                                                                                    FILED
                                                                            May 30 2017, 10:04 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Rick A. Cory                                              Shawn Swope
      Scott A. Danks                                            Michael J. DeYoung
      Danks & Danks                                             Swope Law Offices, LLC
      Evansville, Indiana                                       Schererville, Indiana
                                                                ATTORNEYS FOR INTERVENING
                                                                PARTY, SAFE AUTO INSURANCE
                                                                Brett M. Haworth
                                                                David M. Henn
                                                                Henn Haworth Cummings + Page
                                                                Greenwood, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Charles Aillones,                                         May 30, 2017
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                82A01-1609-CT-2138
              v.                                                Appeal from the Vanderburgh
                                                                Superior Court
      Glen D. Minton,                                           The Honorable Leslie C. Shively,
      Appellee-Defendant.                                       Judge
                                                                Trial Court Cause No.
                                                                82D03-1312-CT-5493



      Mathias, Judge.


[1]   Charles Aillones (“Aillones”) filed a negligence claim against Glen Minton

      (“Minton”), alleging that Aillones was injured during an automobile accident

      Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017                           Page 1 of 17
      that was Minton’s fault. Aillones was treated by a nurse practitioner, and

      during deposition, Minton’s counsel objected to testimony by the nurse

      practitioner regarding whether Aillones’s injuries were caused by the accident.

      Aillones then filed a motion asking the Vanderburgh Superior Court to qualify

      the nurse practitioner as an expert witness. The trial court denied this motion,

      but certified its order for interlocutory appeal on Aillones’s request. This court

      accepted interlocutory jurisdiction to address the question of whether the trial

      court erred in concluding that Aillones’s witness, a nurse practitioner, cannot be

      an expert witness. Concluding that a nurse practitioner can, under the proper

      circumstances, be an expert witness, we reverse.


                                  Facts and Procedural History

[2]   On June 2, 2012, Aillones was driving his vehicle in Evansville, Indiana when

      he was struck from behind by a vehicle driven by Minton. Aillones was injured

      in the collision and received treatment from Alan Swartz (“Swartz”), a licensed

      nurse practitioner, for a cervical sprain and pain in his lower back.

[3]   Swartz studied nursing at the University of Southern Indiana, where he

      received a bachelor’s degree in nursing. Thereafter, he continued his studies at

      the University of Southern Indiana and received a master’s degree to be a nurse

      practitioner. Swartz is licensed and board certified to practice as a nurse

      practitioner in both Kentucky and Indiana. As a nurse practitioner, Swartz

      examines and treats patients. He also interprets lab results and can prescribe

      certain medications and refer patients to occupational or physical therapy.


      Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017   Page 2 of 17
      During the course of his practice, Swartz has seen more than 100 patients who

      have been injured in automobile accidents.

[4]   Swartz first saw Aillones on June 12, 2012, when Aillones presented with neck

      pain, headache, and pain in the mid-back when he sat. Swartz diagnosed

      Aillones with a concussion and cervical sprain or spondylosis.1 Swartz ordered

      a CT scan of Aillones’s brain and prescribed him a muscle relaxant and

      ibuprofen for the pain.


[5]   Swartz saw Aillones again on June 29, 2012. Aillones still complained of pain

      in his neck and lower back. Swartz switched Aillones from ibuprofen to

      naproxen for the musculoskeletal pain and referred him to a physical therapist.

      Swartz next saw Aillones on September 12, 2012. Aillones’s condition had

      somewhat improved, but he still complained of pain and indicated that he

      preferred ibuprofen over naproxen. Aillones stated that his pain only became a

      problem about once a week and requested either a stronger analgesic or a

      referral to a pain management specialist. Swartz reviewed the lab results he had

      obtained and switched Aillones back on ibuprofen. He told Aillones to see him

      again in six months.

[6]   On December 9, 2013, Aillones filed a negligence action against Minton.

      During discovery, Swartz was deposed on April 22, 2016, and testified that




      1
        Specifically, Swartz explained at the deposition, “It was probably more than a sprain, but with the
      computer system at the time, I couldn’t get the proper diagnosis, which would have been a cervical sprain. So
      I had to use a spondylosis in order to have the documentation in the computer at all.” Appellant’s App. p. 62.

      Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017                          Page 3 of 17
      Aillones’s injuries and improvement were consistent with soft tissue injuries.

