Applewhite v Accuhealth, Inc., 2010 NY Slip Op 09570 (1st Dept. 2010)
In a decision that produced a three judge majority and a two judge concurrence with a partial dissent, the Appellate Division, First Department discussed the issue of nursing malpractice in relation to the failure to provide epinephrine (in an epi-pen) to counter analphylactic shock. While I find this a facinating case, you may not and that is alright. There is an interesting rule of law that is dispositive of this case that is highly relevant in light of, all things, the paradigm involving whether a PMR or neurologist can comment on the necessity of services that a chiropractor performs or refers.
Factually and as limited for purposes of this discussion, the issue involved the standard of care a nurse who specilized in home infusion therapy should exercise. Defendant’s expert, while a nurse, lacked this background. This was fatal to Defendant’s prima facie entitlement to summary judgment. To quote the majority:
“The statements in Heuser’s (who was the defendant’s expert) affidavit regarding Russo’s duty to secure epinephrine failed to shift the burden on that issue for the additional reason that, as the motion court correctly determined, Heuser was not qualified to render such an opinion…Here, the motion court was correct as Heuser did not have any experience in home infusion. There is no evidence that her general nursing experience afforded her any insight into those skills unique to home infusion nurses. That absence is critical here. Because none of the experience Heuser did purport to have was necessarily transferable to the issue of whether Russo should have carried out the infusion on plaintiff without having epinephrine available, and because she failed to lay any other “foundation . . . tending to support the reliability of” her opinion, the motion court properly rejected Heuser’s affidavit when considering the epinephrine issue (see Behar v Coren, 21 AD3d 1045, 1047 [2005], lv denied 6 NY3d 705 [2006]).”
The concurrence would have denied the motion based upon Plaintiff’s tendering sufficient evidence to defeat Defendant’s prima facie entitlement to summary judgment. Justice Saxe observed the following:
“While experts must possess the requisite skill, training, knowledge or experience to establish that their opinion is reliable, they do not have to be specialists in the same field as that of the defendant, as long as they lay the foundation to support the reliability of their opinions (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], lv denied 6 NY3d 705 [2006]). It is not required in New York that an expert witness possess a particular certification in order to be qualified as an expert as long as the expert had the requisite degree of knowledge to testify as to the tasks at issue (see Bodensiek v Schwartz, 292 AD2d 411 [2002]). Under New York law, the practice of all nurses, other than nurse practitioners, is governed by the same statute (Education Law § 6902). As Nurse Russo pointed out at her deposition, registered nurses working in hospitals regularly encounter anaphylactic reactions to emergency treatment; anaphylaxis is not a complication that occurs uniquely in the home infusion setting. Therefore, any registered nurse [*15]with hospital experience would be qualified to testify on the issue of the standard of care relevant to an anaphylactic patient. Anne Heuser was a registered nurse with 19 years of experience, who had worked in emergency rooms and trauma centers, including hospitals in the New York area. This adequately laid the foundation for her opinion, and her affidavit should not have been rejected as a matter of law. While the question of whether an expert witness is qualified generally rests in the sound discretion of the trial court (Matter of Pringle v Pringle, 296 AD2d 828, 829 [2002]), in the context of this motion, Nurse Heuser’s affidavit was competent to establish that Nurse Russo’s conduct comported with the applicable standard of care.”
Take this case for what its worth.
