Staccato v. Valley Hosp.

• Decision Date: 08 November 2007
• Docket Number: No. 42297.,42297.
• Citation: 170 P.3d 503
• Parties: Nicolaus STACCATO, Appellant, v. VALLEY HOSPITAL, Respondent.
• Court: Nevada Supreme Court

170 P.3d 503

Nicolaus STACCATO, Appellant, v. VALLEY HOSPITAL, Respondent.

No. 42297.

Supreme Court of Nevada.

November 8, 2007.

Law Offices of Richard McKnight, P.C., and Richard McKnight and Erik Severino, Las Vegas, for Appellant.

Cotkin & Collins and Kevin A. Duffis, Las Vegas, for Respondent.

Burris, Thomas & Springberg and Andrew J. Thomas, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association.

Before the Court En Banc.¹

OPINION

PER CURIAM:

At issue in this appeal is whether a physician is qualified to testify as to the proper standard of care in a malpractice action against a nurse when the allegedly negligent act implicates the physician's realm of expertise. We conclude that a physician or other medical care provider is qualified to testify as to the accepted standard of care for a procedure or treatment if the physician's or provider's experience, education, and training establish the expertise necessary to perform the procedure or render the treatment at issue. In so concluding, we clarify that a medical expert witness need not have the same credentials or classification as the defendant medical care provider. Instead, in accordance with Nevada's statutory scheme governing expert witness testimony, and in furtherance of sound public policy, the proper measure for evaluating whether a witness can testify as an expert is whether that witness possesses the skill, knowledge, or experience necessary to perform or render the medical procedure or treatment being challenged as negligent, and whether that witness's opinion will assist the jury.

In this case, the district court entered a directed verdict for the defense after disqualifying appellant's proposed expert witness, an emergency room physician, on the basis that the physician was not qualified to testify against a nurse who allegedly administered an intramuscular injection (a procedure for which the physician sufficiently demonstrated his expertise) in a manner contrary to the acceptable standard of care. Because the district court's decision was based on an incorrect legal standard, we reverse its judgment and remand this matter so that appellant's malpractice action may proceed.

FACTS AND PROCEDURAL HISTORY

Appellant Nicolaus Staccato filed a medical malpractice complaint in the district court against respondent Valley Hospital and an attending physician, who is not a party to this appeal. In his complaint, Staccato asserted that when he was admitted to the Valley Hospital emergency room after seeking treatment for back pain, the attending physician ordered a pain reliever to be administered by injection, after which Staccato strongly protested, informing hospital staff that he feared needles and warning that he would "pass out" if given an injection. Staccato alleged that, although he continued to protest, a nurse instructed him to stand over a gurney while she administered the injection. According to Staccato, the nurse then left him unattended, in a standing position, at which time he lost consciousness and struck his head, resulting in a laceration and a brain injury. During the litigation, Staccato designated Paul Fischer, M.D., an emergency room physician, as a standard-of-care expert witness.

Shortly before trial was scheduled to begin, Valley Hospital deposed Dr. Fischer, who testified that, under ordinary circumstances, administering an intramuscular injection in any position other than supine would fall below the standard of care. According to Dr. Fischer, the hospital's failure to heed Staccato's warnings with regard to his fear of shots, and the nurse's failure to monitor Staccato after administering the shot contributed to Staccato's avoidable accident. Given Staccato's warning, Dr. Fischer continued, administering the shot while Staccato was in an upright position was indefensible. Dr. Fischer ultimately opined that the hospital's task is to monitor nurses and, in this case, the nurse's actions were below the acceptable standard of care. During his deposition, Dr. Fischer acknowledged that he is not a nursing expert.

Subsequently, Valley Hospital filed a motion in limine to preclude Dr. Fischer from testifying about the "nursing standard of care." The district court granted the motion. On the same day, after Staccato conceded that without Dr. Fischer's testimony, he could not carry his burden of proof regarding whether the accepted standard of care was breached, the district court granted Valley Hospital's motion for a directed verdict and entered judgment in Valley Hospital's favor.

