On April 27, 2017, by unanimous decision, the Washington Supreme Court held that advanced registered nurse practitioners (ARNPs) are not per se disqualified from providing expert testimony on proximate causation in medical negligence cases. The decision, Frausto v. Yakima HMA, LLC[1], established for the first time that an ARNP may be qualified to testify regarding medical causation if the trial court determines that the ARNP meets the threshold requirements of ER 702. This holding lowers the bar for that expert causation testimony required for plaintiffs to satisfy their burden of proof in medical negligence cases.
A. Facts of the Case
The plaintiff, Rudy Frausto, was a 70-year-old quadriplegic man. After falling ill, he checked into Yakima HMA LLC and was treated for pneumonia. While there, Mr. Frausto developed pressure ulcers (bed sores).
Mr. Frausto later filed suit against the medical center, alleging that the medical center’s employed nurses were negligent in failing to properly move him, turn him, and provide him with an appropriate bed. He further alleged that these failures proximately caused his development of pressure ulcers.
At the trial court level, Yakima HMA filed a motion for summary judgment, asserting that Mr. Frausto was without the expert testimony necessary to demonstrate an issue of material fact sufficient for trial. In response, Mr. Frausto submitted the declaration of an ARNP, opining both that the Yakima HMA nurses fell below the standard of care, and that the breach of standard of care caused Mr. Frausto’s bed sores. The trial court granted the defense motion for summary judgment, finding that the ARNP was qualified to testify as to nursing standard of care, but not as to whether the alleged negligence of the Yakima HMA nurses caused Mr. Frausto’s injuries.
The case was appealed to Division III of the Washington Court of Appeals and was subsequently transferred to the Washington Supreme Court on plaintiff’s motion.
B. Prior Case Law
The Court’s decision in Frausto is set against the backdrop of prior Washington cases that have provided our Courts occasion to consider the role and qualifications of expert witnesses in medical negligence cases.
In a line of prior cases, the Washington Supreme Court held that expert medical testimony will “generally be necessary to establish the standard of care…and most aspects of causation” in medical malpractice cases. (Harris v. Groth)[2] As such, the necessity for a plaintiff to present expert medical testimony on both standard of care and causation in order to satisfy its burden of proof in medical negligence cases is clearly established in our state.
With respect to the qualifications of an expert purporting to provide such medical testimony, the Supreme Court in Harris declined to pronounce that non-physicians are “per se” disqualified from testifying as medical experts in medical malpractice actions.[3] However, the Court cautioned that “whether or not the expert is licensed to practice medicine is certainly an important factor to be taken into account” by the trial court in determining the whether an expert is qualified in any particular case.[4]
More recently, the Supreme Court held in Young v. Key Pharmaceuticals, Inc.[5] that a pharmacist was not competent to testify as to whether physicians breached the standard of care. In so holding, the Court reasoned that allowing testimony by a non-physician regarding physician standard of care “would severely degrade the administration of justice in medical malpractice actions.”[6]
In dictum, the Supreme Court noted in the Young case that a medical degree itself will not always qualify a witness to testify as an expert in a medical malpractice case, a statement that Division III subsequently interpreted as “suggesting a medical degree is a preliminary requirement” in Colwell v. Family Hosp.[7] Division III concluded in Colwell that, although a nurse may be qualified to testify as to the standard of care of nurses, a nurse is nevertheless not qualified to provide causation testimony.[8] That holding was re-affirmed in another Division III case, Davies v. Holy Family Hospital[9], which concluded that the declaration of a nursing expert was insufficient to defeat a summary judgment motion because the nurse was “not competent to testify as to the patient’s cause of death.”[10]
Prior to Frausto, our Supreme Court had not been squarely confronted with the question of whether any category of nurses may be qualified to provide medical causation testimony in medical negligence cases.
C. The Frausto Holding and the Court’s Reasoning
In Frausto, the question presented to the Supreme Court was whether “nurses” may provide medical causation testimony in medical negligence cases. The Court declined the parties’ invitation to decide the issue of whether “nurses” may provide medical causation testimony, and instead considered the more narrow question of whether an ARNP may be qualified to provide such testimony.
