Who Can Testify as to the Standard of Care of a Nurse Practitioner?

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Avoiding Liability Bulletin – September 15, 2013

In a very early bulletin, I discussed the standard of care of a registered nurse and who could testify as to that standard.  You may recall that the standard of care is what other ordinary, reasonable and prudent registered nurses would do in the same or similar circumstances in the same or similar community.  The standard should always be testified to by a nurse expert witness.

The same principle applies to nurse practitioners (NPs).  When a nurse practitioner is named in a suit and his or her care is at issue in the case, it is a nurse practitioner who is qualified to testify to the nurse practitioner’s standard of care.  A Texas 2007 case illustrates this very point. 1

In 2002, a female patient was admitted to the ED at a hospital in Texas.  An admitting physician was present in the ED as was a Family NP who initially saw the patient.  Her symptoms included a two-week long bout of headaches, nausea and vomiting.  The NP diagnosed the patient with a migraine and administered appropriate medications for that diagnosis. 2 She was then discharged.

Unfortunately, the following day, the patient was taken to another hospital where she died from a massive intracranial hemorrhage.  The patient’s family filed a wrongful death suit against the two ED physicians and the NP.

As is required under Texas law, the family also filed an initial expert report, and then an amended one, authored by a physician, as to the merit of the suit, including the standard of care of the health care providers involved. The NP asked that the trial court dismiss the suit against him because the amended expert report was not in conformity with Texas law.  The two physicians also asked that the suit be dismissed as well due to the inadequate amended expert report.  The trial court denied the motions of the NP and the physicians.  All appealed that decision to the Court of Appeals of Dallas, Texas.

In his brief, the NP stated the reasons for his appeal were: 1) that the expert, a physician, was not qualified to testify as to the NP’s conduct; 2) in the report, the expert did not state the applicable standard of care for an NP; and 3) the expert failed to adequately set forth causation (that is, that the NP’s conduct was the legal cause of the death of the patient). 3

The Appeals Court carefully analyzed the civil practice code of Texas as it applied to professional negligence cases. The physician expert had tried to say that the NP “assumed the duties of a physician when he undertook to examine, diagnos[e] and treat..” the patient. 4  The Court discussed at length the scope of practice of an NP and other aspects of the Texas Administrative Code applicable to the NP’s practice.  

The Appeals Court held that the trial court abused its discretion in denying the NP’s motion to dismiss based on an inadequate amended expert report.  Because the Court ruled in favor of the NP on this issue, they did not address the NP’s second and third points in his brief.

This case is an important one, as it upholds the necessity of using an NP to render an opinion as to a NP’s conduct when the NP is alleged to have been professionally negligent.  It is also important in its underscoring of the nurse practice act and administrative code that regulate the practice of the NP.

What this case does not stand for is that the NP’s care was non-negligent. 5  Clearly, his assessment of the patient’s symptoms and what their origins were was not correct.  Had the plaintiff’s family submitted a qualified expert report that discussed the standard of care for an NP and that in this case, it was breached, and the breach caused the death of the patient, the Appeals Court would have kept the NP in the case and sent it back to the trial court for a trial.

If, as an NP, you are ever named as a defendant in a lawsuit, one of the first things your attorney will do will be to evaluate the expert report required when a lawsuit alleging negligence and/or wrongful death is filed.  If the expert’s report is not authored by a qualified professional, the case is quite ripe for a dismissal against you as an NP.

Even so, do not assume that the scenario that occurred in this case may help you.  As an NP, you must always provide competent, non-negligent care to those to whom you provide care.  Legal errors can be made by attorneys who represent patients and their families.  But don’t count on one or two being made in your case.  Such an approach is much too risky.

By the way, the Appeals Court held there was not an abuse of discretion in denying the two physicians’ motion to dismiss and affirmed the trial court’s decision.

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  1. Simonson v. Keppard, 225 S.W. 3d 868 (Tex. App. 2007).
  1. Id., at 871.
  1. Id.
  1. Id., at 873.
  1. A. David Tammelleo, “Nurse Practitioner not Liable for Failure to Diagnose, 48 NLRR 2 (July 2007), 2.



Nancy Brent

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

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