Medical malpractice; Nursing negligence; Exclusion of a standard of care (SOC) expert’s testimony; MRE 702; MCL 600.2955; Medical literature; Facts in evidence; MRE 703; American Nurses Association (ANA)

The court held that the trial court did not abuse its discretion in excluding the testimony of plaintiff’s SOC expert (Dr. R) because the testimony “was unreliable and not based on facts in evidence.” Thus, in this interlocutory appeal it affirmed the trial court’s order excluding the testimony and dismissing plaintiff’s claim for nursing negligence against defendant-hospital (Hurley). This medical malpractice case arose “from a series of surgeries and hospital visits that plaintiff underwent in” 3/16. She first argued on appeal that the trial court abused its discretion in striking R’s SOC testimony about plaintiff’s discharge on 3/17/16, “because her opinion was adequately supported by medical literature.” But the court agreed with the trial court’s conclusion that R’s “expert opinion was ‘too general and too unconnected to accept.’” It found that R’s “cited literature does not explicitly discuss or illuminate a standard of care as it relates to discharging patients.” In support of her opinion, R relied on the ANA Code of Ethics and two peer-reviewed articles. “These authorities do not provide a workable standard of care as it relates to whether the Hurley nurses breached their duty by allowing plaintiff’s discharge. At most, they provide a general discussion about the importance of patient advocacy. The trial court did not abuse its discretion by recognizing that the general propositions on which [R] relied—that nurses should advocate for their patients and provide optimal care—presented too general a standard to be helpful to a jury in assessing whether plaintiff was negligently discharged.” The court also found that the reliability of R’s opinion was “undermined by the fact that nurses are not ultimately responsible for the discharge of a patient. While [R] testified that nurses may influence whether a patient is discharged, she also acknowledged that a physician or mid-level provider is ultimately responsible for issuing a discharge order.” Plaintiff also contended that R’s testimony about plaintiff’s treatment in the ER on 3/19/16 was supported by facts in evidence. But the court agreed with the trial court that the opinion did “not accord with the established facts and was properly excluded under MRE 703.”