Opinion
No. CV 02 0391472 S
March 15, 2006
MEMORANDUM OF DECISION MOTIONS IN LIMINE #238 241
The plaintiff has filed this medical malpractice action against Harold Abrams, M.D., Fairfield County Surgical Associates, P.C. and Bridgeport Hospital. The plaintiff's claims arise out of the care and treatment rendered to him by Dr. Abrams and the Bridgeport Hospital. The defendants have filed motions in limine to preclude testimony by the plaintiff's expert witness Dr. Thomas Godar for the reasons that Dr. Godar is not a similar health care provider to the defendants as defined by General Statutes § 52-184c. Section 52-184c reads as follows:
(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider."
(d) Any health care provider may testify as an expert in any action if he: (1) Is a "similar health care provider" pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
The defendant Dr. Abrams is a surgeon who is Board Certified in the filed of General Surgery. As such, Abrams claims that a "similar health care provider to him is a physician who is trained and experienced in the same specialty, and is one who is Board certified in the same specialty. Abrams argues that the expert witness Dr. Godar who is a Board Certified specialist in pulmonary medicine and internal medicine, specializing in diseases of the lungs, is not qualified to provide an expert opinion as to Dr. Abrams care and treatment of the plaintiff. The defendant Bridgeport Hospital joins in this claim of Dr. Abrams as it pertains to the residents and physicians employed by Bridgeport Hospital.
The plaintiff's claims against the Bridgeport Hospital are as to the Hospital, its servants, agents and/or employees. And that "they" failed to exercise the degree of skill and care ordinarily and customarily employed by hospitals and other treating institutions in one or more ways alleged in the second amended complaint.
The defendant Bridgeport Hospital argues that the allegations of the second amended complaint encompass duties supervised and monitored by the defendant hospital's staff, employees and agents, namely nursing personnel. The hospital alleges that there are no allegations against any doctor employed by the Bridgeport Hospital, and accordingly, any expert opinion rendered in this case must be made by someone who can be identified as an expert in the field of nursing and not a pulmonologist specializing in lung diseases.
The plaintiff argues that Dr. Godar is a similar health care provider pursuant to § 52-184c(d)(2), as to both defendant Abrams and defendant Bridgeport Hospital. The plaintiff sets forth that Godar is board certified in internal medicine and pulmonary medicine. He was actively engaged in the practice and teaching of medicine within the five years preceding the year 2000, which is the year of the alleged medical negligence. He was actively engaged in the teaching of medical students at the University of Connecticut Medical School and residents and house staff (first, second and third year residents, postmedical school graduation) at St. Francis Hospital, regarding the diagnosis and treatment of deep vein thrombosis (DVT) and pulmonary emboli (PE) in the postsurgical patient and in the patient admitted to a community based hospital.
Dr. Godar testified that the principles associated with recognizing the signs and symptoms of deep vein thrombosis and pulmonary emboli and the treatment of these conditions crosses all medical disciplines, hence the requirement to teach those principles to second and third year medical "students and to "residents."
The plaintiff has represented that he intends to elicit an exert opinion from Dr. Godar regarding the standard of care. As foundation for that testimony, the plaintiff intends to question Dr. Godar as to his knowledge of the following standards of care which are relevant to the issues in this case:
(1) Are you familiar with the standard of care during the year 2000 of a general surgeon in connection with the diagnosis and treatment of DVT and PE in a post-operative patient, and
(2) Are you familiar with the standard of care during the year 2000 of the residents and house staff (hospital based physicians employed by the hospital) of a community hospital such as Bridgeport Hospital in connection wit the diagnosis and treatment of a DVT and PE in a post-operative patient admitted to the hospital for observation.
I SUMMARY OF THE PLAINTIFF'S ALLEGATIONS
A summary of the plaintiff's Second Amended Complaint dated August 8, 2002 reveals that the plaintiff alleges that on July 11, 2000, while under the care of Dr. Harold Abrams and Fairfield County Surgical Associates he was admitted to the Bridgeport Hospital for the surgical repair of a large right incarcerated inguinal scrotal hernia, and that the surgery was performed by Dr. Abrams.
