Frausto v. Yakima HMA, LLC

This opinion was filed for record

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SUSAN L. CARLSON

SUPREME COURT CLERK

IN TI-IE SUPREME COURT OF THE STATE OF WASHINGTON

RUDY FRAUSTO, ) No. 93312-0

)

Appellant, ) EN BANC

)

v. ) Filed: APR 2 7 2017

)

YAKIMA HMA, LLC, a Washington State )

Corporation, )

)

Respondent. )

·~~~~~~~-~-)

YU, J. - The sole issue in this case is whether advanced registered nurse

practitioners (ARNPs) are per se disqualified from testifying on proximate cause in

a medical negligence case. For the reasons discussed below, we hold that ARNPs

may be qualified to testify regarding causation in a medical malpractice case if the

trial court determines that the ARNP meets the threshold requirements of ER 702.

The ability to independently diagnose and prescribe treatment for a particular

malady is strong evidence that the expert might be qualified to discuss the cause of

Frausto v. Yakima HMA, No. 93312-0

that same malady. We therefore reverse the trial court and remand for further

proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

Rudy Frausto, a 70-year-old quadriplegic man, checked in to Yakima HMA

LLC for pneumonia. While there, the nurses allegedly failed to provide proper

care in the form of moving him, turning him, and providing him with an

appropriate bed. As a result, Frausto developed pressure ulcers and filed suit

against the medical center. 1

Yakima HMA moved for summary judgment, arguing that Frausto had

failed to provide expert testimony as required by statute. In response, Frausto

offered the sworn affidavit of Karen Wilkinson, an ARNP with more than 3 0 years

of experience "providing direct patient care, serving as clinical nursing faculty for

students providing care, and publishing nursing texts on the subject." Clerk's

Papers at 127, 136-37. Wilkinson stated her "professional objective medical

opinion, on a more probable than not basis," that the treating nurses breached the

applicable standard of care and that this breach proximately caused Frausto' s

pressure ulcers. Id. at 128.

1

In his suit, Frausto did not name any physicians or nurses individually. Frausto later

conceded that nurses may not express an opinion as to the standard of care for physicians and

stated that the claims would allege fault on the part of the nursing staff alone. Verbatim Tr. of

Proceedings (Oct. 21, 2015) at 25. We have previously held that only physicians may testify as

to another physician's standard of care, and we do not reconsider that holding today. See Young

v. Key Pharm., Inc., 112 Wn.2d 216, 227, 770 P.2d 182 (1989).

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Frausto v. Yakima HMA, No. 93312-0

The trial court held that while Wilkinson was certainly qualified as an expert

and could speak to the applicable standard of care, the law did not permit

Wilkinson to testify on the issue of proximate cause. Frausto initially appealed to

Division Three of the Court of Appeals but later moved to transfer the case to this

court. Our commissioner granted the motion. Ruling Granting Mot. to Transfer,

Frausto v. Yakima HMA, LLC, No. 93312-0 (Wash. Sept. 26, 2016).

ISSUE

May an ARNP express an opinion on proximate cause in a medical

malpractice case in accordance with RCW 7.70.040?

ANALYSIS

Washington's statutory scheme creates several categories of care providers

under the "nursing" umbrella-licensed practical nurses, registered nurses, and

ARNPs--each with varying certification requirements and scopes of practice. See

RCW 18. 79. 040-. 060. Our legislature has designated ARNPs as the highest tier of

nurses, "prepared and qualified to assume primary responsibility and

accountability for the care of patients" within the narrow scope of their particular

certifications. RCW 18.79.050; WAC 246-840-300(1 ). We need consider the

qualifications of only ARNPs for purposes of this case.

Yakima EMA asserts first that we should review the trial court's ruling for

abuse of discretion. Ordinarily, evidentiary rulings are a matter of discretion by

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Frausto v. Yakima HMA, No. 93312-0

the trial court and will not be upset on review absent an abuse of discretion.

McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706, 782 P.2d 1045 (1989).