      Aillones’s counsel then asked Swartz, “Based on your experience and skill and

      education as a nurse practitioner, do you have — have you formed an opinion

      as to whether or not the complaints and injuries that [were] complained of by

      [Aillones] were caused by a car wreck on June 2, 2012?” Swartz replied, “Well,

      I wasn’t there to see the accident, but he was in some sort of trauma that would

      have caused these injuries.” Appellant’s App. p. 72. Aillones’s counsel then

      asked, “Assuming we have no other forms of trauma near that date, is it your

      opinion, to a reasonable degree of medical probability, that the injuries and

      complaints of Charles Aillones were caused by the automobile accident or

      automobile wreck of June 2, 2012?” Id. Swartz answered, “I say it’s consistent

      with a motor vehicle accident,” and after another similar question, “I think it

      would be consistent with what was described to me from his injury that he

      suffered.” Id. at 72-73. Minton’s counsel objected to each of these questions

      based on a lack of foundation for Swartz’s opinions. Id.


[7]   On May 19, 2016, Aillones filed a motion titled, “Plaintiff’s Motion for Hearing

      on Objection Asserted During Evidentiary Deposition and a Finding that a

      Nurse Practitioner Qualifies as an Expert Witness on Causation.” Appellant’s

      App. p. 26. After a response by Minton, the trial court held a hearing on

      Aillones’s motion on July 1, 2016, at the conclusion of which the court took the

      matter under advisement. on July 7, 2016, the trial court entered an order

      denying Aillones’s motion, which provided in relevant part:




      Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017   Page 4 of 17
              The court having conducted oral argument on the issue of
              whether a nurse practitioner is an expert witness on causation
              and having heard the argument of counsel, now rules that a nurse
              practitioner in this case would not qualify as an expert witness.
              The court relies upon Nasser v. St. Vincent Hosp. and Health
              Services, 926 N.E.2d 43 (Ind. Ct. App. 2010).


      Appellant’s App. p. 22.

[8]   On August 5, 2016, Aillones filed a motion to reconsider or, in the alternative,

      to certify the court’s ruling for interlocutory appeal. The trial court then granted

      Aillones’s request to certify its order for interlocutory appeal. Aillones then

      petitioned this court to accept interlocutory jurisdiction on September 20, 2016,

      which we granted on October 25, 2016.


                                          Standard of Review

[9]   We review decisions concerning the admissibility of evidence only for an abuse

      of discretion. Arlton v. Schraut, 936 N.E.2d 831, 836 (Ind. Ct. App. 2010), trans.

      denied. An abuse of discretion occurs if the trial court’s decision is clearly

      erroneous and against the logic and effect of the facts and circumstances before

      the court or if its decision is without reason or is based upon impermissible

      considerations. Id. However, to the extent that the evidentiary issue depends on

      the construction of a rule of evidence, and not the rule’s application to any

      particular set of facts, our review is de novo. Id.




      Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017     Page 5 of 17
                                       Discussion and Decision

[10]   Aillones claims that the trial court erred by concluding that Swartz, a nurse

       practitioner, could not testify as an expert witness with regard to the causation

       of Aillones’s injuries. The admission of the testimony of expert witnesses is

       governed by Indiana Evidence Rule 702, which provides in relevant part:


               (a) A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an
               opinion or otherwise if the expert’s scientific, technical, or other
               specialized knowledge will help the trier of fact to understand the
               evidence or to determine a fact in issue.


[11]   Thus, for a witness to qualify as an expert, the subject matter of the witness’s

       testimony must be distinctly related to some scientific field, business, or

       profession beyond the knowledge of the average person, and the witness must

       have sufficient skill, knowledge, or experience in that area so that the opinion

       will aid the trier of fact. Hastings v. State, 58 N.E.3d 919, 924 (Ind. Ct. App.

       2016) (Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999)). “‘If the witness has any

       peculiar knowledge or experience not common to the world that renders the

       witness’s opinion founded upon that knowledge any aid to the trier of fact, the

       witness may testify as an expert.’” Id. (quoting 13 Indiana Practice, Indiana

       Evidence § 702.107 (3d ed.)). As we noted in Hastings, Indiana courts have

       allowed testimony from experts who had no formal training, e.g. drug users

       who testified regarding the identity of drugs based on their own experience. Id.

       (citing Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct. App. 2014)).



       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017    Page 6 of 17
[12]   The trial court here based its decision on the opinion of this court in Nasser v. St.

       Vincent Hospital & Health Services, 926 N.E.2d 43 (Ind. Ct. App. 2010). In that

       case, the plaintiff sued the hospital claiming malpractice because the nursing

       staff at the hospital did not respond to the plaintiff’s repeated calls for help,

       thereby leaving the plaintiff alone to deliver two stillborn fetuses in her hospital

       bed. Id. at 44. The convened medical review panel consisted of two medical

       doctors and one registered nurse. Id. The two doctors concluded that the

       hospital did not fail to meet the applicable standard of care and that the conduct

       complained of was not a factor in the plaintiff’s damages. Id. The nurse,

       however, concluded that the hospital did fail to meet the applicable standard of

       care and this failure was a factor of the resultant damages. Id.


