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# ~~d~ SUSAN L. CARLSON SUPREME COURT CLERK



### IN TI-IE SUPREME COURT OF THE STATE OF WASHINGTON
RUDYFRAUSTO, ) ) Appellant, ) ) 

### v. ) ) YAKIMAHMA, LLC, a Washington State ) Corporation, ) ) Respondent. )**·~~~~~~~-~-)** No. 93312-0 ENBANC Filed: 

### APR 2 7

## 2017

YU, J.

- The sole issue in this case is whether advancedregistered nurse practitioners (ARNPs) are per se disqualified from testifying onproximate 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 ifthe trial court determines thatthe ARNP meets the thresholdrequirements ofER702. The ability to independently diagnose andprescribe treatment for a particular malady is strong evidence thatthe expertmight be qualified to discuss the cause ofFrausto v. Yakima HMA, No. 93312-0 that same malady. We therefore reverse the trial court and remand for further proceedings consistent with this opinion. FACTUALAND 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 ofmoving him, turning him, and providing him with an appropriate bed. As aresult, Frausto developed pressure ulcers and filed suit against the medical center. 1 Yakima HMA moved for summaryjudgment, arguing that Frausto had failed to provide expert testimony as required by statute. In response, Frausto offered the sworn affidavit ofKaren Wilkinson, an ARNP with more than 3 0 years ofexperience "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 notbasis," thatthe treating nurses breachedthe applicable standard ofcare and that this breachproximately causedFrausto's pressure ulcers. 

### Id. at 128.

1In 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 ofcare for physicians and stated that the claims would allege fault onthe part ofthe nursing staffalone. Verbatim Tr. of Proceedings (Oct. 21, 2015) at 25. We have previouslyheld that only physicians may testify as to another physician's standard ofcare, and we do notreconsider that holding today. See Young v. Key Pharm., Inc., 112 Wn.2d 216, 227, 770 P.2d 182 (1989). 2Frausto v. Yakima HMA, No. 93312-0 The trial court held that while Wilkinson was certainly qualified as an expert and could speakto the applicable standard ofcare, the law did notpermit Wilkinson to testify on the issue ofproximate cause. Frausto initially appealedto Division Three ofthe Court ofAppeals 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 onproximate cause in a medical malpractice case in accordance with RCW 7.70.040? ANALYSIS Washington's statutory scheme creates several categories ofcare providers under the "nursing" umbrella-licensedpractical nurses, registered nurses, and ARNPs--each with varying certification requirements and scopes ofpractice. See RCW 18.79.040-.060. Our legislature has designated ARNPs as the highesttier of nurses, "prepared and qualified to assume primary responsibility and accountability for the care ofpatients" within the narrow scope oftheir particular certifications. RCW 18.79.050; WAC 246-840-300(1). We need considerthe qualifications ofonly ARNPs for purposes ofthis case. YakimaEMA asserts first that we shouldreview the trial court's ruling for abuse ofdiscretion. Ordinarily, evidentiary rulings are a matter ofdiscretion by

3Frausto v. Yakima HMA, No. 93312-0 the trial court and will notbe upset on review absent an abuse ofdiscretion. McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706, 782 P.2d 1045 (1989). However, it is not clear thatthe trial court even attempted to exercise its discretion in resolving an evidentiary issue, believing instead that our case law foreclosed the possibility ofWilkinson's testimony on proximate cause. Verbatim Tr. of Proceedings (Oct. 21, 2015) (VTP) at 33 (noting that "the state ofthe law
... is that the nurse, no matter how well qualified, isn't capable ofgiving a decision on proximate cause"). In any event, "[t]he de novo standard ofreview is used by an appellate court whenreviewing all trial courtrulings made in conjunction with a summaryjudgmentmotion." Folsom v. BurgerKing, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Here, it is undisputed that the decision made bythe trial court that is on review was made pursuantto Yakima HMA's motion for summary judgment. Because the trial court dismissed this case on summaryjudgment, our review is de novo. AbaSheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). In Washington, plaintiffs in a medical malpractice action mustprove two key elements: (1) thatthe defendant health care provider failed to exercise the standard ofcare ofareasonably prudent health care provider inthat same profession and (2) that such failure was aproximate cause ofthe plaintiffs injuries. RCW 7.70.040. With regard to the standard ofcare, we have repeatedly

