This opinion was filed for record 

at_ B, (J) 4h on A\Af I kl, 2,Ui, 1 

~~d~ SUSAN L. CARLSON 

SUPREME COURT CLERK 

IN TI-IE SUPREME COURT OF THE STATE OF WASHINGTON 

RUDY FRAUSTO, ) 

) 

Appellant, ) 

) 

v. ) 

) 

YAKIMA HMA, LLC, a Washington State ) 

Corporation, ) 

) 

Respondent. ) 

·~~~~~~~-~-) 

No. 93312-0 

EN BANC 

Filed: APR 2 7 2017 

YU, J. - The sole issue in this case is whether advanced registered nurse 

practitioners (ARNPs) are per se disqualified from testifying on proximate cause in 

a medical negligence case. For the reasons discussed below, we hold that ARNPs 

may be qualified to testify regarding causation in a medical malpractice case if the 

trial court determines that the ARNP meets the threshold requirements of ER 702. 

The ability to independently diagnose and prescribe treatment for a particular 

malady is strong evidence that the expert might be qualified to discuss the cause of 
Frausto v. Yakima HMA, No. 93312-0 

that same malady. We therefore reverse the trial court and remand for further 

proceedings consistent with this opinion. 

FACTUAL AND PROCEDURAL HISTORY 

Rudy Frausto, a 70-year-old quadriplegic man, checked in to Yakima HMA 

LLC for pneumonia. While there, the nurses allegedly failed to provide proper 

care in the form of moving him, turning him, and providing him with an 

appropriate bed. As a result, Frausto developed pressure ulcers and filed suit 

against the medical center. 1 

Yakima HMA moved for summary judgment, arguing that Frausto had 

failed to provide expert testimony as required by statute. In response, Frausto 

offered the sworn affidavit of Karen Wilkinson, an ARNP with more than 3 0 years 

of experience "providing direct patient care, serving as clinical nursing faculty for 

students providing care, and publishing nursing texts on the subject." Clerk's 

Papers at 127, 136-37. Wilkinson stated her "professional objective medical 

opinion, on a more probable than not basis," that the treating nurses breached the 

applicable standard of care and that this breach proximately caused Frausto' s 

pressure ulcers. Id. at 128. 

1 In his suit, Frausto did not name any physicians or nurses individually. Frausto later 

conceded that nurses may not express an opinion as to the standard of care for physicians and 

stated that the claims would allege fault on the part of the nursing staff alone. Verbatim Tr. of 

Proceedings (Oct. 21, 2015) at 25. We have previously held that only physicians may testify as 

to another physician's standard of care, and we do not reconsider that holding today. See Young 

v. Key Pharm., Inc., 112 Wn.2d 216, 227, 770 P.2d 182 (1989). 

2 
Frausto v. Yakima HMA, No. 93312-0 

The trial court held that while Wilkinson was certainly qualified as an expert 

and could speak to the applicable standard of care, the law did not permit 

Wilkinson to testify on the issue of proximate cause. Frausto initially appealed to 

Division Three of the Court of Appeals but later moved to transfer the case to this 

court. Our commissioner granted the motion. Ruling Granting Mot. to Transfer, 

Frausto v. Yakima HMA, LLC, No. 93312-0 (Wash. Sept. 26, 2016). 

ISSUE 

May an ARNP express an opinion on proximate cause in a medical 

malpractice case in accordance with RCW 7.70.040? 

ANALYSIS 

Washington's statutory scheme creates several categories of care providers 

under the "nursing" umbrella-licensed practical nurses, registered nurses, and 

ARNPs--each with varying certification requirements and scopes of practice. See 

RCW 18. 79. 040-. 060. Our legislature has designated ARNPs as the highest tier of 

nurses, "prepared and qualified to assume primary responsibility and 

accountability for the care of patients" within the narrow scope of their particular 

certifications. RCW 18.79.050; WAC 246-840-300(1 ). We need consider the 

qualifications of only ARNPs for purposes of this case. 

Yakima EMA asserts first that we should review the trial court's ruling for 

abuse of discretion. Ordinarily, evidentiary rulings are a matter of discretion by 

3 
Frausto v. Yakima HMA, No. 93312-0 

the trial court and will not be upset on review absent an abuse of discretion. 

McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706, 782 P.2d 1045 (1989). 