However, it is not clear that the trial court even attempted to exercise its discretion

in resolving an evidentiary issue, believing instead that our case law foreclosed the

possibility of Wilkinson's testimony on proximate cause. Verbatim Tr. of

Proceedings (Oct. 21, 2015) (VTP) at 33 (noting that "the state of the law ... is

that the nurse, no matter how well qualified, isn't capable of giving a decision on

proximate cause"). In any event, "[t]he de novo standard of review is used by an

appellate court when reviewing all trial court rulings made in conjunction with a

summary judgment motion." Folsom v. Burger King, 135 Wn.2d 658, 663, 958

P.2d 301 (1998). Here, it is undisputed that the decision made by the trial court

that is on review was made pursuant to Yakima HMA' s motion for summary

judgment. Because the trial court dismissed this case on summary judgment, our

review is de novo. Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574

(2006).

In Washington, plaintiffs in a medical malpractice action must prove two

key elements: ( 1) that the defendant health care provider failed to exercise the

standard of care of a reasonably prudent health care provider in that same

profession and (2) that such failure was a proximate cause of the plaintiffs

injuries. RCW 7.70.040. With regard to the standard of care, we have repeatedly

4

Frausto v. Yakima HMA, No. 93312-0

held that "'expert testimony will generally be necessary to establish the standard of

care."' Young v. Key Pharm., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989)

(quoting Harris v. Groth, 99 Wn.2d 438, 449, 663 P.2d 113 (1983)). The expert

must have "sufficient expertise in the relevant specialty" such that the expert is

familiar with the procedure or medical problem at issue. Id. at 229.

To establish causation, the plaintiff must show that the alleged breach of the

standard of care "was a proximate cause of the injury complained of." RCW

7.70.040(2). Like the standard of care, expert testimony is always required except

in those few situations where understanding causation "does not require technical

medical expertise." 2 Young, 112 Wn.2d at 228 (giving the examples of

"amputating the wrong limb or poking a patient in the eye while stitching a wound

on the face"). "Whether an expert is qualified to testify is a determination within

the discretion of the trial court." Miller v. Peterson, 42 Wn. App. 822, 832, 714

P.2d 695 (1986). In this case, however, the trial court did not believe it had any

discretion to allow a nursing expert to testify regarding medical causation as a

matter of law. VTP (Oct. 21, 2015) at 33.

2

Frausto argues that the injuries here are the type that do not require expert testimony on

causation. Appellant's Br. at 9 ("The plain meaning of bedsore implies its cause."). We

disagree. As Frausto notes in his brief, "bedsores" are described as '"an ulceration of tissue

deprived of [nutrition] by prolonged pressure."' Id. The ordinary juror is unlikely to understand

this process without the aid of expert testimony.

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Frausto v. Yakima HMA, No. 93312-0

Although we have not opined on this specific issue, the Court of Appeals has

offered conflicting analyses on this point in a series of three opinions.

In the first opinion, the family of a deceased patient brought suit against a

hospital after the patient died from internal bleeding. Colwell v. Holy Family

Hosp., 104 Wn. App. 606, 609, 15 P.3d 210 (2001). The family alleged that

hospital staff failed to adequately monitor the patient. Id. The trial court

dismissed the action on summary judgment, noting that the family failed to make a

prima facie case because their expert registered nurse "' [was] not competent to

render an opinion regarding causation."' Id. at 610. The Court of Appeals

affirmed, holding that "a medical doctor must still generally connect [the patient's]

death to the alleged nursing deficiencies." Id. at 613. Thus, the court found that

the trial court "did not abuse its discretion in finding [the expert registered nurse]

incompetent to testify to medical causation." Id.

The court reaffirmed its prior holding within a more narrow scope in Davies

v. Holy Family Hospital, 144 Wn. App. 483, 501, 183 P.3d 283 (2008). 3 In

Davies, a patient passed away following a renal biopsy when her internal bleeding

went unrecognized and untreated in the hospital. Id. at 488. In a medical

negligence action, the patient's estate offered declarations from a radiologist and a

3

Although the court decided Davies on February 21, 2008, publication of the opinion

was not ordered until May 13, 2008. Thus, this case was decided second in the trilogy but

published third.