4Frausto v. Yakima HMA, No. 93312-0 held that "'experttestimony will generally be necessary to establish the standard of care."' Young v. KeyPharm., 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 plaintiffmust show that the alleged breach ofthe standard ofcare "was aproximate cause ofthe injury complained of." RCW 7.70.040(2). Like the standard ofcare, experttestimony is always required except in those few situations where understanding causation "does notrequire technical medical expertise."2 Young, 112 Wn.2d at 228 (giving the examples of "amputatingthe wrong limb or poking apatient in the eye while stitching a wound
on the face"). "Whether an expert is qualified to testify is a determination within the discretion ofthe trial court." Miller v. Peterson, 42 Wn. App. 822, 832, 714 P.2d 695 (1986). In this case, however, the trial court did notbelieve it had any discretion to allow a nursing expertto testify regarding medical causation as a matter oflaw. 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 ("Theplain meaning ofbedsore implies its cause."). We disagree. As Frausto notes in his brief, "bedsores" are described as '"anulceration oftissue deprived of [nutrition] by prolonged pressure."' Id. The ordinaryjuroris unlikely to understand this process without the aid ofexperttestimony.5Frausto v. Yakima HMA, No. 93312-0 Although we have not opined on this specific issue, the Court ofAppeals has offered conflicting analyses on this point in a series ofthree opinions. In the first opinion, the family ofa deceased patient brought suit against a hospital after the patient died from internal bleeding. Colwell v. HolyFamily Hosp., 104 Wn. App. 606, 609, 15 P.3d 210 (2001). The family alleged that hospital stafffailed to adequately monitor the patient. Id. The trial court dismissed the action on summaryjudgment, noting that the family failed to make a prima facie case because their expertregistered nurse "'[was] not competentto render an opinion regarding causation."' Id. at 610. The Court ofAppeals affirmed, holding that "amedical 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 expertregistered nurse] incompetentto testify to medical causation." Id. The courtreaffirmed its prior holding within a more narrow scope in Davies
v. Holy FamilyHospital, 144 Wn. App. 483, 501, 183 P.3d 283 (2008). 3 In Davies, apatientpassed away following a renal biopsy when her internal bleeding wentunrecognized and untreated inthe hospital. Id. at 488. In a medical negligence action, the patient's estate offered declarations from aradiologist and a

3 Althoughthe court decided Davies on February 21, 2008, publication ofthe opinion was not ordereduntil May 13, 2008. Thus, this case was decided second inthe trilogy but published third.
6Frausto v. Yakima HMA, No. 93312-0 registered nurse. Id. at 490. The trial court entered summaryjudgmentdismissing the case, and the Court ofAppeals affirmed. Id. at 487, 491. In addressing the issue ofcausation, the courtunequivocally held that "anurse is not competentto testify as to the patient's cause ofdeath." Id. at 501 (citing Colwell, 104 Wn. App. at 613). Butjustfive days later, the Court ofAppeals reconsidered its reliance on Colwell in dicta when it decidedHill v. SacredHeartMedical Center, 143 Wn. App. 438, 446, 177 P.3d 1152 (2008). InI-fill, apatientbrought suit against the hospital for failing to monitor injections ofaheparin compound following bilateral knee surgery, resulting in a stroke, apulmonary embolism, and deep vein thrombosis. Id. at 441-43. On summaryjudgment, the trial court dismissed the
case based on deficiencies in the affidavits ofthree medical doctors and one registered nurse. Id. at 445. The Court ofAppeals reversed, finding thatthe registered nurse provided evidence ofthe applicable standard ofcare while a medical doctor opined on the issue ofcausation. Id. at 449-50. Although unnecessary to the resolution ofthe case, the courtreexamined 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 ofa duty ofcare, and an injury." Id. at 446. Instead, the courtpointedto ourrules ofevidence providing that "[a]

