This case involves the qualifications of an expert in a case of alleged nursing malpractice.

Plaintiff was in the ICU for extensive cardiac treatment. She survived that but developed a bedsore, so she sued. She named as her expert a nurse who didn’t work in an ICU but knew about pressure ulcers. She filed a motion to have the court declare that she could use that expert. The hospital moved for summary judgment, arguing that the expert wasn’t qualified. The trial court granted the hospital’s motion. Plaintiff appealed.

The Court of Appeals first tells us the elements of a malpractice action and that you normally need an expert. Now, presumably the court didn’t feel that these are arcane issues on which there was a dearth of authority. So why does it mention them? Because our courts of appeal have apparently decided that they must at least mention – or, better yet, discuss – every issue that the parties passed through before they got to the one they now appeal. And so we routinely see discussion of preliminary issues that are not before the court and add nothing to its holding.

The parties’ argument centered on whether an ICU nurse is a specialist; Plaintiff said “no”, the hospital  (and Plaintiff’s expert) said “yes.” The court says that it doesn’t matter. The statute (12-2604A) requires that the majority of an expert’s practice in the year before the suit be either in the applicable specialty or, if a specialty isn’t involved, in general practice. Plaintiff’s expert hadn’t practiced ICU nursing in the year before the suit but hadn’t been a general practitioner, either – she was a “wound care” specialist. (She worked in long-term acute-care facility, the type of place involved here, the other recent bedsore appeal.)

But the court is clearly not agnostic on the point and does seem to feel that an ICU nurse is an expert. It mentions, in one of several long footnotes, that the Supreme Court has included as specialties areas that are “eligible for certification” and it takes judicial notice that ICU nurses can be certified as such (though this isn’t required and the hospital’s weren’t). And it specifically rejects – in the body of the opinion, not a footnote – Plaintiff’s argument that the hospital’s general policy on repositioning patients can apply to ICU patients.

But the court reverses and remands to give Plaintiff a chance to find a new expert. The trial court had denied that; the Court of Appeals, citing Preston, which it says had “similar procedural facts,” concludes that this was an abuse of discretion. The hospital seems to have filed its motion reasonably soon after deposing the expert but didn’t take the depo until after the disclosure deadline. The court doesn’t appear to suggest, as had Preston, that deliberate sandbagging was or need be involved. So is the law now that the defendant must, regardless of circumstance, depose the expert and move to disqualify while the plaintiff still has time to find a new expert if necessary, on pain of giving the plaintiff more time to find a new expert if necessary? Maybe not; the trial court apparently granted Plaintiff’s motion to use the expert before giving the hospital summary judgment on the point; wrong-footing a party was, it appears, the basis of reversal.

The opinion also discusses, at great length, a couple of evidentiary issues that may come up on remand.

(Opinion: Rasor v. Northwest Hospital)