Nonphysician Medical Providers’ Testimony in Personal Injury Cases

Are Physician Assistants and Nurse Practitioners going to change expert testimony in personal injury cases?

We had some friends in town this past weekend. One friend is a physician assistant in the ER. It got me thinking about who can testify as an expert in an automobile accident case. Experts are used in personal injury cases to testify to the cause of the plaintiff’s injuries. Experts are also used to testify to the plaintiff’s treatment and the plaintiff’s prognosis. Experts are essential to the determination of damages.

Historically, most medical care was done by a physician (a doctor). However, The Affordable Care Act, an aging population and a shortage of physicians has increased the demand for non-physician health care providers like physician assistants and nurse practitioners. The Bureau of Labor Statistics estimates the physician assistant profession will grow by 38% between 2012 and 2022.
The explosive growth in non-physician providers leaves lawyers wondering who can testify as an expert on behalf of their client especially if they never saw a physician. The Code of VA § 8.01-401.2 was amended in both 2014 and 2015 to allow a physician assistant or nurse practitioner to testify to the following, “etiology, diagnosis, prognosis, treatment, treatment plan, and disability, including anatomical, physiological, and pathological considerations.” A physician assistant or nurse practitioner may not testify against a doctor as to diagnosis or treatment in a medical malpractice action.

The question still unanswered in my mind is whether judges and juries are going to trust the physician assistant. Physicians (Doctors) are historically given great deference by judges and juries. Will defense counsel simply call a physician as an expert to rebut the treating nurse practitioner’s testimony? Will the judge or jury side with the physician because they have more education? I don’t know the answers to these questions. I am certainly interested in seeing how the physician – non-physician dynamic evolves over time.

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