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Nursing Home Motion 4 - Motion to Bar Expert Testimony

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Memorandum in Support of Motion in Limine to Bar the Testimony of Dr. Marybeth Tank Buschmann

This Honorable Court should bar the testimony of Plaintiff's proffered opinion witness Dr. MaryBeth Tank Buschmann, as she is unqualified to render opinions regarding the standard of care for nurses and CNAs working in nursing facilities.

This is a negligence case alleging Nursing Home Care Act violations and also negligence by the nursing facility in rendering care to 103-year-old resident, ANNA PRAIRIE. Plaintiff disclosed the opinions of Dr. MaryBeth Tank Buschmann as to the standard of care applicable to SNOW VALLEY, its nurses and CNAs. Thereafter, she testified:

- She only provided hands on nursing care from 1963 to 1967 (Buschmann depo at p. 11). She hasn't provided care to any patients since 1967.

- Dr. Buschmann teaches physiology to graduate nursing students; she does not provide any direct supervision for nurses in training, RN's, LPN's, and the like in the clinical area because she does not have a master's in nursing (Buschmann at p. 15).

- She has never provided hands-on patient care in a nursing home (Buschmann at p. 15).

As part of the analysis a court will employ to determine whether a proposed expert is qualified to render opinion testimony, the plaintiff must demonstrate that the retained opinion witness is qualified to give expert testimony on the case. Northern Trust Company v. Upjohn Co., 213 Ill. App. 3d 390, 572 N.E.2d 1030 (1st Dist. 1981). See also, Thomas v. University of Chicago Lying-In Hospital, 221 Ill. App. 3d 919, 583 N.E.2d 73 (1st Dist. 1991).

In order to recover against a nursing home in a negligence case, the plaintiff must plead and prove the standard of care against which the defendant nursing home's conduct is measured, a breach of the standard of care, and injuries proximately caused by the breach. See Gauthier v. Westfall, 266 Ill. App. 3d 213, 639 N.E.2d 994 (2d Dist. 1994). Except in limited circumstances of gross, patent negligence which is so obvious a layperson could understand it without expert testimony, the plaintiff must establish that the nursing home deviated from the standard of care through the use of expert testimony. See Rosenberg v. Miller, 247 Ill. App. 3d 1023, 617 N.E.2d 493 (2d Dist. 1993). Plaintiff's failure to establish the standard of care against which the defendant's conduct is to be measured is a fatal deficiency in a nursing home malpractice cause of action. See Curtis v. Goldenstein, 125 Ill. App. 3d 562, 465 N.E.2d 1367 (3d Dist. 1984).

Illinois courts also employ a two part test to determine whether a witness in a medical malpractice case is qualified as an expert witness and can testify to the applicable standard of care. The party advocating the use of the expert must first establish that the expert is licensed in the same “school of medicine” as the physician against whom he has been called to testify. Secondly, the proposed expert “must demonstrate that he is otherwise qualified to give expert testimony on the case.” Northern Trust Company v. Upjohn Co., 213 Ill. App. 3d 390, 572 N.E.2d 1030(1st Dist. 1981). See also, Thomas v. University of Chicago Lying-In Hospital, 221 Ill. App. 3d 919, 583 N.E.2d 73 (1st Dist. 1991).

During the deposition of Dr. Buschmann, she admitted that she does not spend any of her professional time treating patients. In fact, during her entire career, she has spent very little time treating patients. She last treated patients in 1967. She does not supervise nurses or nurse candidates working in nursing homes. Rather, she teaches nurses pursuing higher degrees and the subject of physiology. As Plaintiff's proffered expert has not treated patients or been involved in supervising the care and treatment rendered by others, she is unqualified to give standard of care opinion testimony as to the standard of care for nurses and CNAs in 1994.

Plaintiff is attempting to offer the testimony of a person who has not treated or taught candidates in this particular setting in the course of her entire career. To allow Dr. Buschmann to testify as an expert where she has treated no patients over the last 33 years, and has not ever supervised the treatment of patients in nursing homes, would be extremely prejudicial. Dr. Buschmann is clearly not qualified to give expert opinion testimony regarding the care and treatment provided by SNOW VALLEY's nurses and CNAs.

WHEREFORE, for the foregoing reasons, Defendant SNOW VALLEY HEALTH RESOURCES, INC. prays that this Court enter an Order granting its Motion in Limine and barring the testimony of Dr. MaryBeth Tank Buschmann from providing any standard of care testimony as to Defendant SNOW VALLEY, its nurses, or CNAs.

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