The plaintiff was scheduled for discharge from the hospital on the following day, July 12, 2000, however, prior to his discharge he experienced difficulty in breathing with an acute shortness of breath. Due to the onset of breathing problems and shortness of breath, the nurse at Bridgeport Hospital administered oxygen by nasal cannulas and allegedly made Dr. Abrams aware of the decision. The plaintiff further alleges that Dr. Abrams advised a later discharge of the plaintiff on the same date. Thereafter, the plaintiff was discharged on July 12, 2000 with no additional treatment and apparent instructions to see Dr. Abrams at his office, which the plaintiff did on July 18, 2000.
On July 17, 2000, prior to this office visit, the plaintiff called Dr. Abrams's office indicating he had a fever. At the evaluation by Dr. Abrams on July 18, 2000, the plaintiff was found to have a fever, and scrotal swelling. The scrotum was aspirated with the removal of old blood, and the plaintiff was placed on an antibiotic. The plaintiff was seen by Dr. Abrams again on July 28, 2000, and again old blood was aspirated from the scrotum. At that visit the plaintiff allegedly informed Dr. Abrams of a stiff right leg and constant pain behind the right knee. On the following day, July 29 2000, the plaintiff's right leg and foot were swollen and bright red in color. The plaintiff called Dr. Abrams and informed him of this information. Dr. Abrams then informed the plaintiff of the possibility of a blood clot in the plaintiff's right leg and advised the plaintiff to proceed to the Emergency Room of the Bridgeport Hospital, as soon as possible.
On July 29, 2000, the plaintiff was transported to the Bridgeport Hospital by ambulance, where a doppler ultrasound confirmed the presence of deep vein thrombosis in the fight venous system. The plaintiff was admitted to the Bridgeport Hospital on the same day for treatment, including anticoagulation therapy. He remained in Bridgeport Hospital until his discharge on August 4, 2000. On August 21, 2000 a doppler ultrasound evaluation of the right lower extremity revealed extensive right femoral deep vein thrombosis with occlusion of the common femoral, superficial femoral and popliteal veins, with extensional thrombus into the tibia vessels. Subsequent pulmonary evaluations and diagnostic testing revealed the presence of old scarring resulting from small pulmonary infarcts.
The plaintiff alleges that Dr. Abrams and Fairfield County Surgical Associates, P.C. and its agents and/or employees failed to exercise the degree of skill and care ordinarily and customarily used by surgeons in all of the circumstances existing then and there in that they:
a. Failed to adequately and properly care for, treat, monitor and supervise the plaintiff;
b. Failed to adequately and properly assess the plaintiff's physical findings;
c. Failed to take necessary and prudent preoperative and postoperative steps and procedures to prevent or detect thromboembolism after surgery;
d. Failed to evaluate the plaintiff for pulmonary infarcts or detect thromboembolism subsequent to the plaintiff receiving oxygen and prior to his discharge;
e. Failed to consider deep venous thrombosis as a diagnosis associated with the acute onset of dyspnea and plaintiff's level of hypoxemia;
f. Failed to consider an acute pulmonary embolism as a diagnosis associated with the acute onset of dyspnea and plaintiff's level of hypoxemia;
g. Failed to make any further efforts to establish the etiology of his complaints to rule out pulmonary embolism because of its immediate post-operative occurrence;
h. Failed to re-evaluate the plaintiff and request consultation advice;
i. Failed to determine if the plaintiff had pulmonary embolization or deep venous thrombosis in light of the post-operative episode of July 12, 2000;
j. Failed to examine or reevaluate the plaintiff after the finding of hypoxemia were reported by the nurse and the administration of oxygen and gave instructions for a delayed discharge without any evaluations of the plaintiff, James Markland;
k. Failed to provide proper or reasonable post-operative care by way of compression stockings, advice to ambulate, and anti-coagulation post-surgery;
l. Failed to perform direct physical examinations of the plaintiff or to employ diagnostic evaluations;
m. Failed to evaluate or examine the right lower extremity or evaluate the plaintiff for deep venous thrombosis in the follow-up visit on July 18, 2000, one week after the surgery;
n. Failed to consider the diagnosis of deep venous thrombosis at the follow up visit on July 28, 2000 despite the plaintiff's complaints of a stiff leg and stiffness behind the knee although the defendants knew or in the reasonable exercise of reasonable care should have known that these symptoms were an indication of deep venous thrombosis;
CT Page 5320
p. Failed to make an earlier diagnosis of deep venous thrombosis through consultation and diagnostic testing when such earlier diagnosis would have halted the progression of the clot, could have resulted in some reversal of the clot process with coagulation and supplemental therapy.
