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Funk v. Pinnacle Health Facilities XXXII., LP

United States District Court, D. Kansas

November 19, 2018

Mark Funk, as Administrator of the Estate of Dorothy Funk, deceased; Mark Funk, as heir at law of his mother, Dorothy Funk; and Alan Funk, as heir at law of his mother, Dorothy Funk, Plaintiffs,
v.
Pinnacle Health Facilities XXXII., LP, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         This is a wrongful death action, alleging that the decedent died as the result of a nursing home fall. Defendant operator of the home has moved for summary judgment, contending that the plaintiffs' failure to designate any medical expert to testify to causation is fatal to their claims for negligence. The motion raises two issues. Can plaintiffs establish causation through the testimony of two nurses? And can they do so by relying on the coroner's death certificate? The court answers these questions, respectively, “no” and “yes.”

         Findings of Fact

         Clearwater is a skilled nursing and rehabilitation facility. From September 29 to December 1, 2014, Funk resided at Clearwater, except for four days in October when she was at Via Christi St. Francis Hospital. Prior to her death, Funk had multiple health issues, including muscle weakness, edema, depression, atrial fibrillation, hypertension, congestive heart failure, history of seizures, TIAs, coronary artery disease, and chronic kidney disease.

         The plaintiffs assert that the 85-year-old Funk fell from her wheelchair and broke her hip on December 1, 2014. She was treated at Via Christi, where on December 2, 2018 Drs. Bradley Dart operated on Funk performing an open reduction of the fracture of her femur with internal fixation.

         Funk was discharged and transferred to Life Care Center of Andover. Two weeks later, on December 15, Funk again fell, this time apparently from her bed, and was found on the floor at Life Care Center. Funk died January 7, 2015.

         Pinnacle claims that the surgery was successful, but the effects were reversed after Funk suffered the second separate fall.

         By prior order, the court dismissed plaintiffs' survival claims against Clearwater. Only the wrongful death claim against the nursing home remains.

         Plaintiffs have identified two experts, Betty Pankratz (a Registered Nurse), and Judy Diggs (a Licensed Practical Nurse). Pankratz has a bachelor's degree in education and nursing. Diggs earned her nursing degree through a one-year vocational-technical program, and has worked for some 28 years in providing care to the elderly.

         The Amended Certificate of Death completed by Sedgwick County Deputy Medical Examiner Scott Kipper identifies the cause of death as “complications of a left hip fracture” due to a December 1, 2014 fall at the Clearwater nursing home.

         Conclusions of Law

         Pinnacle argues that plaintiffs have failed to present acceptable medical testimony of causation because Nurses Pankratz and Diggs are simply not qualified to give evidence as to Dorothy Funk's cause of death. In support of its argument, Pinnacle cites numerous cases determining that nurses were not qualified to give expert opinions as to medical causation. See Cunningham v. Riverside, 33 Kan.App.2d 1, 99 P.3d 133 (2004) (patient alleging nursing assistant caused leg fracture was required to present “expert evidence to show that her injury was caused by Profit's conduct, ” especially given evidence of pre-existing osteoporosis); Giddens v. Via Christi Reg'l Med. Ctr., Inc., 338 P.3d 23 (Kan.Ct.App. 2014) (”[a]s a general rule, only expert medical testimony is competent to prove causation in medical malpractice case”)

         The Funks argue that the nurses are qualified to testify as to the cause of death, citing Frausto v. Yakima HMA, 188 Wash.2d 227, 393 P.3d 776 (2017) as recognizing a “majority rule … permit[ting] nurses to express opinions as to medical causation in malpractice actions.” (Dkt. 105, at 25). They argue that the testimony of Pankratz and Diggs is admissible under Fed.R.Evid. 702, citing U.S. Surgical v. Orris, Inc., 983 F.Supp. 963 (D. Kan. 1997) and Wooten v. United States, 574 F.Supp. 200 (W.D. Tenn. 1982), and cite Kansas decisions such as Mellies v. National Heritage, Inc., 6 Kan.App.2d 910, 636 P.2d 215 (1981) as also “permit[ting] nurses to render opinions on causation.” (Dkt. 105, at 28).

         The court finds plaintiffs' authorities unpersuasive. Fausto does indeed point to a very slight majority among state court decisions-when the question is whether nurses are absolutely and categorically barred from ever addressing the issue of causation.[1] But the case does not support the conclusion that registered nurses or licensed nurse practioners may testify as to medical causation in general, let alone, as here, give an opinion as to the cause of death in cases with a complicated etiology.[2]

         Notably, despite an apparently exhaustive exploration of state decisions permitting nurses to testify as expert witnesses (Dkt. 105, at 20-30), the Funks have cited no authority allowing a nurse to testify as to the cause of death. Rather, the cited decisions have simply allowed nurses to testify as to other issues. Overwhelmingly, as indeed in Mellies, the decisions have centered on the ability of nurses to testify as to bedsores.[3]

         To a certain extent, the plaintiffs' argument confuses the ability of a nurse to testify as to a standard of care and as to causation. Thus, citing Mellies, Plaintiffs argue that, “Like bedsores, the testimony of the nurses should be permitted because falls in nursing homes are ‘primarily a nursing problem,' and the duty for the prevent care, and treatment of falls primarily rests with nursing home, not physicians.” (Dkt. 105, at 28). But while preventing falls in nursing homes is a nursing problem, Pinnacle's motion raises the issue not whether it may have violated the standard of care, but the separate issue of whether the fall caused Dorothy Funk's death. In the ...


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