7Frausto v. Yakima HMA, No. 93312-0 witness may testify as an expert ifhe or she possess knowledge, skill, experience, training, or education that will assist the trier offact." Id. at 447 (citing ER702). In sum, the court stated that it is "[t]he scope ofthe expert's knowledge, not his or herprofessional title, [that] should govern 'thethreshold question ofadmissibility ofexpert medical testimony in a malpractice case."' Id. (quotingPonKwackEng
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 permittestimony from nurses4 regarding causation in medical malpractice cases. In this case, Yakima HMA points to severaljurisdictionsthathave 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, thejurisdictions allowing nurses to testify on causation rely on ER702 for the requisite qualification ofexperts. Ifan ARNP is qualified to independently diagnose aparticular medical condition, it follows that the ARNP may have the requisite expertise under ER702 to discuss medical causation ofthat condition. 

### A. Washington lawprovides thatARNPs may independently diagnose some illnesses and injuries

4 The rules from these otherjurisdictions draw no distinction between different types of nursing licenses, instead referring only to nurses orregistered nurses generally. See cases cited infra note 5. 8Frausto v. Yakima HMA, No. 93312-0
In Washington, the practice ofregistered 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 ofa registered nurse and the performance ofan expanded role inproviding health care services as recognized bythe 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 ofpatients." WAC 246-840-300(1). This includes the authority to "[e]xaminepatients and establish diagnoses bypatienthistory, 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 notpreviously interpreted Washington's statutory and administrative schemes, the plain language makes clear that ARNPs, alongside physicians, are health care providers with specializedtraining allowing for at least some degree of independent medical diagnosis and treatment.

9Frausto v. Yakima HMA, No. 93312-0 YakimaHMA argues thatthe 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 states5permit nurses to testify as to causation, whereas only seven states6 expressly forbid it. The cases cited by Yakima HMA all rely onprovisions 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 oftheir certification. Thus, the minority rule categorically

5The eight states include Idaho, Kansas, Nevada, New York, North Carolina, Ohio, Oklahoma, and Pennsylvania. See Sheridan v. St. Luke'sReg'!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 JudicialDist. 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. 3d437, 447, 597 N.E.2d 1110 (1991); Gaines v. Comanche County Med. Hosp., 2006 OK 39, 143 P.3d 203, 209; Freedv. GeisingerMed. 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 HeartHosp. -Carondelet; LLC, 224 Ariz. 414, 419, 231 P.3d 946 (201O); 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. AlamedCo., 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); Longv. MethodistHosp. of Ind., Inc., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998); Vaughn v. Miss. BaptistMed. 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. ElPaso 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 Elswickv. 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).
10Frausto v. Yakima HMA, No. 93312-0 excluding all types ofnurses from offering causationtestimony should not apply in Washington. The cases cited by Yakima HMA demonstrate this point. For example, the Supreme Court ofMississippi has held that "nursing experts cannot opine as to medical causation and are unable to establish the necessary element ofproximate cause." Vaughn v. Miss. BaptistMed. Ctr., 2008- CA-00987-SCT, 20 So. 3d 645, 652 (Miss. 2009). However, the courtrelied on Mississippi's nursing statute that excludes from nursing practice "acts ofmedical diagnosis or prescriptions ofmedical, therapeutic or corrective measures." MISS. CODE ANN.§ 73-15-5(2). Thus, the courtreasonably heldthat "[s]ince medical diagnosis is outside a nurse's scope ofpractice, logically it would follow that a
nurse should notbe permittedto testify as to his/her diagnostic impressions or as to the cause ofa particular infectious disease or illness." Vaughn, 20 So. 3d at 652. By contrast, Washington's statutory scheme expresslypermits ARNPs to independently diagnose conditions and prescribe medical, therapeutic, or corrective measures. RCW 18.79.050. In Indiana, the Court ofAppeals held that "the determination ofthe medical
cause ofinjuries, which is obtained through diagnosis, for purposes ofoffering experttestimony is beyondthe scope ofnurses['] professional expertise." Longv. MethodistHosp. of Ind., Inc., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998). There, the courtrelied on the "significant difference in the education, training, and

