OB/GYN CAN TESTIFY TO STANDARD OF NURSING CARE,
FOURTH CIRCUIT RULES[Posted December 8, 2011] This one is going to get the attention of the med-mal bar: Today, a panel of the Fourth Circuit, applying Virginia law, rules that an obstetrician/gynecologist can testify as to the standard of care in litigation involving allegations or nursing malpractice. Today’s opinion is Creekmore v. Maryview Hospital.
Creekmore delivered a baby boy by Caesarian section, and developed post-partum medical complications. She alleged that the nurse assigned to monitor her (who had no other patients to care for that evening) paid insufficient attention to her deteriorating symptoms, noting on one occasion only that the mother was “resting comfortably.” The mother eventually went into hypovolemic shock and suffered a stroke from loss of blood. Despite emergency surgery, she sustained continuing “physical and cognitive impairments.”
At trial in US District Court in Norfolk, the patient called an ob/gyn to establish the relevant standard of nursing care. The doctor was allowed to testify over a defense objection, and the patient got a $900,000 judgment.
The Fourth Circuit affirms today. It holds that the doctor’s practice satisfied both the knowledge requirement and the active-clinical-practice requirement for admission of medical-expert testimony. The court finds that “the Virginia Supreme Court elevates the substance of an expert’s background, knowledge, and practice over a particular title or form.” The court cites a 2000 SCV decision, Sami v. Varn, which approved the use of an ob/gyn to testify as to the standard of medical care for emergency-room physicians conducting pelvic exams, and reasons that this shows that identity of practice areas is not required.
Today’s panel underscores the expert’s trial testimony that he performs the same functions as nurses do for the relevant course of treatment:
[T]here is a great deal of things where [doctors and nurses] overlap, and I do exactly the same things that nurses do. So while I don’t have an R.N., we take blood pressures the same way. We take pulses the same way. We examine uteruses the same way. We check for bleeding in the bed the same way. So I have been employed as a physician to do exactly the same things nurses do.
Here, the doctor testified that a nurse should have checked for blood loss, but the nurse failed to notice bleeding and failed to call a physician promptly. The opinion concludes with a reference to the “substantial rights” provision of Fed.R.Civ.P. 61, a cousin to the Virginia harmless-error statute (§8.01-680). The court’s ultimate conclusion is unfortunately stated as a double negative (“it does not appear that Dr. Stokes was not qualified to testify as an expert in the standard of care under Virginia law”), but the holding is unmistakable: Doctors aren’t forbidden to testify, at least in federal-court cases in Virginia, as to the standard of care for claims of nursing malpractice.