As a result of the alleged negligence of Dr. Abrams and the Fairfield County Surgical Associates, P.C., the plaintiff has claimed damages for injuries, some of which may be permanent in nature, lost earning capacity and other various claims.
As to the defendant Bridgeport Hospital, the plaintiff claims that the hospital, its servants, agents and/or employees failed to exercise the degree of skill and care ordinarily and customarily employed by hospitals and other treating institutions in one or more of the following respects:
a. Failed to adequately and properly care for, treat, monitor and supervise the plaintiff;
b. Failed to adequately and properly assess the plaintiff's physical findings;
c. Failed to take necessary and prudent preoperative and postoperative steps and procedures to prevent or detect thromboembolism after surgery;
d. Failed to evaluate the plaintiff for pulmonary infarcts or detect thromboembolism subsequent to the plaintiff receiving oxygen and prior to his discharge;
e. Failed to consider deep venous thrombosis as a diagnosis associated with the acute onset of dyspnea and plaintiff's level of hypoxemia;
f. Failed to consider an acute pulmonary embolism as a diagnosis associated with the acute onset of dyspnea and plaintiff's level of hypoxemia;
g. Failed to make any further efforts to establish the etiology of his complaints to rule out pulmonary embolism because of its immediate postoperative occurrence;
h. In that they failed to obtain consultation advice from other staff and physicians;
i. In that they failed to determine if the plaintiff has pulmonary embolization or deep venous thrombosis in light of the unexplained post-operative episode of July 12, 2000;
j. Failed to examine or reevaluate the plaintiff after the finding of hypoxemia was reported by the nurse of the defendant Bridgeport Hospital and the administration of oxygen and discharged the plaintiff on July 12, 2000 without any such consultation or evaluation of the plaintiff, James Markland;
k. Failed to provide proper or reasonable postoperative care by way of compression stockings, advice to ambulate, and anti-coagulation postsurgery;
l. Failed to perform direct physical examinations of the plaintiff or to employ diagnostic evaluations;
m. In that they failed to follow the protocols for the management of acute events and discharged the plaintiff before he could be considered stable.
The plaintiff also claims damages against the Bridgeport Hospital for injuries, some of which may be permanent in nature, lost earning capacity and other various claims.
II THE LAW
"[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury." (Internal quotation marks omitted.) Farrell v. Bass, 90 Conn.App. 804, 811, 879 A.2d 516 (2005); Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002). "Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons." Id. 812, quoting, Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).
"There are no precise facts that must be proved before an expert's opinion may be received in evidence . . . Rather, it is largely a matter of judicial discretion as to whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion." (Citation omitted; internal quotation marks omitted.) Friedman v. Meriden Orthopedic Group, 77 Conn.App. 307, 312 (2003) 823 A.2d 364; Hammer v. Mount Sinai Hospital, 25 Conn.App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).
