The Indiana Court of Appeals recently ruled that the trial court should have allowed a nurse practitioner to testify as an expert witness. Aillones v. Minton, 2017 Ind. App. LEXIS 226 (Ind. Ct. App. May 30, 2017). This case arose out of a motor vehicle accident in Evansville, Indiana, in which Plaintiff Charles Aillones was struck from behind by a vehicle driven by Defendant Glen Minton. Aillones was injured and received medical treatment from Alan Swartz, a licensed nurse practitioner, for a cervical sprain and pain in his lower back. Aillones filed a lawsuit alleging negligence against Minton for his injuries. During discovery, Swartz was deposed and testified that Aillones’ injuries were consistent with a motor vehicle accident. Plaintiff’s counsel moved to qualify Swartz as an expert witness. Following oral argument, the trial court concluded that a nurse practitioner could not qualify as an expert witness based on the decision in Nasser v. St. Vincent Hospital & Health Services, 926 N.E.2d 43 (Ind. Ct. App. 2010).
On appeal, Aillones argued that the trial court erred in concluding that Swartz could not testify as an expert witness with regard to the causation of his injuries. The appellate court determined that no blanket rule prevents a nurse from acting as an expert witness. Under Indiana Evidence Rule 702, the pertinent question to consider is whether the witness has sufficient knowledge, skill, experience, training or education and if his/her specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. The appellate court acknowledged that Swartz has a bachelor’s degree in nursing and a master’s degree to be a nurse practitioner. Further, Swartz is licensed to treat patients, interpret lab results, and prescribe certain medications. As a result, the appellate court concluded that Swartz has sufficient knowledge, skill, experience, training or education to testify as an expert witness. However, as Swartz was not a witness to the accident, he may not testify that Aillones’ injuries were proximately caused by the accident. Instead, Swartz may testify whether, in his expert opinion, Aillones’ injuries were consistent with injuries from an automobile accident. Ultimately, the trial court’s order finding Swartz could not testify as an expert was reversed and remanded.
Practical Application of Retaining Nurse Practitioner as Expert Witness
Although the Court of Appeals in Aillones determined that a nurse practitioner may testify as an expert witness, it is important to recognize this type of expert testimony is not appropriate for every case. Aillones involved a simple tort claim; it was not a medical malpractice case regarding a medical provider’s conduct. Defense attorneys may consider utilizing a nurse practitioner as an expert witness in smaller cases arising out of a motor vehicle accident. Please be aware, however, that expert testimony from a nurse practitioner will be limited to such simple tort claims. The nurse practitioner will not be allowed to provide expert opinions on surgery or medical malpractice. Further, defense litigators should conduct a thorough investigation into a nurse practitioner’s knowledge, skill, experience, training and education before retaining that individual as an expert witness. It will be important to recognize ahead of time whether your nurse practitioner has the confidence to testify in court or stand by their opinions during a difficult deposition faced with skilled cross-examination. With that said, there could be significant value to those carriers who consistently deal with high-volume, low-value personal injury cases. Rather than expending significant fees for a high-profile expert, defense litigators can now seriously consider whether a nurse practitioner may be a cost-effective tool in the right circumstances. In fact, as we saw in Aillones, the plaintiff’s bar is already doing so. Under limited circumstances, defense attorneys and carriers should also consider whether their case may benefit from retaining a nurse practitioner as an effective expert witness.
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