Connecticut Appellate Court Upholds the Preclusion of Plaintiff's Nursing Standard of Care Expert
In Ruff v. Yale-New Haven Hospital, No. AC 37749 (officially released May 2, 2017), the Connecticut Appellate Court unanimously affirmed the trial court's preclusion of a nursing expert who lacked "active involvement in the practice or teaching of [nursing] within the five-year period before the incident giving rise to the claim." The Ruff decision gives teeth to the statutory "five year" rule for non-specialist expert witnesses, such as nurses, who seek to testify in medical malpractice cases. See Conn. Gen. Stat. § 52-184c. Importantly, the Ruff decision, which resulted from the efforts of Wiggin and Dana partners Erika Amarante and Kim Rinehart, sends a message that standard of care experts must have relevant, real-world experience before they may judge their peers.
The Trial Court's Preclusion of Plaintiff's Nursing Expert
The trial court granted the Defendant's motion to preclude Plaintiff's sole standard of care expert, Donna Maselli, after carefully reviewing her deposition testimony. Ms. Maselli had been disclosed by the Plaintiff in a lawsuit alleging that a registered nurse had negligently inserted a foley catheter, which is a device that drains a patient's urine directly from the bladder. Although the Plaintiff's expert was licensed as a registered nurse, she had been employed by a state agency in a purely administrative role for fifteen years prior to the date of the alleged malpractice. She admitted during her deposition that her job did not involve the clinical care of patients and that she had not inserted a foley catheter since the 1980s. Ms. Maselli also had a side business devoted to litigation consulting, but that also involved no clinical patient care. Although she claimed to provide private duty nursing care to friends and family, she acknowledged that this was usually done free of charge and that such care did not include medications or treatments and was not rendered under the direction of a physician or APRN.
Because Ms. Maselli was not a specialist such as a board-certified physician, the trial court considered whether she was qualified to testify as a "similar health care provider" under § 52-184c(b), or under § 52-184c's catch-all provision, subpart (d). Section 52-184c(b) defines "similar health care provider" as "one who: (1) is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." (Emphasis added). Section 52-184c(d) is a residual provision that gives the trial court additional discretion to permit expert testimony. It permits expert testimony from a witness who does not meet the statutory definition of "similar healthcare provider," but, "to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
The trial court concluded that Ms. Maselli failed both tests because she did not meet the five-year active practice requirement – the so called "five year rule" – applicable to both subsections of the statute. The Plaintiff rested his case without a standard of care expert. Defense counsel moved for a directed verdict because the Plaintiff could not meet his burden of proof, and the trial court directed a defense verdict.
The Appellate Court Decision
The Appellate Court affirmed the trial court's decisions on both the motion to preclude Ms. Maselli and the motion for directed verdict. The Appellate Court first emphasized that the decision of whether or not to preclude an expert witness is a matter left to the sound discretion of the trial court, which is not overturned absent abuse of discretion. The Appellate Court agreed that the trial court properly precluded Ms. Maselli under the "five year rule," opining that although the nurse who placed the foley catheter and Ms. Maselli were both trained and licensed as registered nurses, Ms. Maselli was no longer involved with the type of "clinical care nursing" practiced in the hospital setting. Further, Maselli had not actively practiced nursing for "far more" than five years prior to the incident. The court rejected Plaintiff's claim that providing "private duty nursing care" to family and friends qualified as active practice, noting that such care was not rendered at the direction of a physician and citing the nursing scope of practice statute, Connecticut General Statutes § 20-87a(a). The Appellate Court next affirmed the trial court's directed verdict for the defense, opining that "[a] directed verdict is justified if the plaintiff fails to present any evidence as to a necessary element of his or her cause of action." In Ruff, the Plaintiff presented no evidence regarding the nursing standard of care.
Ruff makes it clear that Connecticut courts will not shy away from requiring expert witnesses to walk a mile in a healthcare provider's shoes before they may criticize his or her care in a malpractice lawsuit.
Wiggin and Dana partner Erika Amarante served as trial counsel in Ruff, and Wiggin and Dana partner Kim Rinehart served as appellate counsel.