"The professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." Friedman v. Meriden Orthopedic Group, supra, 77 Conn.App. 315; see also, Marshall v. Yale Podiatry Group, 5 Conn.App. 5, 7, 496 A.2d 529 (1985) (standard of care for surgeons is that of those in same general neighborhood and in same general line of practice which they ordinarily exercise in similar cases).
"The legislative history of § 52-184c fails to provide us with further context for the plain meaning of the statute. However, the purpose and policy underlying the statute was to codify who might testify on the prevailing professional standard of care in actions against health care providers. The statute's title and contents are directed solely to that subject matter. Subdivision (2) of § 52-184c(d) seems to deal with situations where specialties overlap, provided the party offering the witness' testimony establishes to the satisfaction of the court that he possesses sufficient training, experience and knowledge . . . in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine . . . General Statutes § 52-184c(d)(2) . . . Our case law has recognized that there are overlaps where artificial lines that demarcate one specialty from another dissolve when certain procedures or diagnoses are involved.
(Internal quotation marks omitted.) Friedman v. Meriden Orthopedic Group, supra 316-17, see also, Marshall v. Hartford Hospital, 65 Conn.App. 738, 758, 783 A.2d 1085, cert. denied, 258 Conn. 938, 786 A.2d 425 (2001).
"The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards, and not to the standards of the witness' particular specialty if it differs from that of the defendant . . . [T]he crucial question is whether . . . [the expert] knows what . . . [the standards of practice] are." (Citations omitted; emphasis added; internal quotation marks omitted.) Pool v. Bell, 209 Conn. 536, 542, 551 A.2d 1254 (1989).
General Statutes § 52-184c does not require experts to have gained their knowledge by any particular method, such as from practice or experience, nor at any particular time. Grondin v. Curi, 262 Conn. 637, 655-56, 817 A.2d 61 (2003). The minimum standards set forth in § 52-184c have done nothing to abrogate the fundamental requirement, which was explained in detail in the "crucial question" in Fitzmaurice v. Flynn, 167 Conn. 609, 617-18, 356 A.2d 887 (1975), that an expert testifying about the standard of care must know what that standard is in a particular situation. Medical expert witnesses have long been permitted to acquire their knowledge of the applicable standard of care via study as well as by experience. Grondin v. Curi, supra, 655-56, see, e.g., Pool v. Bell, supra, 209 Conn. 542.
There are many Connecticut cases that adhere to the liberalization of evidentiary rules allowing expert medical testimony in a medical malpractice action when there is a similarity of practice. See, e.g., Pool v. Bell, 209 Conn. supra, 542-43; Katsetos v. Nolan, 170 Conn. 637, 646-47, 368 A.2d 172 (1976); Fitzmaurice v. Flynn, supra, 167 Conn. 618; Marshall v. Yale Podiatry Group, supra, 5 Conn.App. 7-12. "Medical specialties overlap, and it is within a court's discretion to consider that fact in exercising its discretion to deem the witness qualified to testify. It is not the artificial classification of a witness by title that governs the admissibility of the testimony, but the scope of the witness's knowledge of the particular condition." Marshall v. Hartford Hospital, supra, 758.
III DR. GODAR'S TESTIMONY RE DR. ABRAMS AND THE HOUSE PHYSICIANS AND RESIDENTS OF BRIDGEPORT HOSPITAL
The defendant Abrams argument regarding Dr. Godar is based on the premise that Dr. Godar is a Board Certified specialist in pulmonary medicine and internal medicine, where Dr. Abrams is a surgeon who is Board Certified in General Surgery. Therefore, the defendant Abrams concludes that Dr. Godar is not qualified to provide an expert opinion in this case as to Dr. Abrams's care and treatment of the plaintiff Markland, as Godar is not a "similar health care provider" to Abrams.
The defendant Abrams continues that other than possible limited experience during his internship, Godar has never practiced surgery and has not been present during a surgical procedure performed by another physician in the last fifteen years. Thus, Godar cannot testify as an expert as to Abrams care and treatment of the plaintiff as he does not possess "sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of' medicine." As well, Godar does not have training experience or knowledge as a result of the active involvement in the practice or teaching of surgery within the five-year period before the incident giving rise to the claim, pursuant to § 52-184c(d).