However, it is not clear that the trial court even attempted to exercise its discretion 

in resolving an evidentiary issue, believing instead that our case law foreclosed the 

possibility of Wilkinson's testimony on proximate cause. Verbatim Tr. of 

Proceedings (Oct. 21, 2015) (VTP) at 33 (noting that "the state of the law ... is 

that the nurse, no matter how well qualified, isn't capable of giving a decision on 

proximate cause"). In any event, "[t]he de novo standard of review is used by an 

appellate court when reviewing all trial court rulings made in conjunction with a 

summary judgment motion." Folsom v. Burger King, 135 Wn.2d 658, 663, 958 

P.2d 301 (1998). Here, it is undisputed that the decision made by the trial court 

that is on review was made pursuant to Yakima HMA' s motion for summary 

judgment. Because the trial court dismissed this case on summary judgment, our 

review is de novo. Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 

(2006). 

In Washington, plaintiffs in a medical malpractice action must prove two 

key elements: ( 1) that the defendant health care provider failed to exercise the 

standard of care of a reasonably prudent health care provider in that same 

profession and (2) that such failure was a proximate cause of the plaintiffs 

injuries. RCW 7.70.040. With regard to the standard of care, we have repeatedly 

4 
Frausto v. Yakima HMA, No. 93312-0 

held that "'expert testimony will generally be necessary to establish the standard of 

care."' Young v. Key Pharm., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989) 

(quoting Harris v. Groth, 99 Wn.2d 438, 449, 663 P.2d 113 (1983)). The expert 

must have "sufficient expertise in the relevant specialty" such that the expert is 

familiar with the procedure or medical problem at issue. Id. at 229. 

To establish causation, the plaintiff must show that the alleged breach of the 

standard of care "was a proximate cause of the injury complained of." RCW 

7.70.040(2). Like the standard of care, expert testimony is always required except 

in those few situations where understanding causation "does not require technical 

medical expertise."2 Young, 112 Wn.2d at 228 (giving the examples of 

"amputating the wrong limb or poking a patient in the eye while stitching a wound 

on the face"). "Whether an expert is qualified to testify is a determination within 

the discretion of the trial court." Miller v. Peterson, 42 Wn. App. 822, 832, 714 

P.2d 695 (1986). In this case, however, the trial court did not believe it had any 

discretion to allow a nursing expert to testify regarding medical causation as a 

matter of law. VTP (Oct. 21, 2015) at 33. 

2 Frausto argues that the injuries here are the type that do not require expert testimony on 

causation. Appellant's Br. at 9 ("The plain meaning of bedsore implies its cause."). We 

disagree. As Frausto notes in his brief, "bedsores" are described as '"an ulceration of tissue 

deprived of [nutrition] by prolonged pressure."' Id. The ordinary juror is unlikely to understand 

this process without the aid of expert testimony. 

5 
Frausto v. Yakima HMA, No. 93312-0 

Although we have not opined on this specific issue, the Court of Appeals has 

offered conflicting analyses on this point in a series of three opinions. 

In the first opinion, the family of a deceased patient brought suit against a 

hospital after the patient died from internal bleeding. Colwell v. Holy Family 

Hosp., 104 Wn. App. 606, 609, 15 P.3d 210 (2001). The family alleged that 

hospital staff failed to adequately monitor the patient. Id. The trial court 

dismissed the action on summary judgment, noting that the family failed to make a 

prima facie case because their expert registered nurse "' [was] not competent to 

render an opinion regarding causation."' Id. at 610. The Court of Appeals 

affirmed, holding that "a medical doctor must still generally connect [the patient's] 

death to the alleged nursing deficiencies." Id. at 613. Thus, the court found that 

the trial court "did not abuse its discretion in finding [the expert registered nurse] 

incompetent to testify to medical causation." Id. 

The court reaffirmed its prior holding within a more narrow scope in Davies 

v. Holy Family Hospital, 144 Wn. App. 483, 501, 183 P.3d 283 (2008).3 In 

Davies, a patient passed away following a renal biopsy when her internal bleeding 

went unrecognized and untreated in the hospital. Id. at 488. In a medical 

negligence action, the patient's estate offered declarations from a radiologist and a 

3 Although the court decided Davies on February 21, 2008, publication of the opinion 

was not ordered until May 13, 2008. Thus, this case was decided second in the trilogy but 

published third. 