Staccato then moved for a new trial, arguing that the district court had improperly precluded Dr. Fischer from testifying.² Valley Hospital opposed the motion, and the district court later entered an order denying Staccato's motion and retaxing Valley Hospital's costs. It also granted Staccato's attorney's motion to withdraw. Staccato then filed this appeal in proper person from the district court's judgment and its order denying his motion for a new trial. He has since retained counsel on appeal.

DISCUSSION

Dr. Fischer's qualifications to administer intramuscular injections

Preliminarily, Staccato argues that as a physician with training and education beyond what nurses receive, Dr. Fischer is qualified to both administer intramuscular injections and to attest to the acceptable standard of care for that procedure, regardless of whether a nurse administered the injection at issue. Valley Hospital concedes that both nurses and physicians may administer intramuscular injections. Nevertheless, it maintains that the existence of a "cross-training between the disciplines does not mean that there is a universal standard of care in performing that procedure."

Since both parties agree that Dr. Fischer has the training, education, and specialized knowledge necessary to administer an intramuscular injection, we now address the more refined issue of whether Dr. Fischer is qualified to testify about the standard of care that a nurse must exercise in administering such an injection.

The parties' arguments regarding Dr. Fischer's qualification to testify against a nurse as a standard-of-care expert

Valley Hospital maintains that, because Dr. Fischer admitted that he was not "an expert in nursing care," he was properly excluded as a witness.³ Pointing to the unique licensing and regulatory scheme governing the nursing profession, Valley Hospital argues that a physician's knowledge about administering intramuscular injections does not qualify the physician to attest to a nurse's approach to such an injection. Thus, just as the nursing profession might not expect nurses to recognize conditions that an emergency room physician is expected to recognize, Valley Hospital posits that the converse is likewise true.

Staccato replies that Valley Hospital's reliance on authority from other jurisdictions adopting a narrow view that an expert must be licensed in the same specialty as the defendant is misplaced because this court has consistently rejected "per se rule[s] of disqualification based on licensure." Instead, Staccato urges that an expert need not specialize in the same area as the defendant as long as their fields of expertise overlap to the extent that they are both trained to perform the procedure at issue. According to Staccato, because physicians are qualified to attest to the standard of care appropriate for intramuscular injections, it would be anomalous to conclude that these same physicians could not offer standard-of-care opinions against nurses on that subject.

Standard of review and legal standards applicable to expert witness qualification

As the parties' arguments center on whether the district court applied the proper legal standard in determining whether Dr. Fischer qualified as an expert medical witness, our plenary review is implicated.⁴ Although the district court has discretion in determining whether a witness is qualified as an expert and whether the witness's testimony is admissible,⁵ the district court abuses its discretion if it applies an incorrect legal standard.⁶ Generally, a plaintiff must present expert medical testimony to establish medical malpractice.⁷ But "[t]here is no requirement that the expert medical witness be from the same specialty as the defendant; the issue is simply one of the witness'[s] actual knowledge."⁸ Indeed, an expert witness need not be licensed to practice in a given field to be considered qualified to testify as an expert.⁹

The appropriate standard of care is governed by the procedure or treatment at issue, not the defendant's practice area or specific license

Here, Valley Hospital relies primarily on Illinois decisional law for its argument that a physician is not qualified to attest to the nursing standard of care.¹⁰ For example, Valley Hospital points to the Illinois Supreme Court's decision in Sullivan v. Edward Hospital, in which the court, indicating that the nursing profession has moved beyond its former dependence on physicians and "into a realm where it must and can legally account for its own professional practices," affirmed a trial court order striking a physician's testimony regarding the standard of care for nurses after concluding that such testimony might result in a higher standard of care being imposed upon the defendant nurse.¹¹

We reject Valley Hospital's argument and the Illinois approach for two reasons. First, in Illinois, expert qualification turns on the particular credentials of the defendant medical caregiver,¹² but in Nevada, expert witness assessment turns on whether the proposed witness's special knowledge, skill, experience, training, or education will assist the jury.¹³ Therefore, a physician or other medical provider is not automatically disqualified from testifying against a defendant who specializes in a different area of medicine or who practices in a different medical discipline.¹⁴ Second, in our view, the Illinois approach is contrary to...