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Texas court finds nurse practitioner unqualified to provide expert causation testimony involving nursing care

Texas law is clear that only physicians are qualified to render expert opinions regarding proximate cause

There’s a significant debate in healthcare about the ongoing and future role of mid-level providers-nurse practitioners (NPs), physician assistants (PAs), and certified registered nurse anesthetists (CRNAs).

None of these providers are physicians, yet, to varying degrees, states allow them to prescribe medications, provide patient treatments, and perform treatments.

The general trend is that many professional organizations for these mid-level providers advocate for increasingly independent practice. By that, I mean independent of any physician oversight at all. Add into the mix that some PA, NP, and CRNA schools have begun offering terminal (doctoral) degrees in those fields, and some mid-level providers choose to go by Dr. PA, Dr. NP, or Dr. CRNA.

According to some NP, PA, and CRNA lobbying organizations, the care provided by their members is as least as good as the care provided by physicians. Physician organizations counter by pointing out that mid-level providers have less education and training and while they are a valuable part of the healthcare team, they need to be supervised by physicians.

Texas has not embraced the expanded scope of mid-level providers. In fact, the Texas Medical Liability Act tort reform statute, makes it clear that only a physician is qualified to offer causation testimony in court. This was precisely the issue addressed in a 2021 opinion entered by the Amarillo Court of Appeals, styled Jeffna McKinney v. Lee Bivins Foundation; No. 07-20-0027-CV. You can read the opinion here.

In that case, a medical malpractice wrongful death lawsuit alleged medical negligence against the senior healthcare facility called Bivins Pointe. Specifically, the plaintiff claimed that a nurse employed by the facility negligently inserted the Foley catheter into the patient.

To me, even thinking about a proper catheterization makes me grimace. The plaintiffs allege that the nurse improperly inflated the catheter before inserting it. That sounds excruciatingly painful!

As required in all Texas health care liability claims, the plaintiff needed to produce one or more expert reports to establish the standard of care, breach of the standard of care, proximate causation, and damages. Proximate causation is the link between the health care mistake and injuries or damages.

To comply with the statutory expert report requirement, the plaintiff timely produced an expert report from a registered nurse who was also a family nurse practitioner. The expert report clearly described the standard of care and how the facility’s nurse violated it—nurses aren’t supposed to insert inflated catheters. The problem arose when the plaintiff relied on the nurse to provide causation testimony.

After the deadline passed, the facility objected to the sufficiency of the expert report and the trial court dismissed the case without even holding an oral hearing. The court of appeals upheld the decision, noting the well-settled law that only a physician can provide causation testimony.

I can see how this would be confusing to the public or even to attorneys who don’t regularly handle health care liability claims in Texas. After all, it is within the scope of practice for nurse practitioners to make diagnoses and even prescribe medications.

Yet, Texas Civil Practice & Remedies Code Section 74.403 is clear that only physicians are qualified to render opinions on the causal relationship between the alleged departure from the accepted standard of care in the injury, harm, or damages claimed.

Understanding the statute, the outcome of this case was easy to predict. From a practical perspective, this means that a Texas medical malpractice plaintiff will always need at least one physician expert in a case, even if there are no allegations of negligence involving physician care.

If you’ve been seriously injured because of poor medical, hospital, or nursing care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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