Charles Aillones v. Glen D. Minton

FILED
May 30 2017, 10:04 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rick A. Cory Shawn Swope
Scott A. Danks Michael J. DeYoung
Danks & Danks Swope Law Offices, LLC
Evansville, Indiana Schererville, Indiana
ATTORNEYS FOR INTERVENING
PARTY, SAFE AUTO INSURANCE
Brett M. Haworth
David M. Henn
Henn Haworth Cummings + Page
Greenwood, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Charles Aillones, May 30, 2017
Appellant-Plaintiff, Court of Appeals Case No.
82A01-1609-CT-2138
v. Appeal from the Vanderburgh
Superior Court
Glen D. Minton, The Honorable Leslie C. Shively,
Appellee-Defendant. Judge
Trial Court Cause No.
82D03-1312-CT-5493

Mathias, Judge.

[1] Charles Aillones (“Aillones”) filed a negligence claim against Glen Minton

(“Minton”), alleging that Aillones was injured during an automobile accident

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 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.

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 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

1
Specifically, Swartz explained at the deposition, “It was probably more than a sprain, but with the
computer system at the time, I couldn’t get the proper diagnosis, which would have been a cervical sprain. So
I had to use a spondylosis in order to have the documentation in the computer at all.” Appellant’s App. p. 62.

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 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:

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 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.

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 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)).

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[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

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 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 was inadmissible for the purpose of creating an issue of fact regarding

whether Clarian’s actions were the proximate cause of Wagler’s injuries.”),

2
Nasser viewed the holding in Long implicating Indiana Evidence Rule 702. See Nasser, 926 N.E.2d at 51
(“Though not the explicit basis for the Long court’s holding, this holding implicates Indiana Evidence Rule
702.”). However, Long makes no mention of Rule 702 and appears to have been decided without any analysis
of the applicability of Rule 702. Therefore, we question whether Long has any applicability to an analysis
under Rule 702.

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 disapproved of on other grounds by Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d

1184 (Ind. 2016).

[16] These cases seem to support a bright-line rule that nurses cannot testify as

expert witnesses with regard to causation. However, the situation is more

nuanced than these cases might suggest. First, Nasser, Long, and Wagler were

medical malpractice cases and held that a nurse could not testify regarding as to

whether a medical provider’s conduct caused a patient’s injuries. The present

case, however, is a simple tort claim, not a medical malpractice claim; at issue

here is not whether a medical provider caused a patient’s injuries, but whether a

plaintiff’s injuries were caused by an automobile accident. Thus, Nasser, Long,

and Wagler are not directly on point.

[17] Furthermore, this court more recently held in Curts v. Miller’s Health Systems,

Inc., 972 N.E.2d 966 (Ind. Ct. App. 2012), the issue before the court was

whether a nursing home failed to meet its standard of care and whether injuries

from the decedent patient’s fall caused her death approximately twenty-four

hours later. After reviewing Long and Nasser, the Curts court wrote, “we cannot

foreclose the possibility that some nurses have sufficient expertise to qualify as

an expert witness.” Id. at 971. The Curts court continued:

[W]e are not prepared to declare a blanket rule that nurses cannot qualify
as expert witnesses under Indiana Evidence Rule 702 and testify as to
whether a healthcare provider breached a standard of care or whether an
alleged breach caused an injury. Indiana Evidence Rule 702(a)
provides “a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form

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 of an opinion or otherwise.” Just as the Rule states, we hold a
nurse could qualify as an expert regarding medical standards of care and
causation in some circumstances. The determinative question is
whether the nurse has sufficient expertise, as provided in Rule
702(a), with the factual circumstances giving rise to the claim and
the patient’s injuries.

Id. at 971 (emphases added).3

[18] A similar approach was adopted by our supreme court in Bennett v. Richmond,

960 N.E.2d 782 (Ind. 2012), which addressed whether a psychologist (as

opposed to a psychiatrist, who is also a medical doctor) could testify as an

expert on behalf of a plaintiff regarding the cause of the plaintiff’s brain injury.

