Northern Michigan Hospital secures dismissal of labor nursing negligence case on technicality

Marcia Downs sued several doctors and nurses and Northern Michigan Hospital after her baby died immediately after delivery.  She pointed to abnormalities evident in the fetal monitoring of her baby and argued that the labor nurses should have alerted the obstetrician to the need to perform a C-section.  Her case was dismissed by the Circuit Judge and a total of four appeals to higher courts have now occurred; several resulted in reinstatement of various aspects of the case (which was apparently filed initially in 2003).

The instant appeal relates to the trial judge's ruling that the plaintiff's nursing experts were not qualified to testify about the labor and delivery-nursing standard of care.  The Plaintiff had presented the testimony of two licensed nurses who practiced midwifery, actually delivering babies.  The Defendants argued that these two nurses were "overqualified" to testify and that since they didn't share the precise credentials of the NMH labor and delivery nurses, the case must be dismissed.  The Plaintiff pointed out that the nurses had precisely the same licensure and did the exact same job; she argued that simply because they had achieved an additional certification in midwifery, their testimony should not be blocked. 

The Court of Appeals majority--in a typical Kirsten F. Kelly opinion splitting hairs to protect insurers--upheld dismissal of the claim.  It ruled that practicing nurse-midwifery did not constitute the active practice of labor and delivery nursing (although no one explained precisely what the difference is, here, beyond the midwife's capacity to routinely complete the second and third stage of delivery) and therefore the nurse-midwives could not support a case against a labor and delivery nurse.

The dissenting judge pointed out that one of the nurse experts is a faculty member at an accredited nursing school and that if she spent a majority of her time teaching nursing, she should have been qualified to testify.