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Frausto v. Yakima HMA, No. 93312-0

registered nurse. Id. at 490. The trial court entered summary judgment dismissing

the case, and the Court of Appeals affirmed. Id. at 487, 491. In addressing the

issue of causation, the court unequivocally held that "a nurse is not competent to

testify as to the patient's cause of death." Id. at 501 (citing Colwell, 104 Wn. App.

at 613).

But just five days later, the Court of Appeals reconsidered its reliance on

Colwell in dicta when it decided Hill v. Sacred Heart Medical Center, 143 Wn.

App. 438, 446, 177 P.3d 1152 (2008). In I-fill, a patient brought suit against the

hospital for failing to monitor injections of a heparin compound following bilateral

knee surgery, resulting in a stroke, a pulmonary embolism, and deep vein

thrombosis. Id. at 441-43. On summary judgment, the trial court dismissed the

case based on deficiencies in the affidavits of three medical doctors and one

registered nurse. Id. at 445. The Court of Appeals reversed, finding that the

registered nurse provided evidence of the applicable standard of care while a

medical doctor opined on the issue of causation. Id. at 449-50.

Although unnecessary to the resolution of the case, the court reexamined its

holding in Colwell and found that "[t]here is nothing in the statutory scheme that

suggests that a nurse should be categorically denied the right to express opinions

on the proximal relationship between a breach of a duty of care, and an injury." Id.

at 446. Instead, the court pointed to our rules of evidence providing that "[a]

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Frausto v. Yakima HMA, No. 93312-0

witness may testify as an expert if he or she possess knowledge, skill, experience,

training, or education that will assist the trier of fact." Id. at 447 (citing ER 702).

In sum, the court stated that it is "[t]he scope of the expert's knowledge, not his or

her professional title, [that] should govern 'the threshold question of admissibility

of expert medical testimony in a malpractice case."' Id. (quoting Pon Kwack Eng

v. Klein, 127 Wn. App. 171, 172, 110 P.3d 844 (2005)).

We believe the court's analysis in Hill is correct. A majority of jurisdictions

permit testimony from nurses 4 regarding causation in medical malpractice cases.

In this case, Yakima HMA points to several jurisdictions that have held otherwise.

However, there are two key factors that lead us to reach the opposite conclusion.

First, Washington's nursing statutes differ from statutes in other states in that our

legislature has empowered ARNPs to diagnose illnesses and injuries to at least a

limited degree. RCW 18.79.050. Second, the jurisdictions allowing nurses to

testify on causation rely on ER 702 for the requisite qualification of experts. 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.

A. Washington law provides that ARNPs may independently diagnose some

illnesses and injuries

4

The rules from these other jurisdictions draw no distinction between different types of

nursing licenses, instead referring only to nurses or registered nurses generally. See cases cited

infra note 5.

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Frausto v. Yakima HMA, No. 93312-0

In Washington, the practice of registered nurses generally includes "[t]he

observation, assessment, diagnosis, care or counsel, and health teaching of

individuals with illnesses, injuries, or disabilities." RCW 18.79.040(1)(a).

"Diagnosis" has been defined in the registered nursing context as "the

identification of, and discrimination between, the person's physical and

psychosocial signs and symptoms." RCW 18.79.020(4). ARNPs operate at the

same baseline level as registered nurses, being authorized to perform "the acts of a

registered nurse and the performance of an expanded role in providing health care

services as recognized by the medical and nursing professions." RCW 18.79.050.

However, ARNPs are further empowered to practice independently and "to

assume primary responsibility and accountability for the care of patients." WAC

246-840-300(1). This includes the authority to "[e]xamine patients and establish

diagnoses by patient history, physical examination, and other methods of

assessment," and even allows for interpreting diagnostic tests and prescribing

therapies and medical equipment. WAC 246-840-300(5)(a), (c), (e). Although we

have not previously interpreted Washington's statutory and administrative

schemes, the plain language 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.

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Frausto v. Yakima HMA, No. 93312-0

Yakima HMA argues that the majority rule in the United States prohibits

nurses from expressing an opinion as to medical causation in malpractice actions.

