Nurse CQE: Robinson v. Canton

On April 24, 2024, the Appellate Court of Maryland issued a reported opinion in a Maryland medical malpractice case. Robinson v. Canton Harbor Healthcare Center, Inc. No. 2169 (2024). The Court resolved a question of first impression in Maryland by specifically holding that a registered nurse can opine on the causation of injury in a Certificate of Qualified Expert (CQE) for a decubitus ulcer case. CJP 3-2A-04. (Op. at 1).

Circuit Court Facts

The plaintiff brought suit in the Circuit Court for Baltimore City on behalf of her husband’s estate against a skilled nursing facility. Her husband was an inpatient at the facility for five months following a stroke. The plaintiff alleged negligent failure to prevent and treat decubitus ulcers, called bed sores. (Id.). As a result, her husband became septic and died. (Id. at 3). The plaintiff and her three children brought wrongful death claims, but they subsequently abandoned them. (Id.).

CJP § 3-2A-04 provides the CQE requirement:

(b) Unless the sole issue in the claim is lack of informed consent:

(1)(i)1. Except as provided in item (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint.

The plaintiff submitted a CQE from a registered nurse (Id. at 3-4). The Appellate Court’s opinion describes in detail the nurse’s experience performing skin checks and diagnosing and treating skin ulcers. The Court also reviewed the nurse’s 19-page report (Id. at 4-12).

Defense Motion to Dismiss Nurse CQE

The defense then filed a motion to dismiss the case on the basis that a registered nurse cannot provide expert testimony on proximate causation. (Id. at 12). 

Although there are no reported Maryland decisions on point, the defense relied on the statutory definition differences between nursing and medical diagnoses. (Id.). According to the defense, nurses could not provide causation because it requires more than describing the health problem. (Id. at 13-14). The defense added that the nurse could not decide on the cause of death because it would require an assessment of pre-existing conditions and comorbidities. (Id. at 16).

The circuit court concluded that under the Maryland Health Occupations 14-101/(o) and 8-101(o) and COMAR 10.27.09.01B(16), a registered nurse cannot make a medical diagnosis and therefore cannot determine a medical condition nor the cause of a condition. Thus, the nurse cannot attest to proximate causation under the CQE. (Id. at 17-18).

Appellate Court

Nurses Do More Than Describe Conditions

 Firstly, the Appellate Court of Maryland considered various definitions in the health care statutory scheme:

• Nursing home” Md. Code Health Gen’l  § 19-1401(e)(1): emphasis on nursing care and nurses supervising
• “Practice registered nursing” HO § 8-101(o): emphasis on nursing assessment, treatment, and nurses as supervisors and administrators
• Additionally, functions of registered nurses are in COMAR 10.27.09.02: describing nurse’s role in assessment, plan, and treatment

The Appellate Court especially found the above statutes refuted the defense’s claim that nurses are limited to a diagnosis that merely describes the problem. (Id. at 24). The Court wrote: “Performance of these functions, which focus on identifying and attaining expected outcomes, implicitly requires registered nurses, acting within the scope of their duties, to assess the probable cause of further injury if nursing intervention is unsuccessful.” (Id. at 25) (Court’s emphasis).

Secondly, the Court turned specifically to decubitus ulcers:

• Pressure ulcers are among the health problems that registered nurses are licensed to treat. COMAR 10.27.09.01(B)(16)
• Further, preventing and caring for pressure ulcers fall within the scope of “nursing diagnosis” and “nursing services” that may properly be “rendered by or under the supervision of a licensed nurse.” HG § 19-1401(e)(1). 
• Federal regulations:  “Services that qualify as skilled nursing services”  include “treatment of extensive decubitus ulcers or other widespread skin disorder.” 42 C.F.R. § 409.33(b)(6).
• Maryland statute mandating quality assurance programs in nursing homes lists “prevention of decubitus ulcers” as “nursing care.” HG 19-1410(b)(5)(ii).
• Maryland nursing home regulations: “Nursing Services” to “ensure that a resident receives proper care to prevent pressure ulcers.” COMAR 10.07.02.18C(3)(c). “Physician Services” makes no mention of pressure ulcers, COMAR 10.07.02.14, suggesting that prevention of pressure ulcers in nursing homes is primarily a nursing function not requiring the expertise of a physician.

Narrow Holding on Nurse CQE

The Appellate Court then wrote:

The scope of our holding is narrow. We hold only that in negligence cases alleging breach of nursing standards for preventing and treating decubitus ulcers, a registered nurse is not disqualified per se to attest that failure to adhere to such standards proximately caused the plaintiff’s ulcer injury. (Id. at 27).

And

As we explain, our holding is narrow. Although we conclude that the registered nurse in this case may certify that a breach in the standard of care caused ulcer injury to Mr. Robinson, we express no opinion concerning a nurse’s qualifications to attest to the causation of other injuries, including death. (Id. at 2 fn 2).

Commentary By The Baltimore Medical Malpractice Lawyer

Opinion & Scope of Nurse CQE

The Appellate Court’s analysis shows that nurses have primary training and responsibility for the prevention, assessment, and treatment of decubitus ulcers. In this way, nurses are arguably even more qualified and experienced than doctors to opine on the standard of care and causation in a CQE. As a result, the Court’s holding is well supported.

This opinion will be helpful in cases where pressure sores do not cause death. In that instance, a medical malpractice plaintiff can bring the case with one nurse as an expert on both standards of care and causation, assuming nursing care is at issue. By expanding the pool of potential experts on causation to nurses, Robinson will be helpful to medical malpractice victims when hiring experts.

Maryland medical malpractice lawyers may be able to use the Robinson opinion to expand nurse causation testimony into areas beyond bed sore cases. If a medical area can be plugged into the Appellate Court’s analysis and result in the same responsibilities for nurses, then it will be a candidate. Any area where nurses have the primary responsibility for prevention, assessment and treatment will be a possibility.

However, Robinson does not provide much change in wrongful death cases. Many decubitus ulcers become infected. The infection can lead to sepsis and then cause death. The Court specifically stated that they did not reach a determination as to a nurse opining on the cause of death. In wrongful death cases, it will be wise to obtain physician expert testimony on the cause of death.

Other Maryland Expert Cases

Expert requirements and CQE issues are some of the more frequent topics for Maryland appellate opinions in medical malpractice cases. You can read more on these issues in the following blog posts on expert testimony:

• Sufficiency of Causation Testimony: Dackman v. Fisher
• Teaching experience provision in CQE: Jordan v. Elyassi’s
• “Related Specialty”: Street v. UPMC 1
• Exclusion for Late Designation: Hemstreet v. Caldwell
• Finally, Daubert Exclusion of experts for changing testimony: Asokere v. Waldrop

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.