6 
Frausto v. Yakima HMA, No. 93312-0 

registered nurse. Id. at 490. The trial court entered summary judgment dismissing 

the case, and the Court of Appeals affirmed. Id. at 487, 491. In addressing the 

issue of causation, the court unequivocally held that "a nurse is not competent to 

testify as to the patient's cause of death." Id. at 501 (citing Colwell, 104 Wn. App. 

at 613). 

But just five days later, the Court of Appeals reconsidered its reliance on 

Colwell in dicta when it decided Hill v. Sacred Heart Medical Center, 143 Wn. 

App. 438, 446, 177 P.3d 1152 (2008). In I-fill, a patient brought suit against the 

hospital for failing to monitor injections of a heparin compound following bilateral 

knee surgery, resulting in a stroke, a pulmonary embolism, and deep vein 

thrombosis. Id. at 441-43. On summary judgment, the trial court dismissed the 

case based on deficiencies in the affidavits of three medical doctors and one 

registered nurse. Id. at 445. The Court of Appeals reversed, finding that the 

registered nurse provided evidence of the applicable standard of care while a 

medical doctor opined on the issue of causation. Id. at 449-50. 

Although unnecessary to the resolution of the case, the court reexamined its 

holding in Colwell and found that "[t]here is nothing in the statutory scheme that 

suggests that a nurse should be categorically denied the right to express opinions 

on the proximal relationship between a breach of a duty of care, and an injury." Id. 

at 446. Instead, the court pointed to our rules of evidence providing that "[a] 

7 
Frausto v. Yakima HMA, No. 93312-0 

witness may testify as an expert if he or she possess knowledge, skill, experience, 

training, or education that will assist the trier of fact." Id. at 447 (citing ER 702). 

In sum, the court stated that it is "[t]he scope of the expert's knowledge, not his or 

her professional title, [that] should govern 'the threshold question of admissibility 

of expert medical testimony in a malpractice case."' Id. ( quoting Pon Kwack Eng 

v. Klein, 127 Wn. App. 171, 172, 110 P.3d 844 (2005)). 

We believe the court's analysis in Hill is correct. A majority of jurisdictions 

permit testimony from nurses4 regarding causation in medical malpractice cases. 

In this case, Yakima HMA points to several jurisdictions that have held otherwise. 

However, there are two key factors that lead us to reach the opposite conclusion. 

First, Washington's nursing statutes differ from statutes in other states in that our 

legislature has empowered ARNPs to diagnose illnesses and injuries to at least a 

limited degree. RCW 18.79.050. Second, the jurisdictions allowing nurses to 

testify on causation rely on ER 702 for the requisite qualification of experts. If an 

ARNP is qualified to independently diagnose a particular medical condition, it 

follows that the ARNP may have the requisite expertise under ER 702 to discuss 

medical causation of that condition. 

A. Washington law provides that ARNPs may independently diagnose some 

illnesses and injuries 

4 The rules from these other jurisdictions draw no distinction between different types of 

nursing licenses, instead referring only to nurses or registered nurses generally. See cases cited 

infra note 5. 

8 
Frausto v. Yakima HMA, No. 93312-0 

In Washington, the practice of registered nurses generally includes "[t]he 

observation, assessment, diagnosis, care or counsel, and health teaching of 

individuals with illnesses, injuries, or disabilities." RCW 18.79.040(1)(a). 

"Diagnosis" has been defined in the registered nursing context as "the 

identification of, and discrimination between, the person's physical and 

psychosocial signs and symptoms." RCW 18.79.020(4). ARNPs operate at the 

same baseline level as registered nurses, being authorized to perform "the acts of a 

registered nurse and the performance of an expanded role in providing health care 

services as recognized by the medical and nursing professions." RCW 18.79.050. 

However, ARNPs are further empowered to practice independently and "to 

assume primary responsibility and accountability for the care of patients." WAC 

246-840-300(1). This includes the authority to "[e]xamine patients and establish 

diagnoses by patient history, physical examination, and other methods of 

assessment," and even allows for interpreting diagnostic tests and prescribing 

therapies and medical equipment. WAC 246-840-300(5)(a), (c), (e). Although we 

have not previously interpreted Washington's statutory and administrative 

schemes, the plain language makes clear that ARNPs, alongside physicians, are 

health care providers with specialized training allowing for at least some degree of 

independent medical diagnosis and treatment. 

9 
Frausto v. Yakima HMA, No. 93312-0 

Yakima HMA argues that the majority rule in the United States prohibits 

nurses from expressing an opinion as to medical causation in malpractice actions. 

