United States District Court, D. Kansas
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,
Pinnacle Health Facilities XXXII., LP, Defendant.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
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”
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.
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.
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.
claims that the surgery was successful, but the effects were
reversed after Funk suffered the second separate fall.
prior order, the court dismissed plaintiffs' survival
claims against Clearwater. Only the wrongful death claim
against the nursing home remains.
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.
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
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
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).
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. 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.
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.
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