11Frausto v. Yakima HMA, No. 93312-0 authority to diagnose and treat diseases betweenphysicians 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 ofany disease." IND. CODE§ 25-22.5-1-1.l(a)(l)(A). In contrast, Indiananurses 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 ofpractice as compared to Indiana's code. And inTexas, their Court ofAppeals held that "anurse is prohibited from making a medical diagnosis orprescribing corrective or therapeutic treatment." Esquivel v. ElPaso Healthcare Sys., Ltd., 225 S.W.3d 83, 90 (Tex. App. 2005). The courtrelied on state law that expressly excluded from '"[p]rofessional nursing'" the "acts ofmedical diagnosis or the prescription oftherapeutic or corrective measures." TEX. Occ. CODEANN. §301.002(2). Neither Washington's nursing statute nor its administrative code carve out similar exclusions. Taken together, the cases from otherjurisdictions 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 ofnursing.

12Frausto v. Yakima HMA, No. 93312-0 Washington's statutes do not contain similar limitations. Thus, we find this particular line ofout-of-jurisdictionprecedentunpersuasive. B. Washington's ER 702 requires only thatan expertdiscussing causation have scientific, technical, or other specializedknowledge In contrast, Frausto points to several cases from otherjurisdictions holding that nurses are certainly qualifiedto offer an opinion on medical causation. The
common thread among these cases-andindeed the cases from all eight states allowing nurse testimony in some form-is thatthe reasoning is based not on those states' nursing statutes but ontheir rules ofevidence. Because ARNPs in Washington State receive substantially more education, training, and diagnostic authority than registered nurses, a trial court might find in accordance withER702 that a particular ARNP is qualifiedto testify as an expert regarding causation. The second statutory element ofmedical malpractice cases has resulted in relatively few controversies over the years. RCW 7.70.040(2) requires proofonly that the defendant health care provider's failure to adhere to the standard ofcare "was a proximate cause ofthe injury complained of." Except in limited circumstances, plaintiffs in a medical malpractice case must establishproximate
cause through expert testimony. Douglas v. Freeman, 117 Wn.2d 242, 252, 814 P.2d 1160 (1991). "The admissibility ofexperttestimony is governedby [our Rules ofEvidence] 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 ofEvidence detail the circumstances under which a witness may offer testimony in the form ofan expert opinion. "Ifscientific, technical, or other specializedknowledge will assistthe trier offact 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 inthe form ofan opinion or otherwise." ER702. The trial court acts as a gatekeeper, determining whether a particular expert's testimony will assist the trier offact and excluding evidenc~ that does not meetthis 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 ofEvidence resolve the issue ofwho may testify regarding proximate cause in a medical malpractice action. In support, Frausto points to severaljurisdictions that have allowed nurses to offer causation testimony on this basis. For example, the Supreme Court ofNorth Carolinahas previously heldthat
a nurse was qualified to testify regarding the cause ofdeath for apatient suffering
severe burn trauma. State v. Tyler, 346 N.C. 187, 204, 485 S.E.2d 599 (1997). Without discussion ofthe statutory qualifications ofnurses, the court insteadreHed
on North Carolina's rule ofevidence governing expert testimony. Id. (citing N.C. GEN. STAT.§ 8C-702). Pursuantto that rule, the court found that the expert nurse, "throughboth study and experience, was better qualified than thejuryto form an

14Frausto 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 thejury in evaluating the weight and credibility ofhertestimony." Id. The Supreme Court in Oklahomaheld that nurses are qualified to discuss the causation and treatment ofpressure ulcers specifically. Gaines v. Comanche County Med. Hosp., 2006 OK 39, 143 P.3d 203, 207. The court agreed with the Kansas Court ofAppeals that "such skin eruptions are 'primarily a nursing problem."' Id. (quotingMellies v. Nat'lHeritage, Inc., 6 Kan. App. 2d 910, 918, 636 P.2d 215 (1981)). In fact, the court noted from its researchthat every other jurisdictionpermitted causationtestimony from nurses in cases involvingpressure ulcers specifically. Id. Further, the court found that such testimony was consistent with Oklahoma's rule ofevidence providing for experttestimony. Id. at 207-08 (quoting Okla. Stat. tit. 12, § 2702, which qualifies witnesses as experts based on "knowledge, skill, experience, training or education"). And inPennsylvania, the Supreme Courtreversed priorprecedentthat prohibited nurses from offering opinion testimony on medical causation. Freedv. GeisingerMed. 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 orpotential healthproblems but expressly prohibitedthem from providing medical diagnoses. Id. at 246 (citing 63