Resp't's Br. at 6-7. This is not so. At least eight states5 permit nurses to testify as 

to causation, whereas only seven states6 expressly forbid it. The cases cited by 

Yakima HMA all rely on provisions within their state's statutory frameworks 

prohibiting nurses from making medical diagnoses; in contrast, Washington's 

statutory framework permits ARNPs to practice independently and make diagnoses 

within the limited scope of their certification. Thus, the minority rule categorically 

5 The eight states include Idaho, Kansas, Nevada, New York, North Carolina, Ohio, 

Oklahoma, and Pennsylvania. See Sheridan v. St. Luke's Reg'! Med. Ctr., 135 Idaho 775, 785, 

25 P.3d 88 (2001); Mellies v. Nat'! Heritage, Inc., 6 Kan. App. 2d 910, 918, 636 P.2d 215 

(1981); Williams v. Eighth Judicial Dist. Ct., 127 Nev. 518, 526, 262 P.3d 360 (2011); Salter v. 

Deaconess Family Med. Ctr., 267 A.D.2d 976, 976, 701 N.Y.S.2d 586 (App. Div. 1999); State v. 

Tyler, 346 N.C. 187, 204, 485 S.E.2d 599 (1997); Morris v. Children's Hosp. Med. Ctr., 73 Ohio 

App. 3d 437, 447, 597 N.E.2d 1110 (1991); Gaines v. Comanche County Med. Hosp., 2006 OK 

39, 143 P.3d 203, 209; Freed v. Geisinger Med. Ctr., 601 Pa. 233, 240, 971 A.2d 1202 (2009). 

In addition, six more states contain case law arguably permitting nurse testimony: Arizona, 

Michigan, New Hampshire, Rhode Island, South Carolina, and Virginia. See Bush v. Thoratec 

Corp., 13 F. Supp. 3d 554, 577 (E.D. La. 2014) (federal court interpreting Virginia law); Salica 

v. Tucson Heart Hosp. -Carondelet; LLC, 224 Ariz. 414, 419, 231 P .3d 946 (201 O); Rickman v. 

Malone, No. 313661, 2014 WL 1679133, at *4 (Mich. Ct. App. Apr. 24, 2014) (unpublished); 

Smith v. HC~ Health Servs. of NH, Inc., 159 N.H. 158, 162-63, 977 A.2d 534 (2009); Malinou 

v. Miriam Hosp., 24 A.3d 497, 510 (R.I. 2011); James v. Lister, 331 S.C. 277, 287, 500 S.E.2d 

198 (1998). 

6 The seven states include Alabama, Georgia, Illinois, Indiana, Mississippi, Tennessee, 

and Texas. See Phillips v. Alamed Co., 588 So. 2d 463, 465 (Ala. 1991); Freeman v. LTC 

Healthcare o,f Statesboro, Inc., 329 Ga. App. 763, 766, 766 S.E.2d 123 (2014); Seefv. Ingalls 

Mem 'l Hosp., 311 Ill. App. 3d 7, 21, 724 N.E.2d 115 (1999); Long v. Methodist Hosp. of Ind., 

Inc., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998); Vaughn v. Miss. Baptist Med. Ctr., 2008-CA00987-SCT, 20 So. 3d 645, 652 (Miss. 2009); Richberger v. W Clinic, PC, 152 S.W.3d 505, 511 

(Tenn. Ct. App. 2004); Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 90 (Tex. App. 

2005). In addition, two more states contain case law arguably excluding nurse testimony: 

Milmesota and Kentucky. See Elswick v. Nichols, 144 F. Supp. 2d 758, 767 (E.D. Ky. 2001); 

Jenco v. Crow, No. A14-0375, 2015 WL 303653, at *2 (Mim1. Ct. App. Jan. 26, 2015) 

(unpublished). 

10 
Frausto v. Yakima HMA, No. 93312-0 

excluding all types of nurses from offering causation testimony should not apply in 

Washington. The cases cited by Yakima HMA demonstrate this point. 

For example, the Supreme Court of Mississippi has held that "nursing 

experts cannot opine as to medical causation and are unable to establish the 

necessary element of proximate cause." Vaughn v. Miss. Baptist Med. Ctr., 2008-

CA-00987-SCT, 20 So. 3d 645, 652 (Miss. 2009). However, the court relied on 

Mississippi's nursing statute that excludes from nursing practice "acts of medical 

diagnosis or prescriptions of medical, therapeutic or corrective measures." MISS. 

