In long term care cases, it is common for a plaintiff to obtain testimony from treating and expert physicians that certain acts or omissions by the nursing home or ALF was in violation of resident rights (Chapters 400 or 429). Conversely, it is likewise common for defendant facilities to obtain similar testimony that there were no shortcomings in their care since involved health care practitioners are required by law to report suspected abuse or neglect and the absence of such reporting speaks for itself.
The case of Estate of Caulie Jackson Murray, Sr. v. Delta Health Group, Inc. and P. Carolyn Antone involves the question of what statements an expert can make before a jury (for the purposes of this review, consider “treating physicians” as experts). The Second District Panel (Morris, Northcutt, and Villanti) held that the defendant could not introduce testimony by a treating physician that the facility was “not negligent” because that specific testimony applies a legal standard.
The Panel likewise appears to indicate that a treating physician’s (or anyone’s) testimony about whether something “violated a resident’s rights” may also be excluded as invading the province of the jury.
Instead, the court suggests that treating physicians should be listed/disclosed as “experts” when they are offering opinions based upon their training and experience AND that the magic words involve whether the physician feels there was a “violation of the standard of care.” As the court pointed out, “the distinction is to some degree a matter of semantics but that it is a necessary distinction nonetheless.”
