Rules of evidence shouldn’t treat Advanced Practice Nurses like second-class providers
In North Carolina, the category of Advanced Practice Registered Nurses (APRNs) includes Certified Registered Nurse Anesthetists, Certified Nurse Midwives, Clinical Nurse Specialists, and Nurse Practitioners. APRNs already play an important role in North Carolina’s health care system, and, if the N.C. General Assembly grants them a level of independence commensurate with their training and expertise, they can play an even larger role in the future. Granting APRNs the authority to practice without a supervising physician would encourage them to set up independent practices in underserved regions, which, in turn, would go a long way towards solving the primary-care shortage affecting millions of North Carolinians.
While achieving those benefits is highly desirable, the outcome of a case currently before the N.C. Supreme Court may determine the extent to which they are fully realized. In Gray v. East Carolina Medical Services, a nurse practitioner named Donna McLean is appealing the N.C. Court of Appeals’ interpretation of how the N.C. Rules of Evidence apply to APRNs in medical malpractice claims.
According to the Court of Appeals, the rules that provide health care providers with robust protections against ill-informed, unfair, or hostile expert testimony don’t apply when a physician provides testimony against an APRN. The John Locke Foundation recently filed a “friend of the court” brief in the case — not because we have a position regarding Ms. McLean’s guilt or innocence — but because we want the Supreme Court to know that an interpretation of the rules that fails to adequately protect APRNs could discourage them from forming the kind of independent practices that are so badly needed in North Carolina.
Granting full practice authority to APRNs will benefit millions of North Carolinians by making health care less expensive and more accessible.
North Carolina suffers from a primary care shortage. Last year, the North Carolina Office of Rural Health identified 93 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.
APRNs can help North Carolina meet the need for additional primary care practitioners. A 2018 report, issued jointly by the United States Departments of Health and Human Services, the United States Department of the Treasury, and the United States Department of Labor, noted that APRNs “can safely and effectively provide some of the same healthcare services as physicians.” Nurse practitioners, for example, possess “graduate-level clinical knowledge and training to provide patient care directly. They assess patients’ medical history, diagnose ailments, order lab work, and prescribe medications.” What’s more, not only can APRNs provide many of the same services provided by physicians, and at lower cost — policy experts have long recognized that APRNs can provide those services at the same level of quality as physicians.
For all those reasons, a diverse coalition of legislators and organizations, including the John Locke Foundation, advocates addressing the need for more primary care providers by expanding the role of our state’s growing population of APRNs. In recent years, the General Assembly has considered legislation to ease outdated restrictions on APRNs’ practices and grant them “full practice authority,” i.e., the authority to practice without a supervising physician within their area of expertise. Last session, the General Assembly came close to approving such a measure, and a similar measure will probably be taken up during the current session.
Twenty-four states and Washington, D.C. have already granted full practice authority to at least some APRNs. Given the importance of maintaining a modern and efficient health care system, North Carolina will probably soon follow their example. However, even if that happens, the outcome of Gray v. ECMS could determine the extent to which the benefits described above are fully realized.
How the N.C. Rules of Evidence deal with expert testimony in medical malpractice cases
Rule 702 of the N.C. Rules of Evidence concerns “Testimony by Experts.” Taken as a whole, it is clear that an important purpose of the rule is to ensure that expert witnesses in medical malpractice lawsuits have the knowledge and experience they need to provide fair and accurate testimony about the applicable standard of care in such cases. Subsections 702(b) and (c) are very clear on this point.
702(b), for example, lists the criteria that must be met by an expert giving testimony about the standard of care applicable to a specialist provider:
If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must … [s]pecialize in the same specialty as the party against whom or on whose behalf the testimony is offered or … [s]pecialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients. …
During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to … [t]he active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients. [Emphasis added.]
702(c) adds a requirement that must be met by an expert giving testimony about the standard of care applicable to a general practitioner:
Notwithstanding subsection (b) of this section, if the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the action, must have devoted a majority of his or her professional time to … [a]ctive clinical practice as a general practitioner … or [i]nstruction of students in an accredited health professional school or accredited residency or clinical research program in the general practice of medicine. [Emphasis added.]
Unfortunately, 702(d) is much less clear that 702(b) and (c):
Notwithstanding subsection (b) of this section, a physician who … by reason of active clinical practice or instruction of students has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony … with respect to the standard of care of which he is knowledgeable of nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, … or other medical support staff. [Emphasis added.]
Under a narrow interpretation, the highlighted opening phrase would simply mean that an otherwise-qualified physician could provide testimony in a case involving an APRN despite being a member of a different “health profession.” A loose interpretation, on the other hand, would apply the phrase to the entirety of 702(b), which would mean any physician could testify against any APRN, even if the former is a specialist and the latter is a general practitioner.
