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Aillones v. Minton

Court of Appeals of Indiana

May 30, 2017

Charles Aillones, Appellant-Plaintiff,
Glen D. Minton, Appellee-Defendant.

         Appeal from the Vanderburgh Superior Court Trial Court Cause No. 82D03-1312-CT-5493 The Honorable Leslie C. Shively, Judge

          Attorney for Appellant Rick A. Cory Scott A. Danks Danks & Danks Evansville, Indiana

          Attorneys for Appellee Shawn Swope Michael J. DeYoung Swope Law Offices, LLC Schererville, Indiana

          Attorneys for Intervening party, safe auto insurance Brett M. Haworth David M. Henn Henn Haworth Cummings Page Greenwood, Indiana

          MATHIAS, JUDGE.

         [¶1] Charles Aillones ("Aillones") filed a negligence claim against Glen Minton ("Minton"), alleging that Aillones was injured during an automobile accident that was Minton's fault. Aillones was treated by a nurse practitioner, and during deposition, Minton's counsel objected to testimony by the nurse practitioner regarding whether Aillones's injuries were caused by the accident. Aillones then filed a motion asking the Vanderburgh Superior Court to qualify the nurse practitioner as an expert witness. The trial court denied this motion, but certified its order for interlocutory appeal on Aillones's request. This court accepted interlocutory jurisdiction to address the question of whether the trial court erred in concluding that Aillones's witness, a nurse practitioner, cannot be an expert witness. Concluding that a nurse practitioner can, under the proper circumstances, be an expert witness, we reverse.

         Facts and Procedural History

         [¶2] On June 2, 2012, Aillones was driving his vehicle in Evansville, Indiana when he was struck from behind by a vehicle driven by Minton. Aillones was injured in the collision and received treatment from Alan Swartz ("Swartz"), a licensed nurse practitioner, for a cervical sprain and pain in his lower back.

         [¶3] Swartz studied nursing at the University of Southern Indiana, where he received a bachelor's degree in nursing. Thereafter, he continued his studies at the University of Southern Indiana and received a master's degree to be a nurse practitioner. Swartz is licensed and board certified to practice as a nurse practitioner in both Kentucky and Indiana. As a nurse practitioner, Swartz examines and treats patients. He also interprets lab results and can prescribe certain medications and refer patients to occupational or physical therapy. During the course of his practice, Swartz has seen more than 100 patients who have been injured in automobile accidents.

         [¶4] Swartz first saw Aillones on June 12, 2012, when Aillones presented with neck pain, headache, and pain in the mid-back when he sat. Swartz diagnosed Aillones with a concussion and cervical sprain or spondylosis.[1] Swartz ordered a CT scan of Aillones's brain and prescribed him a muscle relaxant and ibuprofen for the pain.

         [¶5] Swartz saw Aillones again on June 29, 2012. Aillones still complained of pain in his neck and lower back. Swartz switched Aillones from ibuprofen to naproxen for the musculoskeletal pain and referred him to a physical therapist. Swartz next saw Aillones on September 12, 2012. Aillones's condition had somewhat improved, but he still complained of pain and indicated that he preferred ibuprofen over naproxen. Aillones stated that his pain only became a problem about once a week and requested either a stronger analgesic or a referral to a pain management specialist. Swartz reviewed the lab results he had obtained and switched Aillones back on ibuprofen. He told Aillones to see him again in six months.

         [¶6] On December 9, 2013, Aillones filed a negligence action against Minton. During discovery, Swartz was deposed on April 22, 2016, and testified that Aillones's injuries and improvement were consistent with soft tissue injuries. Aillones's counsel then asked Swartz, "Based on your experience and skill and education as a nurse practitioner, do you have - have you formed an opinion as to whether or not the complaints and injuries that [were] complained of by [Aillones] were caused by a car wreck on June 2, 2012?" Swartz replied, "Well, I wasn't there to see the accident, but he was in some sort of trauma that would have caused these injuries." Appellant's App. p. 72. Aillones's counsel then asked, "Assuming we have no other forms of trauma near that date, is it your opinion, to a reasonable degree of medical probability, that the injuries and complaints of Charles Aillones were caused by the automobile accident or automobile wreck of June 2, 2012?" Id. Swartz answered, "I say it's consistent with a motor vehicle accident, " and after another similar question, "I think it would be consistent with what was described to me from his injury that he suffered." Id. at 72-73. Minton's counsel objected to each of these questions based on a lack of foundation for Swartz's opinions. Id.

         [¶7] On May 19, 2016, Aillones filed a motion titled, "Plaintiff's Motion for Hearing on Objection Asserted During Evidentiary Deposition and a Finding that a Nurse Practitioner Qualifies as an Expert Witness on Causation." Appellant's App. p. 26. After a response by Minton, the trial court held a hearing on Aillones's motion on July 1, 2016, at the conclusion of which the court took the matter under advisement. on July 7, 2016, the trial court entered an order denying Aillones's motion, which provided in relevant part:

The court having conducted oral argument on the issue of whether a nurse practitioner is an expert witness on causation and having heard the argument of counsel, now rules that a nurse practitioner in this case would not qualify as an expert witness. The court relies upon Nasser v. St. Vincent Hosp. and Health Services, 926 N.E.2d 43 (Ind.Ct.App. 2010).