CODE ANN.§ 73-15-5(2). Thus, the court reasonably held that "[s]ince medical 

diagnosis is outside a nurse's scope of practice, logically it would follow that a 

nurse should not be permitted to testify as to his/her diagnostic impressions or as to 

the cause of a particular infectious disease or illness." Vaughn, 20 So. 3d at 652. 

By contrast, Washington's statutory scheme expressly permits ARNPs to 

independently diagnose conditions and prescribe medical, therapeutic, or 

corrective measures. RCW 18.79.050. 

In Indiana, the Court of Appeals held that "the determination of the medical 

cause of injuries, which is obtained through diagnosis, for purposes of offering 

expert testimony is beyond the scope of nurses['] professional expertise." Long v. 

Methodist Hosp. of Ind., Inc., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998). There, 

the court relied on the "significant difference in the education, training, and 

11 
Frausto v. Yakima HMA, No. 93312-0 

authority to diagnose and treat diseases between physicians and nurses." Id. 

However, this "significant difference" was based entirely on statute. Indiana 

physicians were authorized to engage in the "diagnosis, treatment, correction, or 

prevention of any disease." IND. CODE§ 25-22.5-1-1.l(a)(l)(A). In contrast, 

Indiana nurses were empowered only to engage in "preventive, restorative, 

maintenance, and promotion activities which include meeting or assisting with 

self-care needs, counseling, and teaching." Id. § 25-23-1-1.1( d). Washington's 

statutory scheme does not contain such sweeping limits to the scope of practice as 

compared to Indiana's code. 

And in Texas, their Court of Appeals held that "a nurse is prohibited from 

making a medical diagnosis or prescribing corrective or therapeutic treatment." 

Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 90 (Tex. App. 2005). 

The court relied on state law that expressly excluded from '" [p ]rofessional 

nursing'" the "acts of medical diagnosis or the prescription of therapeutic or 

corrective measures." TEX. Occ. CODE ANN. § 301.002(2). Neither Washington's 

nursing statute nor its administrative code carve out similar exclusions. 

Taken together, the cases from other jurisdictions that categorically disallow 

nurses from opining on causation in medical malpractice actions rely on explicit 

limitations and exclusions in their state statutes regulating the practice of nursing. 

12 
Frausto v. Yakima HMA, No. 93312-0 

Washington's statutes do not contain similar limitations. Thus, we find this 

particular line of out-of-jurisdiction precedent unpersuasive. 

B. Washington's ER 702 requires only that an expert discussing causation have 

scientific, technical, or other specialized knowledge 

In contrast, Frausto points to several cases from other jurisdictions holding 

that nurses are certainly qualified to offer an opinion on medical causation. The 

common thread among these cases-and indeed the cases from all eight states 

allowing nurse testimony in some form-is that the reasoning is based not on those 

states' nursing statutes but on their rules of evidence. Because ARNPs in 

Washington State receive substantially more education, training, and diagnostic 

authority than registered nurses, a trial court might find in accordance with ER 702 

that a particular ARNP is qualified to testify as an expert regarding causation. 

The second statutory element of medical malpractice cases has resulted in 

relatively few controversies over the years. RCW 7.70.040(2) requires proof only 

that the defendant health care provider's failure to adhere to the standard of care 

"was a proximate cause of the injury complained of." Except in limited 

circumstances, plaintiffs in a medical malpractice case must establish proximate 

cause through expert testimony. Douglas v. Freeman, 117 Wn.2d 242, 252, 814 

P .2d 1160 ( 1991 ). "The admissibility of expert testimony is governed by [ our 

Rules of Evidence] and requires a case by case inquiry." State v. Willis, 151 

Wn.2d 255, 262, 87 P.3d 1164 (2004). 

13 
}rausto v. Yakima HMA, No. 93312-0 

Accordingly, our Rules of Evidence detail the circumstances under which a 

witness may offer testimony in the form of an expert opinion. "If scientific, 

technical, or other specialized knowledge will assist the trier of fact to understand 

the evidence or to determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education, may testify thereto in the form 

of an opinion or otherwise." ER 702. The trial court acts as a gatekeeper, 

determining whether a particular expert's testimony will assist the trier of fact and 

excluding evidenc~ that does not meet this standard. City of Fircrest v. Jensen, 

158 Wn.2d 384, 397, 143 P.3d 776 (2006). Frausto argues that, absent any 

additional statutory requirements, the Rules of Evidence resolve the issue of who 

may testify regarding proximate cause in a medical malpractice action. In support, 

Frausto points to several jurisdictions that have allowed nurses to offer causation 

testimony on this basis. 

