Nursing Malpractice

If you are a nurse supervising other nurses, that counts as engaging in the practice of nursing for the purpose of determining whether you can testify to the standard of care as an expert in Michigan.

The court held that the plaintiff-PR's proposed nursing expert (B) spent significantly more than 50% of her professional time in the active clinical practice of nursing or instructing nursing students and that the trial court erred when it determined that B did not meet the qualifications stated under § 2169(1). Because B was qualified to testify about the SOC, the trial court also erred when it dismissed the PR's claim on the ground that she did not have an expert to establish the SOC for the malpractice claim. The decedent-Wright was admitted to defendant-Select Specialty Hospital to treat her rheumatoid arthritis, including associated rheumatoid lung disease. She responded well to the treatments and, on Thursday, learned that she would be discharged from the hospital on the following Monday. However, the next day a nurse assisted Wright to a commode, but left her unattended. Wright reached for her ringing phone and fell from the commode. She injured her head, fractured her shoulder, and died two days later. The PR alleged that the fall was a direct and proximate result of the hospital's nursing staff's negligence and that the fall ultimately led to Wright's death. The PR retained B to offer an expert opinion about the applicable SOC. However, after the hospital deposed B, it moved to strike her as a witness and dismiss the case. The hospital argued that B could not testify about the applicable SOC because she did not meet the professional time requirement stated under § 2169(1)(b). The hospital presented B's deposition testimony in which it claimed she admitted that she spent the majority of her professional time serving as an administrator. Also, because the time limit for adding witnesses had passed, the hospital argued that the PR should be precluded from adding an expert to testify as to the applicable SOC. The hospital further maintained that the trial court had to dismiss the suit because the PR would not be able to establish this element of its claim. The trial court determined that B did not spend any portion of her professional time in either the active clinical practice of nursing or in the instruction of nurses at an accredited health professional school, an accredited residency, or a clinical research program. However, "the trial court made this determination despite the fact that there was plain - and unrebutted - evidence" that B "engaged in both the active clinical practice of nursing and instructed nurses at an accredited residency or clinical research program." The trial court apparently disregarded an aspect of B's professional work because she supervised the orientation of nurses and was not directly involved in the care of patients. "But the Legislature did not impose any such requirement. Rather, the Legislature provided that a witness might testify as an expert if he or she spent the majority of his or her time in the 'active clinical practice.'" Since the Legislature did not define the phrase "active clinical practice," it must be given its ordinary meaning. The key question was whether B was actively engaged in the nursing profession in a clinical setting. B testified that she spent 25% of her professional time orienting nurses to their units. The "act of orienting nurses within a hospital involves some degree of explaining, coordinating, and instructing nurses as to the proper care of their patients. And explaining, coordinating and instructing nurses about the proper care of patients in a clinical setting necessarily involves - albeit indirectly - the treatment of patients." Thus, it was undisputed that B spent 25% of her professional time engaged in the "active clinical practice" of nursing. Further, B unequivocally testified that she took an active role in the care of patients while orienting nurses. B also testified that she spent 50% of her professional time teaching at the hospital, which she averred was accredited as a residency program. This, coupled with her time engaged in the active clinical practice of nursing, clearly constituted more than 50% of her professional time and thus, met the professional time requirement stated under § 2169(1)(b). Reversed and remanded.