The court disagrees with the position of the defendant Abrams. The court in Friedman v. Meriden Orthopedic Group, P.C., supra at 317-18, acknowledged that our Supreme Court in Pool v. Bell, supra, 209 Conn. 542 has addressed the situation where a physician in one specialty is called to testify as to the professional standard of care of another specialty. Dr. Godar does demonstrate a knowledge acquired from experience or study of standards of the specialty of Dr. Abrams, a general surgeon and the hospital's staff (physicians and residents) when it comes to the subject matter of the development of a deep vein thrombosis and pulmonary emboli. This knowledge and experience enables him to render an expert opinion as to the conformity of the conduct of Dr. Abrams and the house staff to those particular standards. See Pool v. Bell, supra 542.
Dr. Godar teaches the principles on which he will be asked to opine to second and third year medical students and first, second and third year residents and house staff upon their graduation from medical school and their clinical rotations through the hospital. He is qualified in the principles involving the recognition and treatment of DVT and PE and has testified that these principles are basic and are taught to all medical students and residents, as they cross all medical fields. See Marshall v. Hartford Hospital, supra, 65 Conn.App. 758 (medical specialties overlap and it is not the artificial classification of a witness by title that governs the admissibility of the testimony.)
The court finds that Dr. Godar is qualified to testify regarding the conduct of Dr. Abrams and those residents and physicians (house staff) employed by the Bridgeport Hospital. Dr. Godar is a "similar health care provider" as defined in General Statutes § 54-182c. The court addresses the question as to whether Dr. Godar can offer testimony and render an expert opinion as to the standard of care for nurses at the defendant Bridgeport Hospital in the next section of this opinion.
IV DR GODAR'S TESTMONY RE: BRIDGEPORT HOSPITAL'S NURSES
The defendant Bridgeport Hospital seeks to preclude Dr. Godar's testimony at trial for similar reasons as Dr. Abrams. The hospital directs the court's attention to General Statutes § 52-184c(b) and (c). The hospital argues that Dr. Godar is a pulmonologist specializing in diseases of the lungs and there are no allegations against any doctor employed by the hospital. Rather the plaintiff's allegations are directed toward the hospital's staff, employees and agents, namely nursing personnel. Thus, any qualified expert opinion rendered against the hospital in this case must be made by someone who can be identified as an expert in the field of nursing practice, not lung diseases.
In support of its argument the hospital sets forth that the plaintiff has disclosed Dr. Godar as an expert and that he would testify as to causation and the hospital standard of care owed to/an "obese hypertensive male of the plaintiff's age, with a right inguinal hernia that required surgical treatment." Godar is expected to also testify about the duty of care owed to the plaintiff by the hospital and its staff and by the attending physician upon the occurrence of dyspnea and hypoxemia. The defendant states that Dr. Godar's deposition testimony of August 23, 2003 reveals that Godar did not have any criticism of the care and treatment rendered by the hospital. At a subsequent deposition on May 26, 2005, Godar stated that his only criticism of the nursing staff and the dendant hospital was the nursing staff's failure to document in the medical record the name of the physician the staff spoke to prior to the plaintiff's discharge following his surgery. Godar conceded at this deposition that such failure to document did not cause the plaintiff's alleged injuries.
The hospital argues that doctors and nurses are not "similar health care providers." Obviously Godar is not licensed to practice nursing and has not attended nursing school. The hospital argues that while he may be familiar with nursing practices, § 52-184c(b) requires that the similar health care provider be licensed by the appropriate regulatory agency and that Godar be trained in the same discipline, and he is neither. Godar also does not possess training, experience and knowledge as a result of practice and teaching in a related field of medicine, as he is a specialist in diseases of the lungs and not a vascular surgeon. Accordingly, the defendant concludes that Godar is not qualified to testify as to the standard of care of a nurse and his testimony should be precluded.