The court held that “[n]either the criteria for qualifying under Rule 702

(knowledge, skill, experience, training, or education) nor the purpose for which

expert testimony is admitted (to assist the trier of fact) supports a per se rule

banning psychologists’ testimony in this manner.” Id. at 786. The court noted

that its approach differed from the per se exclusion rule of Long, Nasser, and

Wagler. Id. at 786 n.8.

[19] Pursuant to Curts and Bennett, we conclude no blanket rule prevents a nurse as

acting as an expert witness. Instead, the pertinent question in the present case is

whether Swartz has sufficient “knowledge, skill, experience, training, or

3
Nevertheless, the Curts court held that the plaintiff did not present sufficient evidence of the nurse’s
expertise to support a conclusion that she qualified as an expert concerning the defendant’s alleged breach of
care and whether this alleged breach caused the decedent’s death. Id.

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 education” and if his specialized knowledge would “help the trier of fact

understand the evidence or determine a fact in issue.” Evid. R. 702(a).

[20] In addressing this question, we note that Swartz is not only a registered nurse,

but a nurse practitioner. The Indiana Board of Nursing, under the authority

granted to it by Indiana code section 25-23-1-7.1, has defined a “nurse

practitioner” as

[A]n advanced practice nurse who provides advanced levels of
nursing client care in a specialty role, who meets the
requirements of an advanced practice nurse as outlined in section
3 of this rule, and who has completed any of the following:

(1) A graduate program offered by a college or university
accredited by the Commission on Recognition of Postsecondary
Accreditation which prepares the registered nurse to practice as a
nurse practitioner and meets the requirements of section 6 of this
rule.

(2) A certificate program offered by a college or university
accredited by the Commission on Recognition of Postsecondary
Accreditation which prepares the registered nurse to practice as a
nurse practitioner and meets the requirements of section 6 of this
rule. Nurse practitioners who complete a certificate program
must be certified and maintain certification as a nurse
practitioner by a national organization which requires a national
certifying examination.

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 (3) Prior to the promulgation of this article, the following:

(A) A formal organized program of study and clinical
experience which prepares the registered nurse to practice
as a nurse practitioner.

(B) The required program of study at a time when there
was no credentialing or certification process available in
the specialty area of the program of study.

848 Ind. Admin. Code 4-1-4(a).

[21] An “advanced practice nurse” such as a nurse practitioner must be

a registered nurse qualified to practice nursing in a specialty role
based upon the additional knowledge and skill gained through a
formal organized program of study and clinical experience, or the
equivalent as determined by the board, which does not limit but
extends or expands the function of the nurse which may be
initiated by the client or provider in settings that shall include
hospital outpatient clinics and health maintenance organizations.
...

I.C. § 25-23-1-1(b).

[22] Nurse practitioners “shall perform as an independent and interdependent

member of the health team.”4 848 Ind. Admin. Code § 4-2-1 (2013). This

regulation further provides:

4
“‘Health team’” means a group of health care providers which may, in addition to health care practitioners,
include the patient/client, family, and any significant others. 848 Ind. Admin. Code 2-1-3 (2013).

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 The following are standards for each nurse practitioner:

(1) Assess clients by using advanced knowledge and skills to:

(A) identify abnormal conditions;

(B) diagnose health problems;

(C) develop and implement nursing treatment plans;

(D) evaluate patient outcomes; and

(E) collaborate with or refer to a practitioner, as defined
in IC 25-23-1-19.4, in managing the plan of care.

(2) Use advanced knowledge and skills in teaching and guiding
clients and other health team members.

(3) Use appropriate critical thinking skills to make independent
decisions, commensurate with the autonomy, authority, and
responsibility of a nurse practitioner.

(4) Function within the legal boundaries of their advanced
practice area and shall have and utilize knowledge of the statutes
and rules governing their advanced practice area, including the
following:

(A) State and federal drug laws and regulations.

(B) State and federal confidentiality laws and
regulations.

