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Broehm v. Rochester1/20/2005
ining and experience such that a nurse should not be presumptively disqualified from giving an expert opinion. See Cornfeldt, 262 N.W.2d at 697 (holding that it was erroneous to exclude the expert testimony of a nurse in a malpractice action against doctors solely because the nurse did not have the similar credentials and education as the doctors). Nevertheless, Broehm's abbreviated disclosure of Wick's nursing experience does not demonstrate that Wick has sufficient practical experience to make her competent to give an expert opinion on an asserted duty to immediately seek specialty care. Cf. id. at 693, 697. Therefore, I would also conclude that the district court did not abuse its discretion when it found Wick not qualified to give an expert opinion to support a claim based on a duty to seek specialty care.
E. Duty to Inspect--Nursing Standard of Care
I next consider the duty to inspect for skin integrity. Given that patients recovering from surgery are entrusted to the care of nurses who have the responsibilities of attending to the immediate needs of patients and of monitoring their recovery, the duty to inspect for skin integrity would arise from a nursing standard of care.
At this point, I must note my concern about the district court's reasoning with respect to the duty to inspect for skin integrity. The court stated that it would have been against Dr. Pairolero's instructions for nurses to disturb the restraint. The court then asserted that the head restraint was "not a dressing or bandage" which would have made a nursing standard of care applicable, but rather a "device designed to prevent possible death." The court concluded that Wick, as a nurse practitioner, was not qualified "to recommend post-operative care for this type of surgery." In reaching this conclusion, the court disregarded Wick's opinion that the restraint "had the essential characteristics of a 'dressing,' so as to require adherence to the skin integrity and dressing inspection protocols."
Again, the district court's reasoning appears to flow from Mayo's theory of the case. By using this approach, the court erred in how it evaluated Wick's qualification to give an expert opinion on a duty to inspect for skin integrity. More particularly, this error resulted in the court's adopting Mayo's theory that this case is strictly one of thoracic surgeon malpractice as opposed to Broehm's nursing malpractice theory. The burden on Broehm was simply to make out a prima facie case of medical malpractice. In particular, Broehm had the burden to produce an expert whose opinion supported her claim. See Sorenson, 457 N.W.2d at 191 (stating the purpose of section 145.682's dismissal provision was to deal with cases "completely unsupported by expert testimony.").
The essence of a prima facie showing is that the plaintiff has presented facts and opinions that, if uncontested, would allow a decision in her favor. Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000). In Tousignant, we concluded that it was inappropriate for a court to focus on the defendant's rebuttal argument rather than on whether the plaintiff had established a prima facie case of medical malpractice. Id. at 60. Here, the court's adoption of Mayo's theory amounted to a consideration and weighing of the defendant's rebuttal argument. Doing so is contrary to the nature of the burden required of the plaintiff in a section 145.682 dismissal motion and therefore I conclude that the court abused its discretion in dismissing Broehm's claim on this basis. Cf. Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963) (holding that "A claim is sufficient against a motion to dismiss * * * if it is possible o
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