Who Qualifies As An Expert for Certified Nurse Midwife Malpractice Litigation?

According to a March 2014 report by the American College of Nurse-Midwives presenting the most recent data from the National Center for Health Statistics, certified nurse-midwives (CNMs) and certified midwives (CMs) attended 313,846 births in 2012. This represents 7.9% of U.S. births. CNMs and CMs have accounted for more than 90% of all midwife-attended births since 1989—the first year that CNM and CM statistics were made available. Since 1989, the percentage of CNM- and CM-attended births has risen nearly every year. In 2012, CNMs and CMs attended 7.6% of all hospital births, a 6% increase from 2005 (7.2%). The percentage of out-of-hospital births attended by CNMs and CMs also increased 6% over this period, from 28.6% in 2005, to 30.4% in 2012.

midwifeAs CNMs and CMs attend more births, they become more likely to be the subject of medical malpractice suits. In this expanding legal field, one common issue is who qualifies as an expert for CNM malpractice litigation. Many states require that the plaintiff’s medical expert in a medical malpractice action be a “similar health care provider” to the defendant in order to testify as to the applicable standard of care. Often states allow a “more qualified” health care provider to testify as to the applicable standard of care for subordinate health care providers, such as a neurosurgeon testifying as to the standard of care applicable to a surgeon who operated on a patient’s brain. An expert with matching credentials is ideal, but not always available. In the case of CNM malpractice, the next-best expert choice is not a well-settled area of law.

Most recently, a split has arisen among the courts who have addressed the question whether OB/GYNs qualify as experts as to the standard of care that applies to CNMs. In a recent case, <c>Wilkins v. Connecticut Childbirth and Women’s Center, 2014 WL 6804197, 314 Conn. 709 (Conn., December 9, 2014)</c> (not designated for publication), the Connecticut Supreme Court held that an OB/GYN was a “similar health care provider” to a CNM for purposes of that state’s medical malpractice expert requirement. This directly contradicts the Georgia Supreme Court’s 2013 decision in <c>Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726 (Ga., October 7, 2013)</c>, which held that a board-certified obstetrician and gynecologist who had experience performing obstetrical maneuvers to address shoulder dystocia, was not qualified to testify as an expert witness regarding treatment rendered by a CNM in handling shoulder dystocia during delivery because the OB/GYN was neither a member of the same profession as the CNM nor had supervised CNMs. Georgia’s holding aligns with the Michigan Court of Appeals decision in <c>McElhaney ex rel. McElhaney v. Harper-Hutzel Hosp., 269 Mich.App. 488, 711 N.W.2d 795 (Mich.App., January 19, 2006)</c>, which held that the plaintiff’s two OB/GYN experts did not practice in “the same health profession” as the CNM whose actions were at issue in that case.

A similar split occurs among courts who have considered whether nurses may be experts in CNM malpractice cases. A few lower courts have held that nurses do not qualify as experts regarding the standard of care applicable to CNMs. For example, the U.S. District Court for the District of Alaska held that a family nurse practitioner was not a qualified expert regarding the standard of care applicable to a CNM in <c>Pete v. U.S., 2013 WL 4501451 (D.Alaska, August 22, 2013)</c> (not designated for publication). The Michigan Court of Appeals has not ruled directly on the issue of whether a labor and delivery nurse can qualify as an expert regarding the standard of care applicable to a CNM. However, in <c>In re Estate of Douglas, 2012 WL 2946053 (Mich.App., July 19, 2012), appeal denied, 493 Mich. 928 (Mich. Jan 25, 2013)</c>, the court ruled that CNMs did not practice the same health profession as the labor and delivery nurse whose actions were at issue in that case. By logical extension, the labor and delivery nurses would not qualify as experts regarding the standard of care applicable to CNMs in Michigan.

On the other hand, other lower courts have held that nurses do qualify as experts regarding the standard of care applicable to CNMs. For example, North Carolina, where the Court of Appeals ruled in <c>Grantham ex rel. Trust Co. of Sterne, Agee & Leach, Inc. v. Crawford, 204 N.C.App. 115, 693 S.E.2d 245 (N.C.App., May 18, 2010), review denied, 364 N.C. 325 (N.C. Aug 26, 2010)</c> that a registered nurse who was also a certified nurse midwife qualified as an expert with regard to labor and delivery nurses. By logical extension, labor and delivery nurses would qualify as experts regarding the standard of care applicable to CNMs, so long as an RN/CNM testifying about labor and delivery nurses was not considered a “more qualified” health care provider testifying as to the applicable standard of care for subordinate health care providers. Similarly, in <c>O’Hare v. Bastarache, 74 Mass.App.Ct. 1129, 911 N.E.2d 240, 2009 WL 2461240 (Mass.App.Ct., August 13, 2009)</c> the Massachusetts Court of Appeal held that a registered professional nurse with over 30 years of experience in medical-surgical nursing was familiar with the standard of care for nurses and nurse midwives as it applied to the care and treatment rendered to a patient during her labor and delivery such that she was qualified to submit an expert opinion letter to the medical malpractice tribunal in a proceeding involving alleged malpractice by nurses and a nurse midwife during the patient’s labor and delivery.

When addressing the qualifications of a different type of practitioner with regard to CNMs, consider both the state’s medical malpractice expert requirements and the state’s statutes pertaining to CNMs. The Connecticut Supreme Court’s reasoning behind holding that OB/GYNs qualified as experts with regard to CNMs was primarily based on the state’s statutes. The court noted that the text of the Connecticut statute pertaining to medical malpractice experts, C.G.S.A. § 52–190a(a), accommodated a circumstance in which two different types of medical professionals were board certified in the same medical specialty. Additionally, Connecticut’s statutory scheme governing CNMs, C.G.S.A. § 52–184c(c), required that a CNM work in conjunction with a certified OB/GYN.

See: <c>Wilkins v. Connecticut Childbirth and Women’s Center, 2014 WL 6804197, 314 Conn. 709 (Conn., December 9, 2014)</c> (not designated for publication).

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details, see the Scalpel Weekly News, December 15, 2014.

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See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability (to be published January 7, 2014).

The content of this blog is provided for informational purposes only, and does not constitute legal advice.
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