[13]   Pursuant to the applicable portions of the Medical Malpractice Act (“MMA”),

       the defendant hospital filed for summary judgment and, in support of its

       motion, submitted the opinion of the physicians comprising the majority of the

       medical review panel. Nasser’s designated evidence in response to the hospital’s

       motion included the opinion of the nurse who had dissented from the majority

       in the medical review panel. The trial court granted summary judgment in favor

       of the hospital, concluding that Nasser was required to counter the opinion of

       the medical review board with expert testimony from a physician. Id. at 47.


[14]   On appeal, we noted that, pursuant to the MMA, nurses are qualified to serve

       on medical review panels, the opinion of the review panel are admissible as

       evidence, and members of the panel may testify. Id. at 51-52 (citing Ind. Code §

       34-18-10-23). However, we held that Indiana Evidence Rule 702 prevents

       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017     Page 7 of 17
       nurses from qualifying as experts regarding medical causation, even when they

       served on the medical review panel. Id. at 52. Because Nasser had not

       designated any other evidence regarding causation, we affirmed the trial court’s

       grant of summary judgment. Id.


[15]   Nasser relied upon Long v. Methodist Hospital of Indiana, Inc., 699 N.E.2d 1164

       (Ind. Ct. App. 1998), which addressed whether a nurse could offer expert

       testimony as to the medical causes of injuries. The Long court held that because

       there is a significant difference in the education, training, and authority to

       diagnose and treat diseases between physicians and nurses, 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. Id. at 1169. Therefore, the Long court concluded that the nurse was

       not qualified to offer expert testimony on the issue of whether Methodist’s

       conduct caused the plaintiff’s injuries. Id. Consequently, the Long court held

       that the trial court did not err in striking the nurse’s affidavit as to the issue of

       causation.2 Id.; see also Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388,

       398 (Ind. Ct. App. 2010) (“Based upon Long, we conclude that [the nurse’s]

       affidavit was inadmissible for the purpose of creating an issue of fact regarding

       whether Clarian’s actions were the proximate cause of Wagler’s injuries.”),



       2
         Nasser viewed the holding in Long implicating Indiana Evidence Rule 702. See Nasser, 926 N.E.2d at 51
       (“Though not the explicit basis for the Long court’s holding, this holding implicates Indiana Evidence Rule
       702.”). However, Long makes no mention of Rule 702 and appears to have been decided without any analysis
       of the applicability of Rule 702. Therefore, we question whether Long has any applicability to an analysis
       under Rule 702.

       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017                        Page 8 of 17
       disapproved of on other grounds by Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d

       1184 (Ind. 2016).

[16]   These cases seem to support a bright-line rule that nurses cannot testify as

       expert witnesses with regard to causation. However, the situation is more

       nuanced than these cases might suggest. First, Nasser, Long, and Wagler were

       medical malpractice cases and held that a nurse could not testify regarding as to

       whether a medical provider’s conduct caused a patient’s injuries. The present

       case, however, is a simple tort claim, not a medical malpractice claim; at issue

       here is not whether a medical provider caused a patient’s injuries, but whether a

       plaintiff’s injuries were caused by an automobile accident. Thus, Nasser, Long,

       and Wagler are not directly on point.


[17]   Furthermore, this court more recently held in Curts v. Miller’s Health Systems,

       Inc., 972 N.E.2d 966 (Ind. Ct. App. 2012), the issue before the court was

       whether a nursing home failed to meet its standard of care and whether injuries

       from the decedent patient’s fall caused her death approximately twenty-four

       hours later. After reviewing Long and Nasser, the Curts court wrote, “we cannot

       foreclose the possibility that some nurses have sufficient expertise to qualify as

       an expert witness.” Id. at 971. The Curts court continued:


               [W]e are not prepared to declare a blanket rule that nurses cannot qualify
               as expert witnesses under Indiana Evidence Rule 702 and testify as to
               whether a healthcare provider breached a standard of care or whether an
               alleged breach caused an injury. Indiana Evidence Rule 702(a)
               provides “a witness qualified as an expert by knowledge, skill,
               experience, training, or education, may testify thereto in the form

       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017          Page 9 of 17
                of an opinion or otherwise.” Just as the Rule states, we hold a
                nurse could qualify as an expert regarding medical standards of care and
                causation in some circumstances. The determinative question is
                whether the nurse has sufficient expertise, as provided in Rule
                702(a), with the factual circumstances giving rise to the claim and
                the patient’s injuries.