Appellant's App. p. 22.

         [¶8] On August 5, 2016, Aillones filed a motion to reconsider or, in the alternative, to certify the court's ruling for interlocutory appeal. The trial court then granted Aillones's request to certify its order for interlocutory appeal. Aillones then petitioned this court to accept interlocutory jurisdiction on September 20, 2016, which we granted on October 25, 2016.

         Standard of Review

         [¶9] We review decisions concerning the admissibility of evidence only for an abuse of discretion. Arlton v. Schraut, 936 N.E.2d 831, 836 (Ind.Ct.App. 2010), trans. denied. An abuse of discretion occurs if the trial court's decision is clearly erroneous and against the logic and effect of the facts and circumstances before the court or if its decision is without reason or is based upon impermissible considerations. Id. However, to the extent that the evidentiary issue depends on the construction of a rule of evidence, and not the rule's application to any particular set of facts, our review is de novo. Id.

          Discussion and Decision

         [¶10] Aillones claims that the trial court erred by concluding that Swartz, a nurse practitioner, could not testify as an expert witness with regard to the causation of Aillones's injuries. The admission of the testimony of expert witnesses is governed by Indiana Evidence Rule 702, which provides in relevant part:

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

         [¶11] Thus, for a witness to qualify as an expert, the subject matter of the witness's testimony must be distinctly related to some scientific field, business, or profession beyond the knowledge of the average person, and the witness must have sufficient skill, knowledge, or experience in that area so that the opinion will aid the trier of fact. Hastings v. State, 58 N.E.3d 919, 924 (Ind.Ct.App. 2016) (Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999)). "'If the witness has any peculiar knowledge or experience not common to the world that renders the witness's opinion founded upon that knowledge any aid to the trier of fact, the witness may testify as an expert.'" Id. (quoting 13 Indiana Practice, Indiana Evidence § 702.107 (3d ed.)). As we noted in Hastings, Indiana courts have allowed testimony from experts who had no formal training, e.g. drug users who testified regarding the identity of drugs based on their own experience. Id. (citing Clark v. State, 6 N.E.3d 992, 998 (Ind.Ct.App. 2014)).

         [¶12] The trial court here based its decision on the opinion of this court in Nasser v. St. Vincent Hospital & Health Services, 926 N.E.2d 43 (Ind.Ct.App. 2010). In that case, the plaintiff sued the hospital claiming malpractice because the nursing staff at the hospital did not respond to the plaintiff's repeated calls for help, thereby leaving the plaintiff alone to deliver two stillborn fetuses in her hospital bed. Id. at 44. The convened medical review panel consisted of two medical doctors and one registered nurse. Id. The two doctors concluded that the hospital did not fail to meet the applicable standard of care and that the conduct complained of was not a factor in the plaintiff's damages. Id. The nurse, however, concluded that the hospital did fail to meet the applicable standard of care and this failure was a factor of the resultant damages. Id.

         [¶13] Pursuant to the applicable portions of the Medical Malpractice Act ("MMA"), the defendant hospital filed for summary judgment and, in support of its motion, submitted the opinion of the physicians comprising the majority of the medical review panel. Nasser's designated evidence in response to the hospital's motion included the opinion of the nurse who had dissented from the majority in the medical review panel. The trial court granted summary judgment in favor of the hospital, concluding that Nasser was required to counter the opinion of the medical review board with expert testimony from a physician. Id. at 47.

         [¶14] On appeal, we noted that, pursuant to the MMA, nurses are qualified to serve on medical review panels, the opinion of the review panel are admissible as evidence, and members of the panel may testify. Id. at 51-52 (citing Ind. Code § 34-18-10-23). However, we held that Indiana Evidence Rule 702 prevents nurses from qualifying as experts regarding medical causation, even when they served on the medical review panel. Id. at 52. Because Nasser had not designated any other evidence regarding causation, we affirmed the trial court's grant of summary judgment. Id.

         [¶15]Nasser relied upon Long v. Methodist Hospital of Indiana, Inc., 699 N.E.2d 1164 (Ind.Ct.App. 1998), which addressed whether a nurse could offer expert testimony as to the medical causes of injuries. The Long court held that because there is a significant difference in the education, training, and authority to diagnose and treat diseases between physicians and nurses, the determination of the medical cause of injuries, which is obtained through diagnosis, for purposes of offering expert testimony is beyond the scope of nurses' professional expertise. Id. at 1169. Therefore, the Long court concluded that the nurse was not qualified to offer expert testimony on the issue of whether Methodist's conduct caused the plaintiff's injuries. Id. Consequently, the Long court held that the trial court did not err in striking the nurse's affidavit as to the issue of causation.[2]Id.; see also Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 398 (Ind.Ct.App. 2010) ("Based upon Long, we conclude that [the nurse's] affidavit ...

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