Resp't's Br. at 6-7. This is not so. At least eight states 5 permit nurses to testify as

to causation, whereas only seven states 6 expressly forbid it. The cases cited by

Yakima HMA all rely on provisions within their state's statutory frameworks

prohibiting nurses from making medical diagnoses; in contrast, Washington's

statutory framework permits ARNPs to practice independently and make diagnoses

within the limited scope of their certification. Thus, the minority rule categorically

5

The eight states include Idaho, Kansas, Nevada, New York, North Carolina, Ohio,

Oklahoma, and Pennsylvania. See Sheridan v. St. Luke's Reg'! Med. Ctr., 135 Idaho 775, 785,

25 P.3d 88 (2001); Mellies v. Nat'! Heritage, Inc., 6 Kan. App. 2d 910, 918, 636 P.2d 215

(1981); Williams v. Eighth Judicial Dist. Ct., 127 Nev. 518, 526, 262 P.3d 360 (2011); Salter v.

Deaconess Family Med. Ctr., 267 A.D.2d 976, 976, 701 N.Y.S.2d 586 (App. Div. 1999); State v.

Tyler, 346 N.C. 187, 204, 485 S.E.2d 599 (1997); Morris v. Children's Hosp. Med. Ctr., 73 Ohio

App. 3d 437, 447, 597 N.E.2d 1110 (1991); Gaines v. Comanche County Med. Hosp., 2006 OK

39, 143 P.3d 203, 209; Freed v. Geisinger Med. Ctr., 601 Pa. 233, 240, 971 A.2d 1202 (2009).

In addition, six more states contain case law arguably permitting nurse testimony: Arizona,

Michigan, New Hampshire, Rhode Island, South Carolina, and Virginia. See Bush v. Thoratec

Corp., 13 F. Supp. 3d 554, 577 (E.D. La. 2014) (federal court interpreting Virginia law); Salica

v. Tucson Heart Hosp. -Carondelet; LLC, 224 Ariz. 414, 419, 231 P .3d 946 (201 O); Rickman v.

Malone, No. 313661, 2014 WL 1679133, at *4 (Mich. Ct. App. Apr. 24, 2014) (unpublished);

Smith v. HC~ Health Servs. of NH, Inc., 159 N.H. 158, 162-63, 977 A.2d 534 (2009); Malinou

v. Miriam Hosp., 24 A.3d 497, 510 (R.I. 2011); James v. Lister, 331 S.C. 277, 287, 500 S.E.2d

198 (1998).

6

The seven states include Alabama, Georgia, Illinois, Indiana, Mississippi, Tennessee,

and Texas. See Phillips v. Alamed Co., 588 So. 2d 463, 465 (Ala. 1991); Freeman v. LTC

Healthcare o,f Statesboro, Inc., 329 Ga. App. 763, 766, 766 S.E.2d 123 (2014); Seefv. Ingalls

Mem 'l Hosp., 311 Ill. App. 3d 7, 21, 724 N.E.2d 115 (1999); Long v. Methodist Hosp. of Ind.,

Inc., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998); Vaughn v. Miss. Baptist Med. Ctr., 2008-CA-

00987-SCT, 20 So. 3d 645, 652 (Miss. 2009); Richberger v. W Clinic, PC, 152 S.W.3d 505, 511

(Tenn. Ct. App. 2004); Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 90 (Tex. App.

2005). In addition, two more states contain case law arguably excluding nurse testimony:

Milmesota and Kentucky. See Elswick v. Nichols, 144 F. Supp. 2d 758, 767 (E.D. Ky. 2001);

Jenco v. Crow, No. A14-0375, 2015 WL 303653, at *2 (Mim1. Ct. App. Jan. 26, 2015)

(unpublished).

10

Frausto v. Yakima HMA, No. 93312-0

excluding all types of nurses from offering causation testimony should not apply in

Washington. The cases cited by Yakima HMA demonstrate this point.

For example, the Supreme Court of Mississippi has held that "nursing

experts cannot opine as to medical causation and are unable to establish the

necessary element of proximate cause." Vaughn v. Miss. Baptist Med. Ctr., 2008-

CA-00987-SCT, 20 So. 3d 645, 652 (Miss. 2009). However, the court relied on

Mississippi's nursing statute that excludes from nursing practice "acts of medical

diagnosis or prescriptions of medical, therapeutic or corrective measures." MISS.