For example, the Supreme Court of North Carolina has previously held that 

a nurse was qualified to testify regarding the cause of death for a patient suffering 

severe burn trauma. State v. Tyler, 346 N.C. 187, 204, 485 S.E.2d 599 (1997). 

Without discussion of the statutory qualifications of nurses, the court instead reHed 

on North Carolina's rule of evidence governing expert testimony. Id. ( citing N.C. 

GEN. STAT.§ 8C-702). Pursuant to that rule, the court found that the expert nurse, 

"through both study and experience, was better qualified than the jury to form an 

14 
Frausto v. Yakima HMA, No. 93312-0 

opinion on the cause of [the victim's] death." Id. In fact, the expert's status as a 

nurse "was merely a factor to be considered by the jury in evaluating the weight 

and credibility of her testimony." Id. 

The Supreme Court in Oklahoma held that nurses are qualified to discuss the 

causation and treatment of pressure ulcers specifically. Gaines v. Comanche 

County Med. Hosp., 2006 OK 39, 143 P.3d 203, 207. The court agreed with the 

Kansas Court of Appeals that "such skin eruptions are 'primarily a nursing 

problem."' Id. (quoting Mellies v. Nat'l Heritage, Inc., 6 Kan. App. 2d 910, 918, 

636 P.2d 215 (1981)). In fact, the court noted from its research that every other 

jurisdiction permitted causation testimony from nurses in cases involving pressure 

ulcers specifically. Id. Further, the court found that such testimony was consistent 

with Oklahoma's rule of evidence providing for expert testimony. Id. at 207-08 

( quoting Okla. Stat. tit. 12, § 2702, which qualifies witnesses as experts based on 

"knowledge, skill, experience, training or education"). 

And in Pennsylvania, the Supreme Court reversed prior precedent that 

prohibited nurses from offering opinion testimony on medical causation. Freed v. 

Geisinger Med. Ctr., 601 Pa. 233, 253, 971 A.2d 1202 (2009). In language similar 

to the Mississippi law in Vaughn, Pennsylvania's professional nursing law allowed 

nurses to diagnose human responses to actual or potential health problems but 

expressly prohibited them from providing medical diagnoses. Id. at 246 ( citing 63 

15 
Frausto v. Yakima HMA, No. 93312-0 

PA. CONS. STAT.§ 212(1)). Reversing a prior opinion to the contrary, the court in 

Freed found "no language whatsoever in the [professional nursing law] statute to 

suggest that the principles governing the actual practice of nursing are applicable 

in the distinct legal arena of malpractice or negligence actions, which is governed 

by the Rules of Evidence." Id. at 247. Instead, the court held that the nursing 

statute did not override "the well established liberal standard for qualification of 

expert witness testimony." Id. 

As mentioned above, these cases follow the majority rule throughout the 

country that nurses may be qualified to testify as experts pursuant to the rules of 

evidence. See, e.g., Sheridan v. St. Luke's Reg'l Med. Ctr., 135 Idaho 775, 785, 25 

P.3d 88 (2001) (holding that sufficiency of testimony in a medical malpractice case 

is governed by ER 701 and ER 702); Mellies, 6 Kan. App. 2d at 920 (holding that 

"if a proper foundation is laid as to the nurse's experience with decubitus ulcers, 

she or he can qualify as an expert as to causation and as to such parts of treatment 

and cure that are performed by such nurse"); Williams v. Eighth Judicial Dist. Ct., 

127 Nev. 518, 526, 262 P.3d 360 (2011) (holding that nurses are not per se 

precluded from testifying as to medical causation); Salter v. Deaconess Family 

Med. Ctr., 267 A.D.2d 976, 976, 701 N.Y.S.2d 586 (App. Div. 1999) (finding that 

testimony of defendant nurse admitting element of proximate cause established a 

prima facie case of malpractice). 

