A lawyer challenges the legitimacy of an expert’s opinion after an NP misses an incipient stroke.

Mr. L, 37, was a nurse practitioner in the busy emergency department of a large hospital. He was on duty when a 56-year-old woman came in complaining of a headache that had lasted for two weeks, along with nausea and vomiting. The patient’s regular physician was on vacation, and his answering service advised her to seek immediate help rather than wait for his return. While she was hesitant to go to the hospital, the unremitting head pain and nausea finally prompted her to go to the emergency department (ED).

A physician admitted her to the ED, and Mr. L treated the woman. After discussing her symptoms and performing an exam, Mr. L told the patient she had a migraine, and a second physician signed off on the diagnosis. Mr. L then administered a sumatriptan (Imitrex) injection to treat the migraine. Several hours later, after noting a “slight improvement” in the patient’s chart, he released her from the hospital.


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Disaster ensued the next day, when an ambulance rushed the woman to a different hospital where she died of a massive intracranial hemorrhage. Her family hired a plaintiff’s attorney and filed a lawsuit against Mr. L, as well as the two physicians who were in the ED when the diagnosis of a migraine headache was made.

As a required part of the lawsuit, the plaintiff’s lawyer introduced a report from an expert: a neurologist who had also worked in emergency medicine. According to this doctor, the woman’s death could have been avoided.

The expert contended that an early diagnosis of cerebellar infarction or hemorrhage would have prompted admission to the hospital’s ICU where a combination of medication and monitoring might have prevented neurologic deterioration.

Even if neurologic deterioration did occur, the expert argued, it would have taken place under the watchful eyes of doctors who could quickly have provided lifesaving interventions, such as a craniotomy or ventriculostomy.

The neurologist conceded that migraine headaches commonly present with nausea and vomiting and are more common in women. However, the two-week duration of this patient’s headache should have raised suspicions since most migraines typically resolve in 4–72 hours.

A patient showing up in the ED with the symptoms this woman described should have been sent for a CT scan or a neurologic consult. These likely would have led to a proper diagnosis of cerebellar infarction or hemorrhage and prompted immediate hospitalization. Failure to order a CT scan or neurologic consult caused the patient’s death, the expert concluded. Mr. L and the two ED physicians were responsible because they did not provide the acceptable standard of care for which they were accountable.

Upon receiving a copy of this report, Mr. L’s attorney made a motion to dismiss the case because the expert was a physician, with little to no knowledge about NPs. Therefore she was not in a position to testify about the standard of care that is expected of an NP. The plaintiff’s lawyer countered that Mr. L had assumed the duties of a physician when he undertook diagnosing and treating the patient. Consequently, he should be held to a physician’s standard of care.

The judge didn’t buy the plaintiff’s lawyer’s argument. He dismissed the case, agreeing that the neurologist lacked the qualifications to judge the standard of care for an NP.

But things did not go as well for the two doctors. They asked that the case against them be dismissed because the neurologist expert wasn’t qualified in the field of emergency medicine and because her opinion on the cause of the patient’s death was speculative. The defense lawyers argued that the expert did not explain how the failure to order a CT scan or a neurologic consult had caused the patient’s death.

The judge disagreed. He ruled that the neurologist had submitted adequate credentials to establish her experience in both neurosurgery and emergency medicine. As a result, she was qualified to give a valid opinion about the diagnosis that should have been made, the tests that should have been given to confirm it, and the patient’s likely survival if she’d been diagnosed properly.

The judge refused to dismiss the case against the ED physicians and scheduled the case for trial. But the lawyers reached a settlement for an undisclosed sum before a jury was selected.

Legal background

Medical experts are a necessary evil employed by both sides in a malpractice or negligence case. They are used to prove whether or not a health-care provider met an expected “standard of care”; that is, whether the provider did what an ordinarily prudent clinician would do under the same circumstances. In this case, the plaintiff’s expert tried to show that Mr. L’s misdiagnosis fell short of the mark, depriving the patient of potentially lifesaving treatment.

Expert witnesses must meet several criteria before they are allowed to testify or to give an opinion. They must practice in the same field as the defendant. They must be knowledgeable about the accepted standards of care for the illness or condition in the claim. And finally, they must be qualified by training or experience to be able to offer a legally valid opinion regarding those standards of care.

Mr. L’s lawyer challenged the plaintiff’s expert on the grounds that she knew nothing about the standard of care applicable to NPs. She had never been an NP, never worked with or supervised NPs, and had no familiarity with the protocols under which NPs work. Therefore, she could not offer a valid expert opinion about what an NP should or shouldn’t have done when this patient presented at the ED.

The bottom line here is that Mr. L got lucky. Were it not for the plaintiff’s attorney’s poor choice of an expert, Mr. L would have been in the same position as the doctors. Had the attorney presented a qualified NP to testify about the standard of care that Mr. L owed the patient, the result of his case might have been radically different.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.