CODE ANN.§ 73-15-5(2). Thus, the court reasonably held that "[s]ince medical

diagnosis is outside a nurse's scope of practice, logically it would follow that a

nurse should not be permitted to testify as to his/her diagnostic impressions or as to

the cause of a particular infectious disease or illness." Vaughn, 20 So. 3d at 652.

By contrast, Washington's statutory scheme expressly permits ARNPs to

independently diagnose conditions and prescribe medical, therapeutic, or

corrective measures. RCW 18.79.050.

In Indiana, the Court of Appeals held that "the determination of the medical

cause of injuries, which is obtained through diagnosis, for purposes of offering

expert testimony is beyond the scope of nurses['] professional expertise." Long v.

Methodist Hosp. ofInd., Inc., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998). There,

the court relied on the "significant difference in the education, training, and

11

Frausto v. Yakima HMA, No. 93312-0

authority to diagnose and treat diseases between physicians and nurses." Id.

However, this "significant difference" was based entirely on statute. Indiana

physicians were authorized to engage in the "diagnosis, treatment, correction, or

prevention of any disease." IND. CODE§ 25-22.5-1-1.l(a)(l)(A). In contrast,

Indiana nurses were empowered only to engage in "preventive, restorative,

maintenance, and promotion activities which include meeting or assisting with

self-care needs, counseling, and teaching." Id. § 25-23-1-1.1( d). Washington's

statutory scheme does not contain such sweeping limits to the scope of practice as

compared to Indiana's code.

And in Texas, their Court of Appeals held that "a nurse is prohibited from

making a medical diagnosis or prescribing corrective or therapeutic treatment."

Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 90 (Tex. App. 2005).

The court relied on state law that expressly excluded from '" [p ]rofessional

nursing'" the "acts of medical diagnosis or the prescription of therapeutic or

corrective measures." TEX. Occ. CODE ANN. § 301.002(2). Neither Washington's

nursing statute nor its administrative code carve out similar exclusions.

Taken together, the cases from other jurisdictions that categorically disallow

nurses from opining on causation in medical malpractice actions rely on explicit

limitations and exclusions in their state statutes regulating the practice of nursing.

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Frausto v. Yakima HMA, No. 93312-0

Washington's statutes do not contain similar limitations. Thus, we find this

particular line of out-of-jurisdiction precedent unpersuasive.

B. Washington's ER 702 requires only that an expert discussing causation have

scientific, technical, or other specialized knowledge

In contrast, Frausto points to several cases from other jurisdictions holding

that nurses are certainly qualified to offer an opinion on medical causation. The

common thread among these cases-and indeed the cases from all eight states

allowing nurse testimony in some form-is that the reasoning is based not on those

states' nursing statutes but on their rules of evidence. 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.

The second statutory element of medical malpractice cases has resulted in

relatively few controversies over the years. RCW 7.70.040(2) requires proof only

that the defendant health care provider's failure to adhere to the standard of care

"was a proximate cause of the injury complained of." Except in limited

circumstances, plaintiffs in a medical malpractice case must establish proximate

cause through expert testimony. Douglas v. Freeman, 117 Wn.2d 242, 252, 814

P .2d 1160 ( 1991 ). "The admissibility of expert testimony is governed by [our

Rules of Evidence] and requires a case by case inquiry." State v. Willis, 151

Wn.2d 255, 262, 87 P.3d 1164 (2004).

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}rausto v. Yakima HMA, No. 93312-0

Accordingly, our Rules of Evidence detail the circumstances under which a

witness may offer testimony in the form of an expert opinion. "If scientific,

technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify thereto in the form

of an opinion or otherwise." ER 702. The trial court acts as a gatekeeper,

determining whether a particular expert's testimony will assist the trier of fact and

excluding evidenc~ that does not meet this standard. City ofFircrest v. Jensen,

158 Wn.2d 384, 397, 143 P.3d 776 (2006). Frausto argues that, absent any

additional statutory requirements, the Rules of Evidence resolve the issue of who

may testify regarding proximate cause in a medical malpractice action. In support,

Frausto points to several jurisdictions that have allowed nurses to offer causation

testimony on this basis.

