The nurse is a patient advocate

A New Jersey plaintiff attorney lost a $19 million verdict when a state appeals court found multiple trial errors. Med League supplied one of the expert witnesses for this case.

The case involved an alleged delay in ordering a cesarean section, which caused cerebral palsy in the child. In Kowalski v. Palav, A-5348-07, the nurse on duty when Bonnie Kowalski went through labor, testified she repeatedly told Dr. Aravid Palav, the obstetrician, that she was concerned about the dropping fetal heart rate.

She believed the patient needed a cesarean section without delay. But the physician believed the patient was likely suffering from appendicitis as the cause of severe stomach pain, and the fetus was not in jeopardy.

Nurse Zeh testified about her concerns about the condition of the fetus. She said it was often unclear whether she was reading the baby’s heart rate or that of the mother, who was writhing in pain.

When the physician objected that the potential prejudicial effect of that evidence outweighed its probative value, the judge determined the nurse’s testimony was relevant – only the nurse’s decision to go up the chain of command to press for immediate delivery, not to the physician’s alleged deviations from the standard of care.

The jury found the physician deviated from the proper standard of care, caused harm to the child, and awarded $18.9 million.

The Appellate Division judges held that the nurse’s testimony should have been excluded because it suggested that Palav deviated from the standard of care because he failed to perform a cesarean section in the face of her insistence that the baby’s condition was deteriorating.

The judges held the nurse was not qualified to present testimony that could be inferred as an expert opinion.

Read more at www.njlj.com, August 30, 2010.

This case illustrates the fine line nurses walk when they advocate for their patients. The nurse is held to a professional standard of performance. Nurses are expected to recognize when a physician’s behavior is jeopardizing a patient. Nurses are obligated to question the physician, and if not satisfied with the response, to go up the chain of command to obtain resolution of the concerns.

Had Nurse Zeh not gone up the chain of command, she could have been criticized as being negligent for failing to protect her patient.

The irony, in this case, is that Nurse Zeh’s explanation of her decision to speak to her charge nurse and nursing supervisor about Dr. Zeh showed she carried out her obligation to use the chain of command, but also implied a criticism of Dr. Palav’s decisions. This is exactly the hot spot that places nurses in the uneasy role of tackling the decision making of physicians.

They must take on even the most intimidating of physicians, even at the risk of becoming objects of the physician’s anger. See “How Harshness Harms Patients”. But if they testify, as did Nurse Zeh did, about their interventions, they can be seen as offering an expert opinion on the standard of care for an obstetrician. What a fine line!

Med League provides medical expert witnesses to trial lawyers. Please call us at (908)788-8227 or contact us today to discuss your next case.