Bearing in mind General Statutes § 52-184c and the aforementioned Connecticut appellate decisions cited herein, the court has reviewed several out-of-state cases regarding the standard of care for the nursing profession that have been brought to the court's attention by the defendant Bridgeport Hospital and finds the cases instructive.
Garley v. Columbia LaGrange Memorial, 351 Ill.App.3d 398, 407, 813 N.E.2d 1030 (2004), involved a death resulting from a deep venous thrombosis and a pulmonary embolism. Mrs. Garley was admitted to the Hospital, where she was to undergo several abdominal surgeries lasting approximately three hours. Though the length of the surgery, her weight, and her age placed Mrs. Garley at risk for developing a deep vein thrombus (DVT) or blood clot, no anti-clotting device or medication was utilized or suggested during surgery. After surgery was completed at 1:30 p.m., a doctor ordered that Mrs. Garley be "ambulated with assistance" to decrease the risk that a DVT might develop. According to hospital records, a nurse unsuccessfully attempted to walk Mrs. Garley at 4:36 p.m., approximately three hours after surgery. Mrs. Garley was not ambulated on April 28.
At approximately 11 a.m., on April 29, Mrs. Garley was walked for the first time to a chair in her hospital room. Later, at 2:17 p.m., she was walked an undisclosed distance with the use of a walker. At 7:19 p.m., she was walked a distance of 0 to 10 feet, but could not tolerate any further ambulation. On April 30, at approximately 4 p.m., Mrs. Garley again ambulated from 0 to 10 feet. At 8:33 p.m., while Nurse Linda Trotta was ambulating her, Mrs. Garley collapsed and died shortly thereafter.
At trial, a forensic pathologist and assistant medical examiner testified that Mrs. Garley died of a pulmonary embolism. She testified that Mrs. Garley developed a DVT, which dislodged and traveled through her bloodstream, blocking her pulmonary arteries. Based upon her finding that Mrs. Garley's left thigh and calf were larger than her right thigh and calf, she believed the DVT developed in her lower left extremity. She could not determine, however, when the clot formed or whether the clot formed above or below her knee. She also testified that she did not believe that the DVT formed in Mrs. Garley's pelvis because "no pelvic veins were thrombosed."
Three experts testified on behalf of plaintiff, none of whom were licensed nurses. A board-certified obstetrician-gynecologist, who also taught third year medical students testified that Mrs. Garley died as a result of a blood clot. He characterized Mrs. Garley as having a moderate risk of developing such a clot based upon her age and weight and the length of the surgery. The doctor testified that, based upon his experience working with nurses, he was familiar with "the standard of care applicable to nurses who perform postoperative care on patients who have undergone surgeries" similar to those performed on Mrs. Garley. He stated that, because no anti-clotting measures were utilized during surgery, she should have been ambulated within 12 hours of surgery. He testified that the Hospital nursing staff fell below the standard of care when they failed to ambulate Mrs. Garley in a timely fashion and that their failure to do so contributed to her death. Id., 400-01.
A second doctor, testified in behalf of the plaintiff. He was also an obstetrician-gynecologist, who had published several articles relating to blood clots and also taught both residents and nurses. He testified that Mrs. Garley died as a result of a DVT which developed some time after surgery. He stated that, based upon his experience working with nurses, the nurses' conduct in caring for Mrs. Garley did not meet the requisite standard of care because they failed to appropriately and timely ambulate Mrs. Garley. He testified that the nurses should have walked her a distance of about 60 feet within 12 to 18 hours after surgery. Moreover, if the nurses were not able to ambulate her by that time, i.e., by 7:30 a.m. on April 29, the nurses should have called her doctor for further instruction and advice. He testified that the nurses' failure to ambulate Mrs. Garley in a timely fashion contributed to the formation of the blood clot which led to her death. Id., 402-03. This second doctor also testified that the nurses also failed to properly respond to Mrs. Garley's complaints of leg pain, which, he stated, should have been relayed to the doctors. The doctor testified that the nurses' failure to properly respond to her complaints of leg pain hindered the possible diagnosis of a DVT, which also contributed to her death. Id.