Of course, it is clear that the opening phrase of 702(d) applies only to 702(b) and not to 702(c). Moreover, on its face the text of 702(c) would appear to preclude any specialist from testifying against any general practitioner regardless of whether the former is a physician and the latter is an APRN. However, in an opinion handed down in 2000, the N.C. Court of Appeals reached a bizarre conclusion:
[W]e interpret [Rule 702] to apply as follows: health care providers other than physicians are governed exclusively by section (b). Section (c) applies only to physicians who are “general practitioners,” while section (b) applies only to physicians who are “specialists.”
In reaching this conclusion the court relied on what it called the “cardinal principle” of statutory construction, which, it claimed, is to “ensure accomplishment of the legislative intent.” Such an interpretation, which substitutes the court’s opinion about what the legislature “really” intended for the clear meaning of the statute itself, would be extremely unlikely today thanks to the rise of textualism as an interpretive method. Unfortunately, attempts at divining and applying legislative intent were all too common in the past.
The ambiguity of the text of 702(d) and the Court of Appeals’ strange interpretation of 702(c) may not have mattered very much in 1995, when the former was adopted, or in 2000, when the latter was handed down. Back then nurses were still very much under the thumb of the physicians who supervised them.
Those things matter a great deal now, however, which is why the Court of Appeals’ finding in Gray v. ECMS is so unfortunate. Ms. McLean had argued that the plaintiff’s expert witness, a specialist physician without extensive experience dealing with general practice APRNs, should not be allowed to testify against her. The trial court agreed. It found that the plaintiff’s witness was unqualified because he
did not supervise the primary care of patients provided by FNPs, RNs, and/LPNs during the applicable time period …
did not know the qualifications of the nurse practitioner he supervised in his private practice of pulmonology …
admitted that there are different types of nurse practitioners and that the training of nurse practitioners varies by type …
did not practice family medicine or supervise a nurse practitioner in the practice of family medicine … [and]
has never supervised the primary care of patients provided by FNPs, RNs, and/LPNs in a [similar] setting … during the applicable time period.
Despite those findings of fact, the Court of Appeals reversed. It held that Rule 702 does not forbid a specialist physician like the plaintiff’s expert witness from testifying against an APRN in general practice like Donna McLean.
The N.C. Supreme Court interpretation of Rule 702 will influence the extent to which APRNs are willing and able to address the primary care shortage in North Carolina.
As noted above, a loose interpretation of 702(d), like the one the Court of Appeals applied in Gray v. ECMS, would allow any physician to provide expert testimony against any APRN, even if the former is a specialists and the latter is a general practitioner. Such an interpretation would be inconsistent with the letter and the spirit of Rule 702 as a whole. It would also undervalue the training and specialization of APRNs, and it would fail to reflect the independent role that APRNs can play in a modern health care system.
A loose 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 the Supreme Court reads 702(d) to permit physicians to qualify as experts with only minimal professional contact with APRNs, it would effectively permit backdoor resistance to legislative reforms.
From Locke’s perspective, however, the worst consequence of a loose interpretation of 702(d) is that, by failing to adequately protect them against ill-informed, unfair, and hostile testimony, such an interpretation would discourage APRNs from forming and operating independent practices in underserved regions of North Carolina.
On the other hand, a narrow interpretation of 702(d) would limit its application to 702(b)’s specific requirement that experts must practice the same profession as those about whom they testify and allow the subsection’s other congruity requirements to apply. Such an interpretation would be consistent with the letter and the spirit of Rule 702 as a whole and reflect the expanded role that APRNs can and should play in a modern health care system.
A narrow application of the text of Rule 702(d) would also make adjudication involving APRNs fairer by discouraging backdoor resistance from hostile physicians with little or no experience working with APRNs. Physicians who work directly with APRNs are far more likely to understand — and respect — the latter’s capabilities. Due to regulatory restrictions on APRNs’ practices, physician-APRN collaboration typically happens only within the same category of practice, either because the physician supervises the APRN or works alongside the APRN to provide treatment. A physician without such experience is unlikely to know enough about typical practices among APRNs to provide reliable expert testimony.
Most important of all, by clarifying the rules and providing APRNs with adequate protections against ill-informed, unfair, and hostile testimony, a narrow interpretation of Rule 702(d) would inspire confidence in the legal system among APRNs and encourage them to open and operate independent practices in underserved regions of North Carolina.
Exposure to ill-informed, unfair, or hostile expert testimony in medical malpractice claims could undermine efforts to expand primary care access for millions of rural North Carolinians. By establishing clear and reasonable standards for the qualification of experts pursuant to Rule 702 — and by interpreting the rule in a way that affords APRN defendants protections that are roughly comparable to those afforded to physicians — the N.C. Supreme Court can ensure that APRNs are ready and willing to solve the primary care shortage in North Carolina.