For example, the Supreme Court of North Carolina has previously held that

a nurse was qualified to testify regarding the cause of death for a patient suffering

severe burn trauma. State v. Tyler, 346 N.C. 187, 204, 485 S.E.2d 599 (1997).

Without discussion of the statutory qualifications of nurses, the court instead reHed

on North Carolina's rule of evidence governing expert testimony. Id. ( citing N.C.

GEN. STAT.§ 8C-702). Pursuant to that rule, the court found that the expert nurse,

"through both study and experience, was better qualified than the jury to form an

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Frausto v. Yakima HMA, No. 93312-0

opinion on the cause of [the victim's] death." Id. In fact, the expert's status as a

nurse "was merely a factor to be considered by the jury in evaluating the weight

and credibility of her testimony." Id.

The Supreme Court in Oklahoma held that nurses are qualified to discuss the

causation and treatment of pressure ulcers specifically. Gaines v. Comanche

County Med. Hosp., 2006 OK 39, 143 P.3d 203, 207. The court agreed with the

Kansas Court of Appeals that "such skin eruptions are 'primarily a nursing

problem."' Id. (quoting Mellies v. Nat'l Heritage, Inc., 6 Kan. App. 2d 910, 918,

636 P.2d 215 (1981)). In fact, the court noted from its research that every other

jurisdiction permitted causation testimony from nurses in cases involving pressure

ulcers specifically. Id. Further, the court found that such testimony was consistent

with Oklahoma's rule of evidence providing for expert testimony. Id. at 207-08

(quoting Okla. Stat. tit. 12, § 2702, which qualifies witnesses as experts based on

"knowledge, skill, experience, training or education").

And in Pennsylvania, the Supreme Court reversed prior precedent that

prohibited nurses from offering opinion testimony on medical causation. Freed v.

Geisinger Med. Ctr., 601 Pa. 233, 253, 971 A.2d 1202 (2009). In language similar

to the Mississippi law in Vaughn, Pennsylvania's professional nursing law allowed

nurses to diagnose human responses to actual or potential health problems but

expressly prohibited them from providing medical diagnoses. Id. at 246 ( citing 63

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Frausto v. Yakima HMA, No. 93312-0

PA. CONS. STAT.§ 212(1)). Reversing a prior opinion to the contrary, the court in

Freed found "no language whatsoever in the [professional nursing law] statute to

suggest that the principles governing the actual practice of nursing are applicable

in the distinct legal arena of malpractice or negligence actions, which is governed

by the Rules of Evidence." Id. at 247. Instead, the court held that the nursing

statute did not override "the well established liberal standard for qualification of

expert witness testimony." Id.

As mentioned above, these cases follow the majority rule throughout the

country that nurses may be qualified to testify as experts pursuant to the rules of

evidence. See, e.g., Sheridan v. St. Luke's Reg'l Med. Ctr., 135 Idaho 775, 785, 25

P.3d 88 (2001) (holding that sufficiency of testimony in a medical malpractice case

is governed by ER 701 and ER 702); Mellies, 6 Kan. App. 2d at 920 (holding that

"if a proper foundation is laid as to the nurse's experience with decubitus ulcers,

she or he can qualify as an expert as to causation and as to such parts of treatment

and cure that are performed by such nurse"); Williams v. Eighth Judicial Dist. Ct.,

127 Nev. 518, 526, 262 P.3d 360 (2011) (holding that nurses are not per se

precluded from testifying as to medical causation); Salter v. Deaconess Family

Med. Ctr., 267 A.D.2d 976, 976, 701 N.Y.S.2d 586 (App. Div. 1999) (finding that

testimony of defendant nurse admitting element of proximate cause established a

prima facie case of malpractice).

