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Nurse who supervised and taught Hospital nurses was "actively engaged" in nursing and qualified to testify for malpractice victim

The family of Patricia Gay sued the Battle Creek Health System after Patricia died in the hospital.  They argued that Ms. Gay died as a result of negligent nursing care.  She fell from the commode when she reached to answer a ringing telephone and died two days later.  She was subject to a medical order that required that she receive constant nursing supervision whenever she was not in bed, and the family argued that it was negligence for the nurse who accompanied her to the commode to leave her there unattended.

The family retained a nurse to review the records.  The reviewing nurse was employed in a hospital where she supervised other nurses but was not assigned individual patients.  Her title was Director of Education.  She signed an Affidavit of Merit confirming the breach of the nursing standard of care and the family filed suit.  Two years later, the Hospital's insurer challenged the nurse's credentials and sought dismissal of the wrongful death case, arguing that by statute the nurse wasn't qualified to offer an opinion on the standard of care.

The Hospital argued that the family's retained nurse expert did not meet the statutory requirement that she spend at least fifty percent of her time either teaching in an accredited institution or in the "active clinical practice" of nursing. Despite her testimony confirming her daily activities in teaching and supervising nurses in an accredited hospital, the trial judge ruled that the nurse was not qualified under the statute and that the family's case should be dismissed.  The judge also ruled that the family could not retain a replacement expert or re-file the claim with a new affidavit of merit.

The Court of Appeals overturned this decision and reinstated the family's wrongful death case.  It ruled that the lower court judge had construed the qualification statute too rigidly and wrongly excluded the retained nurse as an expert.  It noted that while she was not assigned individual patients, she was "actively involved" in clinical care by reason of her role in supervising, training and orienting nurses.  It also pointed out that her administrative service on committees, her work in maintaining protocols and standards, and her active review of research were all legitimate demands of a person who teaches professionals, and not grounds to exclude her testimony.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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