McCormick v. Avret

Shulman, Judge,

concurring specially.

I agree with the majority that, under the facts of this case, plaintiffs witness, a licensed nurse, should have been permitted to *180testify as an expert witness for purposes of establishing the requisite standard of care for sterilizing hypodermic needles. Since in this particular instance the witness properly established her expertise in regard to the care of and procedure for keeping hypodermic needles and inasmuch as this procedure does not require the special expertise and training of a physician, but is a procedure for which a licensed nurse is eminently qualified, the trial court erred in not permitting the witness to testify as an expert.

I do not wish to imply by this special concurrence, however, that in all instances where a paraprofessional and a professional perform the same function, e.g., withdrawing blood by use of a hypodermic needle, the paraprofessional can testify as an expert to the standard of care for the performance of that entire function. But, as to those elements of the performance of such functions for which the training of the professional is not required, a paraprofessional should be able to testify to the requisite standard of care for that particular phase of the function, but only in such extremely limited circumstances.

Where, as here, the physician’s medical degree did not render him any more qualified or competent to prepare the hypodermic needle (as opposed to the actual withdrawal of blood) than a licensed nurse, the majority properly concluded that plaintiffs witness should have been afforded expert witness status to testify as to the degree of care necessary for proper use and handling of hypodermic needles.

I am authorized to state that Chief Judge Been joins in this special concurrence.