Mr S was a nurse practitioner (NP) working in the emergency department of a Louisiana hospital. He was a veteran of the state’s Army National Guard where he served as an ambulance platoon sergeant. After completing his degree, he focused on emergency medicine and urgent care, and began working in the hospital’s emergency department about 5 years ago.

The patient, Mr M, was in his 60s when he came to the emergency department with complaints of pain and vision loss in his right eye. The NP examined the patient and diagnosed him with acute bacterial conjunctivitis and prescribed an antibiotic ointment. After providing the patient with a prescription and instructions on how to use the antibiotic ointment, Mr S instructed the patient to follow up with his primary care physician in the next few days.

Three days later, the patient sought treatment at a second hospital because of the onset of severe pain in his right eye. At the second hospital, an ophthalmology consultation was ordered that revealed a detached retina. Mr M was transferred to a larger hospital where he was treated for almost 3 weeks. While at the third hospital, Mr M received intravenous antibiotics and underwent surgery for the detached retina.

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After being released from the hospital, Mr M sought counsel from a plaintiff’s attorney and filed lawsuits against numerous defendants, including Mr S, his supervising physician, and the hospital where they both worked. The lawsuit alleged that Mr S failed to properly diagnose the patient’s condition, failed to refer him to an ophthalmologist, and failed to consult with an ophthalmologist. These alleged breaches in the standard of care caused the patient damages.

Mr S met with his defense attorney who told him that the defense would be filing a motion for summary judgment, asking that the case be dismissed against him because the patient had failed to produce any expert opinions, reports, or testimony in support of his cause of action, as required by state law. In addition, a medical review panel had issued an opinion finding that the evidence did not support a conclusion that Mr S had failed to meet the standard of care.

After the defense filed their summary judgment motion, the plaintiff filed an opposition to the motion, indicating that they had an expert, an ophthalmologist, who would provide expert testimony that the hospital and its staff, including Mr S, breached the standard of care for the patient resulting in a delay in treatment and increasing the likelihood of permanent vision damage. The plaintiff submitted the expert’s affidavit, expert report, and curriculum vitae as part of its opposition to the summary judgment motion to dismiss.

At a hearing on the issue, the trial court found that the expert offered by the plaintiff did not address the standard of care applicable to this case — that of an NP in an emergency department setting. Because the plaintiff failed to otherwise establish the standard of care that Mr S should be held to, how it was breached, and the damage it caused, the trial court granted the defendant’s motion for summary judgment and dismissed the case against Mr S.

The plaintiff appealed.

Legal Background

On appeal, the court first looked at who had the burden of proof and noted that the plaintiff had filed a medical malpractice claim against Mr S as such, the plaintiff was required to prove the following by a preponderance of evidence:

  • The standard of care applicable to the defendant
  • That the defendant breached that standard of care
  • A causal connection between the breach and the resulting injury

The court noted that in motions for summary judgment in the context of medical malpractice, “the burden of proof does not require that the medical care provider disprove medical malpractice but only that the medical care provider raise as the basis of its motion that the plaintiff cannot support his burden of proof at trial to demonstrate medical malpractice.” Once the health care provider shows this, the burden shifts to the plaintiff to produce factual support to establish a genuine issue of material fact.

“It is well established that to meet the burden of proof in a medical malpractice action, the plaintiff generally is required to produce expert medical testimony as a matter of law,” wrote the court in its decision. “When the defendant practices in a particular medical specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within that specialty,” noted the court. However, in opposing Mr S’s summary judgment motion, the court pointed out that the plaintiff filed an expert report from an ophthalmologist. Mr S was an NP who was practicing in an emergency department setting. As such, the expert doctor’s affidavit and report failed to address the standard of care owed by an NP, and no other evidence was provided that established any overlap in the medical specialties.

The court also noted that the expert’s report failed to mention any standard of care owed by Mr S or that Mr S had breached any standard of care. The court mentioned that the expert’s report had likewise failed to establish that any breach caused the plaintiff’s damages. Thus, the court concluded that the plaintiff had failed to establish a case against Mr S, and the court granted his motion to dismiss.

Protecting Yourself

Had the plaintiff introduced an NP expert witness who could testify that Mr S should have done something more, this case might have proceeded further. It clearly would be unfair to judge an NP against the level of knowledge of an ophthalmologist. Vision loss, however, is a serious symptom and an ophthalmology consult might have been wise.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.