15Frausto v. Yakima HMA, No. 93312-0 PA. CONS. STAT.§ 212(1)). Reversing aprior opinion to the contrary, the court in Freedfound "no language whatsoever in the [professional nursing law] statute to suggestthat the principles governing the actualpractice ofnursing are applicable inthe distinct legal arena ofmalpractice or negligence actions, which is governed by the Rules ofEvidence." Id. at 247. Instead, the courtheld 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 throughoutthe country that nurses may be qualified to testify as experts pursuantto the rules of evidence. See, e.g., Sheridan v. St. Luke'sReg'lMed. Ctr., 135 Idaho 775, 785, 25 P.3d 88 (2001) (holding that sufficiency oftestimony in a medical malpractice case is governed by ER701 and ER 702); Mellies, 6 Kan. App. 2d at 920 (holding that "ifa 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 suchparts oftreatment 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 ofdefendant nurse admitting element ofproximate cause established a prima facie case ofmalpractice).

16Frausto v. Yakima HMA, No. 93312-0 We agree with Frausto and holdthat ER702 provides the appropriate mechanism for a trial courtto determine whether an ARNP's opinion on causation is sufficient based on the qualifications ofthe ARNP and the statutory scope ofthat ARNP's authority and certification as ahealth care provider. Even among the
cases cited by Yakima HMA, the courts analyzed the issue ofcausation using the language ofexpert 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 notqualifiedto 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 thatnurses "are not qualifiedto make medical diagnoses or attest to the causes ofillnesses" (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 clinicalnursing experience relevant to diagnosing the causes ofdecubitus ulcers" and thatthe 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 YakimaHMA's claimthat "nurses are not qualified, no mattertheir education, training, or experience, to

17Frausto v. Yakima HMA, No. 93312-0 presentmedical causation opinions." Resp't's Br. at 9 (citing Vaughn, 20 So. 3d at 652). Our legislature has outlined the necessary elements ofproofto prevail in actions resulting from health care. RCW 7.70.040. Decisions on the qualifications ofexperttestimony-whether an expert has the proper foundation for their opinions-remains a function ofthe court. Our Rules ofEvidence provide sufficient guidance to trial courts. By preserving the court's gatekeeping function, expert testimony may be excluded when it clearly cannothelp the trier offact determine ifthe defendant's "failure was aproximate cause ofthe 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 [attrial] that Wilkinson's status as a nonphysician permits thejuryto afford it less weight, butthis 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 ofindependent care authority granted to those holding
an ARNP license in Washington State.

18Frausto v. Yakima HMA, No. 93312-0 Finally, Yakima HMApoints out that Frausto's expert ARNP in this case specialized inpediatric care and argues that such experience does not qualify her to opine as to the cause ofbedsores in adult quadriplegic patients. This may or may not be so, but it is an evidentiary determinationto be made by the trial court. Despite observing that Ms. Wilkinson is "extremely well qualified," has "been teaching all overthe place," and has "been a nurse for a long time," it is clearthat 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 summaryjudgment on the basis that nurses are categoricallyprohibited as a matter oflaw from offering opiniontestimony regarding proximate cause in a medical malpractice claim. However, our state's statutory rules permitARNPs to independently diagnose some conditions within the scope oftheir 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 courtunder our Rules ofEvidence, taking into consideration the ARNP's particular scope ofpractice and expertise. Accordingly, we reverse and remand to the trial court to determine whether Ms. Wilkinson has the requisite

19Frausto v. Yakima HMA, No. 93312-0 qualifications under ER702 to offer an opinion as to the causation ofFrausto's mJunes.

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



### WE CONCUR:

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