Locke brief urges NC Supreme Court to avoid stifling state’s health care access

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  • A new legal brief from the John Locke Foundation urges the N.C. Supreme Court to avoid a decision that could harm health care access in North Carolina.
  • In Gray v. Eastern Carolina Medical Services, the court could set rules related to expert testimony in medical malpractice cases involving advanced-practice nurses.

The N.C. Supreme Court’s decision in a pending medical malpractice case could help or hinder efforts to boost health care access in North Carolina. The John Locke Foundation makes that argument in a new friend-of-the-court brief filed Wednesday.

The case, Gray v. Eastern Carolina Medical Services, focuses on whether Rule 702(d) of the N.C. Rules of Evidence “permits specialist physicians to offer testimony on the standard of care applicable to non-physicians providing primary care,” according to Locke’s brief.

The implications extend far beyond legal technicalities, argued Jon Guze, Locke’s senior fellow in legal studies.

“Locke’s interest in this case stems specifically from its support for legislation that would grant full practice authority — i.e., the right to open an operate a practice without a supervising physician — to Advanced Practice Registered Nurses (“APRNs”), a category that includes Certified Registered Nurse Anesthetists (“CPRNs”), Certified Nurse Midwives (“CNMs”), Clinical Nurse Specialists (“CNSs”), and Nurse Practitioners (“NPs”) like Donna McLean.”

McLean is a defendant in the Gray case.

“Such legislation would allow ARPNs to treat patients to the full extent of their clinical training and without physician oversight, and that, in turn, would go a long way towards solving the primary care shortage affecting millions of North Carolinians,” Guze wrote.

“This Court’s interpretation of Rule 702(d) of the North Carolina Rules of Evidence may determine whether those benefits are realized,” he added. “A loose reading of Rule 702(d) that fails to protect APRNs from ill-informed, unfair, or hostile testimony in medical malpractice cases would discourage them from forming independent practices in underserved communities.”

“On the other hand, a narrow interpretation that affords APRNs protections that are comparable to those afforded to physicians will benefit all North Carolinians — and especially rural North Carolinians — by encouraging the formation of independent practices and thereby making medical services less expensive and more accessible.”

The case started in 2019 as a medical malpractice complaint. Defendants have argued that plaintiff Melva Lois Banks Gray failed to follow the state’s legal rules in lining up a medical expert to testify in support of her case.

A trial court agreed and dismissed the lawsuit in July 2020. The N.C. Court of Appeals reversed that ruling in August 2022. The state Supreme Court agreed to take the case in December.

Guze explained how the court’s ultimate ruling could affect health care access statewide. “North Carolina suffers from a primary care shortage,” he wrote. “Last year, the North Carolina Office of Rural Health identified ninety-three counties in our state with a shortage of primary care providers. … One-fifth of North Carolinians — more than 2 million people — currently
lack meaningful access to primary care.”  

Advanced-practice nurses could help address the problem, Guze argued. “APRNs can and do provide many of the same services provided by physicians, and at lower cost,” he wrote. “Moreover, policy experts have long recognized that APRNs can provide services at the same level of quality as physicians.”

State legislators have considered relaxing restrictions on these advanced-practice nurses. The General Assembly could take steps to remove “obstacles” this year, Guze explained. “[G]iven the national trend regarding APRN independence, and the importance of maintaining a modern and efficient health care system in North Carolina — it will almost certainly do so eventually. Unfortunately, the outcome of this case could erect a new obstacle of its own.”

The Gray case gives the Supreme Court a chance to clarify rules about expert witnesses, Guze argued.

“Taken as a whole, it is clear that an important purpose of Rule 702 is to ensure congruity between expert witnesses and health care providers in malpractice lawsuits,” he wrote. “Rules 702(b) and Rule 702(c) are very clear on that point. Unfortunately, Rule 702(d) is ambiguous and could be interpreted in a way that would allow a specialist physician [to testify] against an APRN in general practice.”

“When the current language was adopted in 1995 and nurses were very much under the thumb of the physicians who supervised them, that may not have mattered much,” Guze added. “[I]t matters much more now. The role of nurses in the health care system has expanded considerably over the past three decades, and it will expand still further in the years to come. It is important, therefore, for the Court to remove the ambiguity and do so in a way that is consistent with the current facts on the ground.”

A ”loose” interpretation of Rule 702(d) would be “inappropriate and deleterious,” Guze wrote. “It would undervalue the training and specialization of APRNs and fail to reflect the independent role they play in a modern health care system,” he explained. “Such an interpretation would also be unfair to APRNs in both judicial and legislative proceedings. The greatest resistance to full-practice-authority legislation has come from physicians.”

“If this Court reads Rule 702(d) to permit physicians to qualify as experts with only minimal professional contact with APRNs, Rule 702(d) would effectively permit backdoor resistance to legislative reforms,” Guze predicted.

Even worse, “by failing to afford them protection against ill-informed, unfair, and hostile testimony that is comparable to the protection afforded to physicians, such an interpretation would discourage APRNs forming and operatin independent practices and prevent North Carolina from enjoying the full benefits of APRN independence,” Guze added.

Guze urged the state’s highest court to support a “narrow” interpretation “that experts and those against whom they testify must practice the same profession.”

“Such an interpretation would be consistent with the letter and the spirit of Rule 702 as a whole,” he wrote. “It would also reflect the expanded role that — thanks to their levels
of training and specialization — APRNs can and should play in a modern health care system.”

The court’s decision in the Gray case could have widespread implications, in Guze’s view.

“Exposure to ill-informed, unfair, or hostile expert testimony in medical malpractice claims can undermine efforts to expand primary care access to millions of rural North Carolinians,” he wrote. “Rule 702 should, by its plain language, prevent such testimony.”

“By establishing clear and reasonable standards for the qualification of experts pursuant to Rule 702 — and by interpreting Rule 702(d) in a way that affords APRN defendants protections that are generally comparable to those afforded to physicians — this Court can ensure that APRNs are ready and willing to solve the primary care shortage in North Carolina.”

The state Supreme Court has not yet scheduled oral arguments in Gray v. Eastern Carolina Medical Services.