       Id. at 971 (emphases added).3


[18]   A similar approach was adopted by our supreme court in Bennett v. Richmond,

       960 N.E.2d 782 (Ind. 2012), which addressed whether a psychologist (as

       opposed to a psychiatrist, who is also a medical doctor) could testify as an

       expert on behalf of a plaintiff regarding the cause of the plaintiff’s brain injury.

       The court held that “[n]either the criteria for qualifying under Rule 702

       (knowledge, skill, experience, training, or education) nor the purpose for which

       expert testimony is admitted (to assist the trier of fact) supports a per se rule

       banning psychologists’ testimony in this manner.” Id. at 786. The court noted

       that its approach differed from the per se exclusion rule of Long, Nasser, and

       Wagler. Id. at 786 n.8.


[19]   Pursuant to Curts and Bennett, we conclude no blanket rule prevents a nurse as

       acting as an expert witness. Instead, the pertinent question in the present case is

       whether Swartz has sufficient “knowledge, skill, experience, training, or




       3
        Nevertheless, the Curts court held that the plaintiff did not present sufficient evidence of the nurse’s
       expertise to support a conclusion that she qualified as an expert concerning the defendant’s alleged breach of
       care and whether this alleged breach caused the decedent’s death. Id.

       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017                          Page 10 of 17
       education” and if his specialized knowledge would “help the trier of fact

       understand the evidence or determine a fact in issue.” Evid. R. 702(a).

[20]   In addressing this question, we note that Swartz is not only a registered nurse,

       but a nurse practitioner. The Indiana Board of Nursing, under the authority

       granted to it by Indiana code section 25-23-1-7.1, has defined a “nurse

       practitioner” as

               [A]n advanced practice nurse who provides advanced levels of
               nursing client care in a specialty role, who meets the
               requirements of an advanced practice nurse as outlined in section
               3 of this rule, and who has completed any of the following:


               (1)   A graduate program offered by a college or university
               accredited by the Commission on Recognition of Postsecondary
               Accreditation which prepares the registered nurse to practice as a
               nurse practitioner and meets the requirements of section 6 of this
               rule.


               (2)    A certificate program offered by a college or university
               accredited by the Commission on Recognition of Postsecondary
               Accreditation which prepares the registered nurse to practice as a
               nurse practitioner and meets the requirements of section 6 of this
               rule. Nurse practitioners who complete a certificate program
               must be certified and maintain certification as a nurse
               practitioner by a national organization which requires a national
               certifying examination.




       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017   Page 11 of 17
               (3)      Prior to the promulgation of this article, the following:


                        (A) A formal organized program of study and clinical
                        experience which prepares the registered nurse to practice
                        as a nurse practitioner.


                        (B) The required program of study at a time when there
                        was no credentialing or certification process available in
                        the specialty area of the program of study.


       848 Ind. Admin. Code 4-1-4(a).


[21]   An “advanced practice nurse” such as a nurse practitioner must be


               a registered nurse qualified to practice nursing in a specialty role
               based upon the additional knowledge and skill gained through a
               formal organized program of study and clinical experience, or the
               equivalent as determined by the board, which does not limit but
               extends or expands the function of the nurse which may be
               initiated by the client or provider in settings that shall include
               hospital outpatient clinics and health maintenance organizations.
               ...


       I.C. § 25-23-1-1(b).

[22]   Nurse practitioners “shall perform as an independent and interdependent

       member of the health team.”4 848 Ind. Admin. Code § 4-2-1 (2013). This

       regulation further provides:




       4
         “‘Health team’” means a group of health care providers which may, in addition to health care practitioners,
       include the patient/client, family, and any significant others. 848 Ind. Admin. Code 2-1-3 (2013).

       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017                         Page 12 of 17
        The following are standards for each nurse practitioner:


        (1)      Assess clients by using advanced knowledge and skills to:


                 (A)      identify abnormal conditions;


                 (B)      diagnose health problems;


                 (C)      develop and implement nursing treatment plans;


                 (D)      evaluate patient outcomes; and


                 (E) collaborate with or refer to a practitioner, as defined
                 in IC 25-23-1-19.4, in managing the plan of care.


        (2)     Use advanced knowledge and skills in teaching and guiding
        clients and other health team members.


        (3)     Use appropriate critical thinking skills to make independent
        decisions, commensurate with the autonomy, authority, and
        responsibility of a nurse practitioner.