In holding in the affirmative, the Court noted that “our legislature has empowered ARNPs to diagnose illnesses and injuries to at least a limited degree.”[11] Interpreting the statutory and administrative schemes governing ARNPs, the Court noted that the “plain language” of such provisions “makes clear that ARNPs, alongside physicians, are health care providers with specialized training allowing for at least some degree of independent medical diagnosis and treatment.” The Court reasoned that, “If an ARNP is qualified to independently diagnose a particular medical condition, it follows that the ARNP may have the requisite expertise under ER 702 to discuss medical causation of that condition.”[12]
In so holding, the Court also appeared to draw a distinction between the qualifications of ARNPs and the qualifications of registered nurses. As the Court reasoned:
Because ARNPs in Washington State receive substantially more education, training, and diagnostic authority than registered nurses, a trial court might find in accordance with ER 702 that a particular ARNP is qualified to testify as an expert regarding causation.[13]
The Court concluded that, whether an ARNP has the requisite specialized knowledge to qualify as an expert on causation in a determination in any particular case is left to the discretion of the trial court considering the requirements of ER 702 and the ARNP’s particular scope of practice and expertise.
D. Implications
Moving forward, plaintiffs may rely on the testimony of ARNPs in cases where they are unable to obtain favorable causation testimony from a qualified physician, or where doing so would be cost-prohibitive. By lowing the bar for expert causation testimony sufficient to satisfy a plaintiff’s burden of proof on medical negligence cases, the Frausto holding may allow more plaintiffs to overcome defense summary judgment motions. The potentially cheaper pool of experts now available to plaintiffs may also allow plaintiffs’ attorneys to pursue additional, smaller cases. In the Frausto case itself, for example, the plaintiff’s retained ARNP provided standard of care testimony sufficient to demonstrate an issue of material fact on that element of his medical negligence claim. The Frausto holding allows the plaintiff to rely on the testimony of the ARNP to establish an issue of material fact as to medical causation as well, relieving him of the cost burden associated with obtaining the separate testimony of a physician.
It is notable, however, that the Court’s reasoning in Frausto appears to draw a bright line between physicians and ARNPs who are qualified to make medical diagnoses, on the one hand; and registered nurses and other health care professionals not qualified to make medical diagnoses, on the other hand. By allowing medical causation testimony only by the former, the Court has provided helpful rationale for defendants to rely on in arguing that professionals not empowered to make medical diagnoses remain per se disqualified from providing medical causation testimony.
E. Conclusion
This client alert was authored by BB&L attorney Rhianna M. Fronapfel. Ms. Fronapfel drafted the Washington Supreme Court amicus curiae brief on behalf of the Washington Defense Trial Lawyers (WDTL) in the Frausto case, arguing that any holding expanding the class of individuals potentially qualified to opine as to medical causation issues should not extend so far as to include registered nurses and other health care professionals not qualified to make medical diagnoses.
If you have questions about this client alert or related topics, please feel free to contact either of the attorneys below:
Rhianna Fronapfel (rfronapfel@bbllaw.com)
Mike Madden (mmadden@bbllaw.com)
[1] 118 Wn.2d 227, 393 P.3d 776 (2017).
[2] 99 Wn.2d 438, 450, 663 P.2d 113 (1983). See also Berger v. Sonneland, 144 Wn.2d 91, 110-11, 26 P.3d 257 (2001) (“medical testimony on proximate cause is required in medical malpractice cases.”); Reese v. Stroh, 128 Wn.2d 300, 308, 907 P.2d 282 (1995) (same).
[3] Harris, 99 Wn.2d at 450-51.
[4] Id.
[5] 112 Wn.2d 216, 230-31, 770 P.2d 182 (1989).
[6] Id. at 227.
[7] 105 Wn. App. 606, 612, 15 P.3d 210 (2001).
[8] Colwell, 105 Wn. App. at 611-13.
[9] 144 Wn. App. 483, 183 P.3d 283 (2008).
[10] Id. at 500-01.
[11] Frausto, 118 Wn.2d at 234.
[12] Id.
[13] Id. at 238.