Cornerstone Hospital v. Marner (CA2 12/7/12)

We sympathize with the judges of CA2, condemned to a life almost entirely devoted to criminal cases (about 80% – and the remainder include domestic relations and other cases many of us wouldn’t quite consider civil). But this was a bit of a stretch.

Plaintiff sued under the Adult Protective Services Act (46-451 et seq.) for the death of his wife. One of the defendants was a hospital and so he named an expert (a nurse). The hospital challenged the expert; the trial court ruled that she could testify about some things but not others. But the order also said that 12-2604 (expert witness qualifications in medical malpractice actions) does not apply to APSA cases. Cornerstone took a special action.

The trial court’s order specifically ruled that the nurse was qualified even if 2604 applied. That was the effective part of the ruling. The hospital’s argument was that the court let her talk about too much. Whether the statute applied was an inessential part of an evidentiary ruling.

So the Court of Appeals decides that this is the case on which to address the issue.

Why? Why bother to take this special action? The court gives three “compelling reasons.”

First, “the challenged ruling is interlocutory in nature” so “there is no direct review . . . by appeal.” And here we thought that was merely a prerequisite to a special action. Silly us; now we know that every special action contains at least one “compelling reason” to accept it.

Second, whether the statute applies is question of law. True enough. And that’s a reason to accept a special action. But, again, since when is it a “compelling” reason?

Third, it is a question of “first impression and statewide importance.” And that’s the key. The court apparently took this special action because it wanted to. It reached out to grab an issue not because there was any real need to but because the issue piqued its interest.

The court concludes, after a workmanlike but hardly outstanding analysis, that 2604 applies to APSA claims against health care providers.

And so it grants relief? Nope; the opinion tells us that even before it begins its statutory analysis. RNs can testify, the court confirms, as to other RNs but also as to LPNs and nursing assistants The fact that they are separately licensed by the state does not require an expert licensed in each specialty. LPNs and CNAs are subordinate to RNs and have more limited skills. The court set the proper bounds on the nurse’s testimony.

So much for that “compelling” 2604 issue.

(link to opinion)