        (4)    Function within the legal boundaries of their advanced
        practice area and shall have and utilize knowledge of the statutes
        and rules governing their advanced practice area, including the
        following:


                 (A)      State and federal drug laws and regulations.


                 (B) State and federal confidentiality laws and
                 regulations.



Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017        Page 13 of 17
                 (C)      State and federal medical records access laws.


        (5)   Consult and collaborate with other members of the health
        team as appropriate to provide reasonable client care, both acute
        and ongoing.


        (6)   Recognize the limits of individual knowledge and
        experience, and consult with or refer clients to other health care
        providers as appropriate.


        (7)    Retain professional accountability for any delegated
        intervention, and delegate interventions only as authorized by IC
        25-23-1 and this title.


        (8)    Maintain current knowledge and skills in the nurse
        practitioner area.


        (9)   Conduct an assessment of clients and families which may
        include health history, family history, physical examination, and
        evaluation of health risk factors.


        (10) Assess normal and abnormal findings obtained from the history,
        physical examination, and laboratory results.


        (11) Evaluate clients and families regarding development,
        coping ability, and emotional and social well-being.


        (12)     Plan, implement, and evaluate care.


        (13) Develop individualized teaching plans with each client
        based on health needs.




Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017      Page 14 of 17
               (14) Counsel individuals, families, and groups about health and
               illness and promote attention to wellness.


               (15) Participate in periodic or joint evaluations of service
               rendered, including, but not limited to, the following:


                        (A)      Chart reviews.


                        (B)      Client evaluations.


                        (C)      Outcome statistics.


               (16) Conduct and apply research findings appropriate to the
               area of practice.


               (17) Participate, when appropriate, in the joint review of the
               plan of care.


       848 I.A.C. § 4-2-1 (emphases added). Moreover, a nurse practitioner may

       prescribe legend drugs. Ind. Code § 25-23-1-7(a)(9)(B) (providing that Board of

       Nursing shall establish, with the approval of the medical licensing board, the

       requirements that an advanced practice nurse must meet to be granted authority

       to prescribe legend drugs); 848 I.A.C. § 5-1-1 (setting forth the requirements an

       advance practice nurse must meet to be authorized to prescribe legend drugs).

[23]   From this, it is apparent that a nurse practitioner is a highly trained and

       educated medical professional in a highly regulated field. Although a nurse

       practitioner obviously does not possess the same level of training and education

       as a licensed medical doctor, we do not believe this acts as a bar to the

       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017     Page 15 of 17
       admissibility of a nurse practitioner’s expert testimony. Instead, issues regarding

       the comparative level of training and education would go only toward the

       weight to be given to such evidence. See Bennett, 960 N.E.2d at 790 (noting that

       questions regarding the adequacy of the psychologist’s education and training

       or the propriety of his examination of the plaintiff’s injuries went to the weight

       and credibility of the witness’s testimony, not its admissibility).

[24]   Here, it is undisputed that Swartz meets the qualifications to be a nurse

       practitioner. He has a bachelor’s degree in nursing and a master’s degree to be a

       nurse practitioner. Swartz is licensed and board certified to practice as a nurse

       practitioner in Indiana and Kentucky. As a nurse practitioner, Swartz examines

       and treats patients, interprets lab results, and can prescribe certain medications

       and refer patients to occupational or physical therapy. Swartz has seen more

       than 100 patients who have been injured in automobile accidents.

[25]   We therefore conclude that Swartz has sufficient knowledge, skill, experience,

       training, or education to testify as an expert witness. However, Swartz may not

       testify that Aillones’s injuries were caused by the accident,5 as Swartz was not a

       witness to the accident. Importantly, this is not a medical malpractice case

       regarding a medical provider’s conduct. Instead, it is a simple tort claim.

       Accordingly, we hold that although Swartz may not testify that Aillones’s

       injuries were proximately caused by the accident, he may testify whether, in his



       5
        Because the question is not directly before us, however, we express no opinion on whether a nurse
       practitioner, might be able to testify in a medical malpractice case as to medical causation.

       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017                       Page 16 of 17
       expert opinion, Aillones’s injuries were consistent with injuries from an

       automobile accident. Although this may seem a fine line to draw, it is up to

       Aillones’s counsel to persuade the jury that the injuries that Swartz testified are

       consistent with an accident were actually caused by the accident.


                                                  Conclusion

[26]   For these reasons, we reverse the order of the trial court which concluded that

       nurse Swartz could not testify as an expert witness, and we remand for

       proceedings consistent with this opinion.


[27]   Reversed and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 82A01-1609-CT-2138 | May 30, 2017     Page 17 of 17