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 (C) State and federal medical records access laws.

(5) Consult and collaborate with other members of the health
team as appropriate to provide reasonable client care, both acute
and ongoing.

(6) Recognize the limits of individual knowledge and
experience, and consult with or refer clients to other health care
providers as appropriate.

(7) Retain professional accountability for any delegated
intervention, and delegate interventions only as authorized by IC
25-23-1 and this title.

(8) Maintain current knowledge and skills in the nurse
practitioner area.

(9) Conduct an assessment of clients and families which may
include health history, family history, physical examination, and
evaluation of health risk factors.

(10) Assess normal and abnormal findings obtained from the history,
physical examination, and laboratory results.

(11) Evaluate clients and families regarding development,
coping ability, and emotional and social well-being.

(12) Plan, implement, and evaluate care.

(13) Develop individualized teaching plans with each client
based on health needs.

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 (14) Counsel individuals, families, and groups about health and
illness and promote attention to wellness.

(15) Participate in periodic or joint evaluations of service
rendered, including, but not limited to, the following:

(A) Chart reviews.

(B) Client evaluations.

(C) Outcome statistics.

(16) Conduct and apply research findings appropriate to the
area of practice.

(17) Participate, when appropriate, in the joint review of the
plan of care.

848 I.A.C. § 4-2-1 (emphases added). Moreover, a nurse practitioner may

prescribe legend drugs. Ind. Code § 25-23-1-7(a)(9)(B) (providing that Board of

Nursing shall establish, with the approval of the medical licensing board, the

requirements that an advanced practice nurse must meet to be granted authority

to prescribe legend drugs); 848 I.A.C. § 5-1-1 (setting forth the requirements an

advance practice nurse must meet to be authorized to prescribe legend drugs).

[23] From this, it is apparent that a nurse practitioner is a highly trained and

educated medical professional in a highly regulated field. Although a nurse

practitioner obviously does not possess the same level of training and education

as a licensed medical doctor, we do not believe this acts as a bar to the

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 admissibility of a nurse practitioner’s expert testimony. Instead, issues regarding

the comparative level of training and education would go only toward the

weight to be given to such evidence. See Bennett, 960 N.E.2d at 790 (noting that

questions regarding the adequacy of the psychologist’s education and training

or the propriety of his examination of the plaintiff’s injuries went to the weight

and credibility of the witness’s testimony, not its admissibility).

[24] Here, it is undisputed that Swartz meets the qualifications to be a nurse

practitioner. He has a bachelor’s degree in nursing and a master’s degree to be a

nurse practitioner. Swartz is licensed and board certified to practice as a nurse

practitioner in Indiana and Kentucky. As a nurse practitioner, Swartz examines

and treats patients, interprets lab results, and can prescribe certain medications

and refer patients to occupational or physical therapy. Swartz has seen more

than 100 patients who have been injured in automobile accidents.

[25] We therefore conclude that Swartz has sufficient knowledge, skill, experience,

training, or education to testify as an expert witness. However, Swartz may not

testify that Aillones’s injuries were caused by the accident,5 as Swartz was not a

witness to the accident. Importantly, this is not a medical malpractice case

regarding a medical provider’s conduct. Instead, it is a simple tort claim.

Accordingly, we hold that although Swartz may not testify that Aillones’s

injuries were proximately caused by the accident, he may testify whether, in his

5
Because the question is not directly before us, however, we express no opinion on whether a nurse
practitioner, might be able to testify in a medical malpractice case as to medical causation.

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 expert opinion, Aillones’s injuries were consistent with injuries from an

automobile accident. Although this may seem a fine line to draw, it is up to

Aillones’s counsel to persuade the jury that the injuries that Swartz testified are

consistent with an accident were actually caused by the accident.

Conclusion

[26] For these reasons, we reverse the order of the trial court which concluded that

nurse Swartz could not testify as an expert witness, and we remand for

proceedings consistent with this opinion.

[27] Reversed and remanded.

Kirsch, J., and Altice, J., concur.

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