Appellate panel hears challenge to tribunal finding that excluded nurse practitioner from malpractice case

An appellate panel heard arguments over whether a medical-malpractice tribunal erred by finding the evidence against nurse practitioner Michael Collins insufficient to proceed. Adam Sutton, attorney for Jean Bennett, the personal representative of the estate of Ronald Bennett, told the court that "the offer of proof, timely filed by the plaintiff, provided ample evidence to meet the very low threshold standard that the tribunal was bound to apply."

The dispute centers on the tribunal's treatment of the plaintiff's Rule 73 offer of proof and whether that submission raised a legitimate question of liability against Collins. Sutton said the patient was seen by Collins on Aug. 4 into the early hours of Aug. 5, was discharged, and returned about 30 hours later in septic shock; he described laboratory values the plaintiff's expert cited, including a lactate that rose from about 2.2'to 2.4 on Collins's watch to 7.7 at the later admission. Sutton said the expert detailed deviations from the standard of care and causation and that the tribunal's decision excluded Collins while finding sufficient evidence as to other providers.

Why the dispute matters: Sutton told the panel the exclusion has practical consequences for the estate's ability to pursue the claim. "We now have nurse Collins out of the case," Sutton said, adding that Collins "couldn't pay the bond. He was indigent. The judge wouldn't reduce the bond. Case is dismissed." Sutton argued that a de novo appellate review should consider the expert letter and the offer of proof and that the tribunal applied a higher-than-permitted threshold when it checked the box that the result was an "unfortunate medical result" for Collins while checking the box indicating sufficient evidence for other defendants in parallel proceedings.

Defense counsel John Waldron, representing Michael Collins, said the tribunal had a sufficient basis to find the evidence lacking as to Collins and framed the issue as one of causation. "It's the position of mister Collins that there was a sufficient basis for the tribunal to find in favor of him, and that's on the issue of causation," Waldron said. He argued the offer of proof must be evaluated against the actual treatment course in the record and that the tribunal panel appropriately considered those facts within the four corners of the offer.

Panel questioning probed both sides' positions. One panel member asked, "What is the finding here on the tribunal on on nurse Collins? What what did they say exactly?" Counsel and the panel discussed that the tribunal used a preprinted form that allowed panelists to check either that there was "sufficient evidence to raise a legitimate question for judicial inquiry" or that the matter was an "unfortunate medical result." The transcript shows the tribunal checked the latter box for Collins while checking the former box for other providers involved in the patient's care on different dates.

Counsel for the plaintiff emphasized a factual sequence the plaintiff's expert relied on: an initial presentation with hypotension, elevated respiratory rate and pulse, a progressively rising lactate and a rising white count with bands, an initial discharge after Collins ordered testing, and a later return when the patient was critically ill and ultimately died. Sutton said the expert concluded earlier diagnosis and inpatient treatment would have been "amenable to cure" and that the offer of proof set forth deviations from the standard of care and causation tied to those deviations.

Waldron disputed that the offer of proof established causation on the face of the record. He pointed to other court filings and argued the timing and diagnostic course shown in the medical records could support a conclusion that the condition would not have been identified earlier even if the patient had remained in the hospital. He said the tribunal panel relied on the four corners of the offer proofs submitted and that oral argument supplements but does not supplant those filings.

The panel also discussed related proceedings and prior visits: counsel said a physician assistant, Hixson, and his supervising physician remained in the case as to a visit about four weeks before the August visit, whereas other providers, including an orthopedist identified as Dr. Willis who saw the patient the day before the Collins visit, were dismissed. Counsel and the panel noted that the tribunal's disparate handling of parallel claims contributed to the appeal.

The appeal will turn on whether the offer of proof satisfied the Rule 73 threshold as articulated in precedent cited by the parties (including the appeals court opinion Feliciano) and whether the tribunal's checked-form findings are reviewable on the record provided. Sutton asked the panel to reverse or otherwise remedy the tribunal's exclusion of Collins; Waldron urged deference to the tribunal's assessment of causation. The panel closed the argument after additional procedural and record clarifications and requested citations or page references to the Rule 73 materials in the appendix for staff review.

Details and procedural posture stated on the record: the appeal concerns only claims against Michael Collins, NP; the dates central to the Collins claim are the Aug. 4 visit and the early hours of Aug. 5 and the patient's return about 30 hours after discharge; the plaintiff submitted an expert report and an offer of proof; the tribunal checked the "unfortunate medical result" box for Collins while finding sufficient evidence as to some other providers. The parties debated whether the tribunal's use of a preprinted form and the absence of a written explanation for the Collins finding preclude appellate review.