Nursing Expert Not Allowed to Opine on Patient Care

In this Federal Tort Claims Act ("FTCA") case, Plaintiff Regina Eppard alleged that an employee of the United States committed medical malpractice resulting in the death of her daughter, Tori Eppard.

Eppard sought to exclude or limit the testimony of proffered Government experts Dr. Cynthia L. Allen, Dr. Celeste R. Caulder, and Dr. John C. Schaefer.

Nursing Expert Witness

Dr. Cynthia Lynne Allen teaches nursing students at George Washington University (“GW”) and has been a Board-Certified Nurse Practitioner for 31 years.

Allen has a B.S. and M.S. in nursing and graduated as a Family Nurse Practitioner and a Doctor of Philosophy from the Medical University of South Carolina.

Want to know more about the challenges Cynthia Allen has faced? Get the full details with our Challenge Study report.

Internal Medicine Expert Witness

Dr. John Charles Schaefer is a Board-Certified Internal Medicine doctor, previously Board-Certified in Infectious Diseases, who taught at Eastern Virginia Medical School, Department of Internal Medicine from 1995 to October 31, 2023. Schaefer has published on infectious diseases, and has treated patients with infectious diseases in Virginia since 1971.

Get the full story on challenges to John Schaefer’s expert opinions and testimony with an in-depth Challenge Study.

Pharmacy Expert Witness

Dr. Celeste R. Caulder is a licensed pharmacist in North Carolina and South Carolina. She is a Clinical Professor at the University of South Carolina College of Pharmacy where she has been employed for the past twenty years.

Caulder graduated from the University of North Carolina School of Pharmacy in May 2004 with a Doctor of Pharmacy Degree (PharmD).

Gain a comprehensive understanding of Celeste Caulder's qualifications and casework history with her Expert Witness Profile report.

Discussion by the Court

Cynthia Allen

Eppard argued that Allen failed to meet the active clinical practice requirement enumerated above. The Court agreed.

Allen testified that at George Washington, inter alia, she is a “clinical experience faculty.” Although she has previously practiced as a clinical nurse practitioner, and testified that she would like to practice in that capacity again, she has not seen a patient in a clinical setting since 2017. Instead, in her current role as a clinical professor, Allen supervises nursing students, most directly by offering feedback on notes taken by the students reflecting the students' visits to patients.

Although Allen appears by all lights to be an experienced professional, she does not meet the active clinical practice requirement for this case. The relevant medical procedure is the "patient exam and differential diagnosis" provided to Tori Eppard on July 21, 2023, and to qualify as a standard of care expert, Allen would need to have "engaged in the actual performance of" such an exam and diagnosis within one year of that date. Allen's testimony that she has not seen a patient within a clinical setting since 2017 forecloses any argument that she meets the active clinical practice requirement.

Allen did not meet Virginia law's requirements to testify to the standard of care in this case considering a witness meets the active clinical practice requirement if the witness "had an active clinical practice in either the Defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action."

Celeste Caulder

Although Caulder participates in patient care as part of an interdisciplinary team, she is not licensed to practice medicine. Caulder does not independently order treatment or prescribe medications herself, nor does she perform diagnostic examinations or offer differential diagnoses. Rather, Caulder's role in patient care is typically to provide recommendations on pharmacotherapy treatment to the direct provider. Because Allen is not a physician, Virginia law prevents her from testifying to causation as an expert witness in this matter. Her testimony will therefore be excluded.

John Schaefer

Defendant also proffered Schaefer to testify to causation. Schaefer is a licensed physician, and so he satisfies Virginia's requirement to testify about causation. But that does not end the inquiry. In addition to satisfying Virginia's competency requirements, Schaefer must also be qualified to provide expert testimony in federal court. Therefore, his opinions must still be evaluated under Federal Rule of Evidence 702.

The Court found that Schaefer has the requisite specialized knowledge to offer his opinion. Schaefer has practiced medicine for over fifty years. Over the course of five decades, he has been board-certified in internal medicine and infectious diseases, and specifically relevant to this case, he has encountered several cases involving the same disseminated intravascular coagulation condition that afflicted Tori Eppard. Schaefer is well qualified to offer an expert opinion addressing the evidence in this case.

Schaefer's opinion is also based on sufficient facts or data. His written report lists the substantial evidence he reviewed in reaching his opinion, including records from: (1) the medical facility at which the alleged negligence occurred; (2) the medical facility where Tori Eppard was pronounced dead; and (3) the EMS service that transported Tori Eppard on the day she died.

He also considered the deposition transcripts of the medical professional alleged to be negligent and Eppard, and five expert reports prepared by witnesses for Eppard. Although Eppard raises additional photographic evidence that she argued Schaefer did not review, because Schaefer has reviewed sufficient facts or data to come to his opinion, any additional information that may affect the validity of that opinion goes to the weight of the opinion, not its admissibility.

Finally, Schaefer's opinions are "the product of reliable principles and methods" and reflect "a reliable application of" those principles and methods to the facts of the case. Here Schaefer relies on his more than half-century of experience in applying his knowledge to the facts of this case.

As an "experiential expert," Schaefer is required to explain how his experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts. Schaefer adequately did so by explaining conclusions about Tori Eppard's heart condition based on the appearance of her skin. Schaefer also explained conclusions about liver and kidneys based on elevated enzymes.

The Court accordingly found that Schaefer's testimony satisfies the requirements of Rule 702, and will deny Plaintiff's motion to exclude him as a witness.

Held

The Court excluded the testimony of Drs. Cynthia L. Allen and Celeste R. Caulder; however, Dr. John C. Schaefer will be permitted to testify as to causation.

Key Takeaway

The relevant inquiry is whether, within the statutory window, the witness practiced "the relevant medical procedure at issue," reviewed "in the context of the actions by which the defendant is alleged to have deviated from the standard of care."

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