physicians were not qualified to testify to (1) the nurses’ standard of care or (2) whether the nursing staff deviated from their standard of care
How later courts described this case
- physicians were not qualified to testify to (1) the nurses’ standard of care or (2) whether the nursing staff deviated from their standard of care
Written by the judges who cited it.
The opinion
JUSTICE GREIMAN, specially concurring:
The authoring judge thoughtfully announces that he is following Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004). In that case and its predecessors, Dolan v. Galluzzo, 77 Ill. 2d 279 (1979), Purtill v. Hess, 111 Ill. 2d 229 (1986), and Jones v. O’Young, 154 Ill. 2d 39 (1992), a bright line was imposed which requires that health care experts be licensed in the school of medicine of which the expert proposes to testify.
In Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896 (1997), the appellate court distinguished Dolan and its predecessors by suggesting a physician could testify to the standard of care for the nurses relating to communications to a physician about what has transpired since the physician last saw the patient.
The authoring judge suggests that Sullivan trumps all of the preceding decisions in imposing the bright line of licensure. However, the Sullivan court is very careful to state “the precise factual scenario of Wingo is not present.” Sullivan, 209 Ill. 2d at 118 . In Sullivan, the expert’s testimony related to nursing procedures rather than communications. Sullivan, 209 Ill. 2d at 118 .
Sullivan further states:
“In distinguishing Wingo from this case, the appellate court did not discuss the merits of Wingo, and neither do we. The present case falls squarely within the license requirement of Dolan and its progeny.” Sullivan, 209 Ill. 2d at 119 .
If our supreme court wished to impose a license requirement even on those matters that relate to communications to a physician from a nurse, it could have easily so stated.
Instead it suggested the facts of Wingo, dealing with communications between a nurse and a physician, were not within the purview of the order in Sullivan.
Accordingly, we must conclude that Wingo remains an appropriate precedent to follow in the case at bar if it meets the factual requirements. The negligence of the nurse in part is predicated upon the nurse’s failure to communicate to the physician the failure of the plaintiffs decedent to respond to ambulation.
While a physician unlicensed as a nurse might not be competent to testify as to general nursing procedure, nothing in Sullivan suggests that a physician, upon a proper foundation of experience, could not testify as to the standard of care for a failure of communication between nurse and physician.
In the case at bar, Dr. DuBoe’s opinion does touch upon the failure to communicate, although he also touches upon the failure to timely ambulate the patient and to properly respond to the patient’s complaints of pain. Similarly, Drs. Bird and Vasquez testified to matters other than communication between nurse and physician. Accordingly, it appears that their testimony here falls within the scope of Sullivan.
I therefore grudgingly concur with the authoring judge. Grudgingly because I do not believe that a physician’s testimony about a nurse’s standard of care will somehow raise the bar on that standard of care. It is difficult to imagine that physicians with 20 years’ (Dr. DuBoe), 31 years’ (Dr. Bird) and 26 years’ (Dr. Vasquez) experience, two of whom have taught nurses and one who has written a nurses manual, cannot determine a nurse’s standard of care.
The majority quotes a learned text that is set forth in Sullivan: E. Beyer & P. Popp, Nursing Standard of Care in Medical Malpratice Litigation: The Role of the Nurse Expert Witness, 23 J. Health & Hospital L. 363, 365 (1990), which provides:
“ ‘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.’ ” (Emphasis added.) 351 Ill. App. 3d at 408.
One might wonder why the supreme court in Sullivan felt it necessary to make reference to the physician who teaches in nursing programs or who is responsible for the production of nursing texts.
In the instant matter, Dr. Bird testified that he had taught nurses and Dr. Vasquez testified that, in addition to teaching nurses, he had worked with hospital authorities to prepare nursing guidelines.
The foundation that these doctors taught or prepared manuals was not in much depth or detail. While this may not be the case for a physician who has been involved in teaching or preparation of a nursing manual to testify, Sullivan does not completely close that door.