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Frausto v. Yakima HMA, No. 93312-0

We agree with Frausto and hold that ER 702 provides the appropriate

mechanism for a trial court to determine whether an ARNP's opinion on causation

is sufficient based on the qualifications of the ARNP and the statutory scope of that

ARNP's authority and certification as a health care provider. Even among the

cases cited by Yakima HMA, the courts analyzed the issue of causation using the

language of expert testimony admissibility. See Long, 699 N.E.2d at 1168 (noting

that a witness without the '" same education, training or experience"' as the

defendant is "generally not qualified to serve as an expert" (emphasis added)

(quoting Stackhouse v. Scanlon, 576 N.E.2d 635, 639 (Ind. Ct. App. 1991)));

Vaughn, 20 So. 3d at 652 (finding that nurses "are not qualified to make medical

diagnoses or attest to the causes of illnesses" (emphasis added)); Esquivel, 225

S.W.3d at 91 (finding that the expert nurse's "report and [curriculum vitae] do not

establish that she has any training, education, skill or clinical nursing experience

relevant to diagnosing the causes of decubitus ulcers" and that the nurse did not

"possess[] the expertise which would qualify her to express an opinion as to the

causal link" (emphasis added)). In each case, the court's determination on expert

qualifications was influenced by that state's nursing statute excluding nurses from

diagnosing injuries or illnesses. This is contrary to Yakima HMA's claim that

"nurses are not qualified, no matter their education, training, or experience, to

17

Frausto v. Yakima HMA, No. 93312-0

present medical causation opinions." Resp't's Br. at 9 (citing Vaughn, 20 So. 3d at

652).

Our legislature has outlined the necessary elements of proof to prevail in

actions resulting from health care. RCW 7.70.040. Decisions on the qualifications

of expert testimony-whether an expert has the proper foundation for their

opinions-remains a function of the court. Our Rules of Evidence provide

sufficient guidance to trial courts. By preserving the court's gatekeeping function,

expert testimony may be excluded when it clearly cannot help the trier of fact

determine if the defendant's "failure was a proximate cause of the injury

complained of." RCW 7.70.040(2). As amicus Washington State Association for

Justice Foundation correctly points out, Yakima HMA is "free to argue [at trial]

that Wilkinson's status as a nonphysician permits the jury to afford it less weight,

but this status should not, on its own, render her testimony inadmissible." Br. of

Amicus Curiae Wash. State Ass'n for Justice Found. at 18-19 (citing State v.

Rangitsch, 40 Wn. App. 771, 779, 700 P.2d 382 (1985); In re Welfare of Young, 24

Wn. App. 392, 397, 600 P.2d 1312 (1979), review denied, 93 Wn.2d 1005 (1980)).

A sweeping ban on causation testimony from expert ARNPs is unnecessary and

inconsistent with the degree of independent care authority granted to those holding

an ARNP license in Washington State.

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Frausto v. Yakima HMA, No. 93312-0

Finally, Yakima HMA points out that Frausto's expert ARNP in this case

specialized in pediatric care and argues that such experience does not qualify her to

opine as to the cause of bedsores in adult quadriplegic patients. This may or may

not be so, but it is an evidentiary determination to be made by the trial court.

Despite observing that Ms. Wilkinson is "extremely well qualified," has "been

teaching all over the place," and has "been a nurse for a long time," it is clear that

the court did not make a finding as to Ms. Wilkinson's qualifications under ER

702. VTP at 33. As such, the trial court should have an opportunity to hear the

parties' arguments on this point and exercise its discretion accordingly.

CONCLUSION

The trial court entered summary judgment on the basis that nurses are

categorically prohibited as a matter of law from offering opinion testimony

regarding proximate cause in a medical malpractice claim. However, our state's

statutory rules permit ARNPs to independently diagnose some conditions within

the scope of their certification. Whether or not an ARNP has the requisite

specialized knowledge to qualify as an expert on causation is a determination left

to the trial court under our Rules of Evidence, taking into consideration the

ARNP's particular scope of practice and expertise. Accordingly, we reverse and

remand to the trial court to determine whether Ms. Wilkinson has the requisite

19

Frausto v. Yakima HMA, No. 93312-0

qualifications under ER 702 to offer an opinion as to the causation ofFrausto's

mJunes.

20

Frausto v. Yakima HMA, No. 93312-0

WE CONCUR:

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21