The plaintiff's third physician expert witness was a general surgeon. After graduation, he worked as a general surgeon who stated he also taught residents in general surgery, as well as, nurses. He testified that nursing conduct before and during surgery fell below the applicable standard of care because she failed to suggest to Garley's physician that he utilize anti-clotting devices during surgery. He testified that he did not know when the DVT formed, but that the failure to employ anti-clotting devices "set the ball rolling toward [the development of a] DVT and pulmonary embolus." Id., 403.
Based upon the testimony of plaintiff's experts, the jury was instructed on five theories as to how the Hospital's nursing staff negligently cared for Mrs. Garley: (1) failing to ambulate her in an appropriate and timely manner; (2) failing to notify her physicians of her complaints of pain; (3) failing to notify her physicians of her lack of ambulation; (4) failing to use Allen stirrups in positioning her for surgery; and (5) failing to suggest the use of anti-clotting devices during surgery. Id., 404
In Garley v. Columbia LaGrange Memorial, supra, 351 Ill.App.3d 398, the court found that in order for an expert physician to be competent to testify, two foundational requirements must be met: (1) the physician must be a licensed member of the school of medicine about which he proposes to testify and (2) the expert witness must show that he is familiar with the methods, procedures, and treatments ordinarily observed by other physicians, in either the defendant physician's community or a similar community. Id., 407.
It is undisputed that, in this case, plaintiff's experts were well-qualified physicians, whose professional experience and accomplishments were beyond reproach. Equally undisputed, however, is that none of plaintiff's experts were licensed in the school of nursing. The question is whether this one failing renders them incompetent to testify as to the applicable nursing standard of care and deviations therefrom. Id.
The court then continued that the Illinois Supreme Court in Dolan v. Galluzzo, 77 Ill.2d 279, 284-85, 396 N.E.2d 13 (1979), and the Illinois legislature by passage of legislation regulating and licensing the nursing profession, have recognized nursing as a unique school of medicine. Id., 407 The court also quoted E. Beyer P. Popp, Nursing Standard of Care in Medical Malpratice Litigation: The Rule of the Nurse Expert Witness, 23 J. Health Hosp. L. 363, 365 (1990), which reasons:
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. Id., 407-08.
The court affirmed the trial court's decision not to allow a doctor to testify as to the standard of care for the nursing profession. "Dr. Barnhart is not a licensed member of the nursing profession. To allow the doctor to testify as to the standard of care applicable to the nursing profession implicates the risks raised by Dolan, namely, the imposition of a higher standard of care and the muddling and mixing of various tenets and practices unique to each profession." (Internal quotation marks omitted, internal citations omitted.) Id., 409.
The court based its decision on the fact that the doctors called as expert witnesses to testify as to the appropriate standard for nurses, were, not in fact licensed in the nursing profession. The court did not doubt that the doctors worked with nurses and familiar with the methods, procedures, and treatments ordinarily observed by the nurses. The licensing requirement in Illinois was an unequivocal requirement and might be considered rigid by some. Id. However, the rule was deemed necessary in order to avoid the danger of imposing upon nurses a higher standard of care than society and the law should expect, and the inequities that would result from doing so. The court therefore ruled that only those licensed in the field of nursing may testify as to the nursing standard of care. Id., 413.
