp., 396 So. 2d 406 (La. 1981). [n32.] See B. KOZIER & G. ERB, supra note 10, at , , [n33.] Johnson v. Hermann Hosp., 659 S.W.2d 124, 127 (Tex. 1983). [n34.] McCormick v. Avret, 154 Ga. App. 178, 179, 267 S.E.2d 759, 760, aff'd, 246 Ga. 401, 401, 271 S.E.2d 832, 833 (1980) (court allowed nurse expert testimony on the proper sterile technique for drawing blood, because the procedure was the same in both nursing and medicine). [n35.] See, e.g., Keys v. Mercy Hosp. of New Orleans, 485 So. 2d 514, (La. 1986) (where the court allowed four anesthesiologists to testify as to the standard of care required of an anesthesiologist in an action against a nurse anesthetist). [n36.] OHIO REV. CODE ANN (Page's 1981 & Supp. 1989). [n37.] See, e.g., MICH. COMP. LAWS (West Supp. 1990); W. VA. CODE 55-7B-7 (West Supp. 1990). [n38.] OHIO REV. CODE ANN (D) (Page's Supp. 1989). [n39.] OHIO REV. CODE ANN (Page's 1981 & Supp. 1989). [n40.] Id. [n41.] See, e.g., Capan v. Divine Providence Hosp., 270 Pa. Super. 127, 135, 410 A.2d 1282, (1980) (where court held there was no error in trial court's exclusion of a physician's testimony regarding nursing standards). Contra Harney v. Alexander, 71 N.C. App. 731, 736, 323 S.E. 2d 430, 434 (1984) (where court determined a physician had demonstrated sufficient knowledge of relevant nursing standards of care to be deemed an expert witness). [n42.] See, e.g., Darling v. Charleston Community Memorial Hosp., 33 Ill. 2d 326, 211 N.E.2d 253, cert denied, 383 U.S. 496 (1966). [n43.] See, e.g., Gates v. Dr. Nichol's Sanitqrium, 331 Mo. 754, 764, 55 S.W.2d 424, 428 (1932) (per curiam) (nurse could not testify to physician's alleged negligence in cancer treatment because she had no actual experience in treating cancer, but had only watched the physician do so). [n44.] See supra notes 26, 28 and accompanying text. [n45.] See, e.g., MICH. COMP. LAWS ANN (4) (West Supp. 1990). [n46.] OHIO REV. CODE ANN (C) (Page's Supp. 1989); ILL. REV. STAT. ch. 110, P2-622 (1989). [n47.] Shanks v. Memorial Hosp., 170 Ill. App.3d 736, 740, 525 N.E.2d 177, (1988) (when defendant falls under category of "all other defendants" plaintiff must consult a physician because a registered nurse is not sufficient). [n48.] See generally S. CALLOWAY, NURSING AND THE LAW (1987). [n49.] 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985). [n50.] Id. at 146, 695 P.2d at 671, 211 Cal. Rptr. at 374. [n51.] Id. at 149, 695 P.2d at 673, 211 Cal. Rptr. at 376. [n52.] Id. at 150, 695 P.2d at 674, 211 Cal. Rptr. at 377.

8 [n53.] Id. at 151, 695 P.2d at 675, 211 Cal. Rptr. at 378. [n54.] Two recent cases demonstrate the court's more recent approach to the use and importance of nurse experts regarding the standard of nursing care. See Bramlette v. Charter-Medical-Columbia, 393 S.E.2d 914, 917 (S.C. 1990) (where the court held the exclusion of defendant's undisclosed nurse expert witness and allowance of plaintiff's undisclosed physician expert witness caused defendant to be prejudiced by the exclusion of the evidence); Wickliffe v. Sunrise Hosp., 766 P.2d 1322, 1324 (Nev. 1989) (where the court found the trial court's demeaning remarks regarding the nurse expert to constitute reversible error and remanded the case to a different district court judge). [n55.] 41 Colo. App. 498, 592 P.2d 1332 (1978). [n56.] Id. at 501, 592 P.2d at 1334 (quoting Stone v. People, 157 Colo. 178, 401 P.2d 837 (1965)) (emphasis in original). [n57.] Id. at 501, 592 P.2d at [n58.] Id. at 502, 592 P.2d at [n59.] See C. NORTHROP & M. KELLY, supra note 3, at 528. [n60.] Id. at 532. The Maryland, Massachusetts, Arizona, California, Washington, New Jersey, and New York state nurses' associations have established services for referrals of expert witnesses and consultants to attorneys. Id. [n61.] 38 Cal. 3d 137, 211 Cal. Rptr. 368 (1985). [n62.] 41 Colo. App. 498, 592 P.2d 1332 (1978).

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