OB/GYN Expert Witnesses Prohibited From Discussing Obstetric Nursing Standards of Care

Court:  United States District Court for the District of North Dakota, Eastern Division

Jurisdiction:  Federal

Case NameFamilies Advocate, LLC v. Sanford Clinic North

Citation: 2019 U.S. Dist. LEXIS 97503

The defendants argued the court should exclude the experts’ testimonies because of Rule 702 of the Federal Rules of Evidence.  The court agreed.


This medical malpractice case involved the birth of a child.  The plaintiffs were the infant’s conservator, Families Advocate, LLC, and his parents.  The defendants were the attending physician, her employer clinic, and the hospital where the mother gave birth to the child.  The hospital also hired several health care providers engaged in the care of the child and his parents.  The plaintiffs argued that the minor sustained a profound and permanent brain injury as a result of the defendants’ negligence.  They retained two obstetricians to testify about the applicable standards of care for nurses.

The Plaintiffs’ Nursing Expert Witness

Under Rule 702, the defendant hospital sought to exclude the testimony of the plaintiffs’ obstetric experts on the applicable standards of nursing care and whether they were violated.  The defendant claimed that neither expert qualified as a nurse.  The defendant also stated that the requirements for nurse certification in North Dakota are distinct from those for physician licensing.  Although the doctors may have regularly consulted with nurses in their obstetric practices, this did not render them eligible to testify on nursing standards of care.

One expert testified that he was not a nurse nor trained or licensed as a nurse.  He believed he was qualified to opine on nursing standards of care because he worked with nurses every day.  Furthermore, he stated that he was married to a nurse, worked with nurses, and sat on committees with them.  Additionally, the expert interviewed candidates for nursing-supervisor positions.  He also believed that he was familiar with the elements of their education.

The other expert had never been trained or licensed as a nurse, nor had she carried out a nursing assessment.  She also testified that she had experience working with nurses.  This expert gave anecdotal accounts of the tasks obstetric nurses in her hospital are assigned.  She explained how some of the behaviors and reactions of the defendant’s obstetric nurses would be considered very rare in her hospital.


The plaintiffs alleged the two (2) nursing expert witnesses should be allowed to give their opinions on nursing standards of care.  They were obstetricians who had worked extensively in clinical settings with nurses.  The court was not in agreement.  There was no indication that either expert had any training, skills, or specialized knowledge on nursing standards of care.  The experts only knew the specific demands and directives they might give to nurses who work in their practices.

Under Rule 702, these physicians’ views on the applicable nursing standards of care were not relevant to this case.  The experts had anecdotal evidence of how nurses usually operate in hospital settings.  However, that evidence could not sufficiently advise the jury of the applicable nursing standards of care in this case.  The court stated, according to Rule 702 of the Rules of Procedure, that their views on these matters were not adequately accurate or reliable in the form of evidence.


The court granted the defendant’s motion to exclude testimonies of the nursing expert witnesses.

Key Takeaways for Experts

Before taking on a new case, carefully consider the issues you will be called to address in your opinion testimony.  Exercise caution when taking on cases outside of your specialty, as your testimony is more likely to be excluded.  This affects your credibility as an expert on any cases you work on down the line, as your challenges follow you.  Attorneys may look at past challenges when considering whether to hire you as an expert witness.  Therefore, challenges to your opinions impact your future casework.

It may be tempting to opine on topics you have been exposed to in a professional setting.  In this case, the obstetrician experts collaborated daily with nurses and delegated tasks to them.  However, discussing delegation of tasks to another practitioner is not the same as discussing that practitioner’s standards of care. In terms of professional opinions, you should have that specific background or experience necessary to render an opinion.

REFERENCE:  Expert Institute; 11 JAN 2023; Wendy Ketner, M.D.