In Sullivan v. Edward Hospital, 209 Ill.2d 100, 806 N.E.2d 645 (2004) a doctor testified that a nurse deviated from the standard of care for professional nurses in her failure to adequately communicate the patient's condition to a treating physician during their phone conversation. Id., 106. The trial court ruled that the physician-witness was incompetent to testify as to that standard, the court granted the hospital's motion for a directed verdict. Id., 106. While the appeal was decided on discovery issues relating to non-disclosure of the witness's opinion as to the standard of care for nurses, Id., 110, the court did discuss in length, the standard of care for nursing. Id. 111-24. Based on, Dolan v. Galluzzo, supra, 77 Ill.2d 279, the court ruled that the physician expert witness was not competent to testify regarding the standard of care for the nursing profession and the nurse's alleged deviations therefrom. Id., 119.
The Sullivan court also noted that in some jurisdictions, the physician is no longer permitted to testify about the nursing standard of care since the physician is not a nurse and does not possess direct knowledge of nursing standards. See Dolan v. Jaeger, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784, 786-87 (2001) (upholding trial court's dismissal of nursing malpractice action where physician anesthesiologist was only expert to testify as to nurse's standard of care); Vassey v. Burch, 45 N.C.App. 222, 226, 262 S.E.2d 865, 867 ("Although the affidavit of [the physician] maybe sufficient to establish the accepted standard of medical care for a doctor in his office, it does not establish the standard of care for a nurse in a hospital"), rev'd on other grounds, 301 N.C. 68, 269 S.E.2d 137 (1980).
These cases represent a growing recognition on the part of courts that nursing, as a profession, has moved beyond its former dependence on the physician, and into a realm where it must and can legally account for its own professional practices. In doing so, the experts who provide the testimony, and the literature from which their opinions are derived, come from the nursing profession. C. Kehoe, Contemporary Nursing Roles and Legal Accountability: The Challenge of Nursing Malpractice for the Law Librarian, 79 Law Libr. J. 419, 428-29 (1987).
Sullivan v. Edward Hospital, supra, 209 Ill.2d 122.
The court recognizes that in the cases from Illinois, the ultimate decisions of those courts were based on the fact that Illinois law did not allow a physician to testify as to the appropriate standard of care for nurses and any deviation from that standard unless the physicians were also licensed in the field of nursing. However that is not the case in Dolan v. Jaeger, supra, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784, 786-87 (2001) and Vassey v. Burch, 45 N.C.App. 222, 226, 262 S.E.2d 865, 867, which was cited by the Illinois Supreme Court in Sullivan v. Edward Hospital, supra, 209 Ill.2d 122. The common theme running through those decisions is that physicians have little first hand knowledge of nursing practices and training. Physicians rarely teach nursing programs or write nursing texts. Therefore, a physician in most cases would not be familiar with the standard of care or with the nursing policies and procedures governing the standard of care for nurses. See Garley v. Columbia LaGrange Memorial, supra, 351 Ill.App.3d 407-08.
The court also recognizes that General Statutes § 54-182c contains a flexibility that appears not to be present in Illinois legislation governing the rendering of an expert opinion and the standard of care in medical negligence actions. However, in the subject case, the court agrees with the defendant Bridgeport Hospital that Dr. Godar is not a licensed member of the nursing profession. His testimony does not reveal that he has extensive contact with the nurses in a setting of day-to-day patient care or nursing care rendered to postoperative patients such as the plaintiff. To allow Dr. Godar to testify as to the standard of care applicable to the nursing profession implicates the risk of the imposition of a higher standard of care and the mixing of various tenets and practices unique to each profession.
Therefore, Dr. Godar will be precluded from testifying as to the standard of care for the nurses at the Bridgeport Hospital and any alleged deviation from the appropriate standard of care regarding the treatment of the plaintiff at the Bridgeport Hospital.
V SUMMARY OF DECISION
Motion in Limine #238, filed by the defendant Dr. Abrams is denied as it pertains to Dr. Abrams and the house staff of the Bridgeport Hospital.
Motion in Limine #241, filed by the defendant Bridgeport Hospital is granted precluding Dr. Godar from testifying regarding the standard of care for, and deviations from said standard of care, by the nursing staff at Bridgeport Hospital.