16 
Frausto v. Yakima HMA, No. 93312-0 

We agree with Frausto and hold that ER 702 provides the appropriate 

mechanism for a trial court to determine whether an ARNP's opinion on causation 

is sufficient based on the qualifications of the ARNP and the statutory scope of that 

ARNP's authority and certification as a health care provider. Even among the 

cases cited by Yakima HMA, the courts analyzed the issue of causation using the 

language of expert testimony admissibility. See Long, 699 N.E.2d at 1168 (noting 

that a witness without the '" same education, training or experience"' as the 

defendant is "generally not qualified to serve as an expert" ( emphasis added) 

(quoting Stackhouse v. Scanlon, 576 N.E.2d 635, 639 (Ind. Ct. App. 1991))); 

Vaughn, 20 So. 3d at 652 (finding that nurses "are not qualified to make medical 

diagnoses or attest to the causes of illnesses" ( emphasis added)); Esquivel, 225 

S.W.3d at 91 (finding that the expert nurse's "report and [curriculum vitae] do not 

establish that she has any training, education, skill or clinical nursing experience 

relevant to diagnosing the causes of decubitus ulcers" and that the nurse did not 

"possess[] the expertise which would qualify her to express an opinion as to the 

causal link" (emphasis added)). In each case, the court's determination on expert 

qualifications was influenced by that state's nursing statute excluding nurses from 

diagnosing injuries or illnesses. This is contrary to Yakima HMA's claim that 

"nurses are not qualified, no matter their education, training, or experience, to 

17 
Frausto v. Yakima HMA, No. 93312-0 

present medical causation opinions." Resp't's Br. at 9 (citing Vaughn, 20 So. 3d at 

652). 

Our legislature has outlined the necessary elements of proof to prevail in 

actions resulting from health care. RCW 7.70.040. Decisions on the qualifications 

of expert testimony-whether an expert has the proper foundation for their 

opinions-remains a function of the court. Our Rules of Evidence provide 

sufficient guidance to trial courts. By preserving the court's gatekeeping function, 

expert testimony may be excluded when it clearly cannot help the trier of fact 

determine if the defendant's "failure was a proximate cause of the injury 

complained of." RCW 7.70.040(2). As amicus Washington State Association for 

Justice Foundation correctly points out, Yakima HMA is "free to argue [at trial] 

that Wilkinson's status as a nonphysician permits the jury to afford it less weight, 

but this status should not, on its own, render her testimony inadmissible." Br. of 

Amicus Curiae Wash. State Ass'n for Justice Found. at 18-19 (citing State v. 

Rangitsch, 40 Wn. App. 771, 779, 700 P.2d 382 (1985); In re Welfare of Young, 24 

Wn. App. 392, 397, 600 P.2d 1312 (1979), review denied, 93 Wn.2d 1005 (1980)). 

A sweeping ban on causation testimony from expert ARNPs is unnecessary and 

inconsistent with the degree of independent care authority granted to those holding 

an ARNP license in Washington State. 

18 
Frausto v. Yakima HMA, No. 93312-0 

Finally, Yakima HMA points out that Frausto's expert ARNP in this case 

specialized in pediatric care and argues that such experience does not qualify her to 

opine as to the cause of bedsores in adult quadriplegic patients. This may or may 

not be so, but it is an evidentiary determination to be made by the trial court. 

Despite observing that Ms. Wilkinson is "extremely well qualified," has "been 

teaching all over the place," and has "been a nurse for a long time," it is clear that 

the court did not make a finding as to Ms. Wilkinson's qualifications under ER 

702. VTP at 33. As such, the trial court should have an opportunity to hear the 

parties' arguments on this point and exercise its discretion accordingly. 

CONCLUSION 

The trial court entered summary judgment on the basis that nurses are 

categorically prohibited as a matter of law from offering opinion testimony 

regarding proximate cause in a medical malpractice claim. However, our state's 

statutory rules permit ARNPs to independently diagnose some conditions within 

the scope of their certification. Whether or not an ARNP has the requisite 

specialized knowledge to qualify as an expert on causation is a determination left 

to the trial court under our Rules of Evidence, taking into consideration the 

ARNP's particular scope of practice and expertise. Accordingly, we reverse and 

remand to the trial court to determine whether Ms. Wilkinson has the requisite 

19 
Frausto v. Yakima HMA, No. 93312-0 

qualifications under ER 702 to offer an opinion as to the causation ofFrausto's 

mJunes. 

20 
Frausto v. Yakima HMA, No. 93312-0 

WE CONCUR: 

21 

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