Admissibility and the Burden of Proof are as Different as Apples and Oranges…

In a recent case, the Indiana Court of Appeals held that a nurse practitioner can provide expert medical testimony in areas previously reserved to only medical doctors.  In the decision from the Indiana Court of Appeals it allowed a Nurse Practitioner to testify as an expert witnesses in a soft-tissue case. See the link below:

http://publicaccess.courts.in.gov/Appellate/Document?id=186f4912-5b99-4061-8760-648e61c69cb5

In the decision,the Indiana Court of Appeals held that a nurse practitioner may testify that an injury was consistent with being injured in a particular way, but could go no further unless they witnesses the injury occur.

What is admissible and the admissibility standard applied are different than the quantum of evidence required to meet the necessary burden of proof and avoid a directed verdict. For example under our evidentiary rules relevance is determined by:

Rule 401. Test for Relevant Evidence

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Admissibility for evidentiary purposes requires you to meet a very low threshold as seen above under IRE 401.  As a result, I would stick with a “reasonable degree of medical probability” in formulating medical/legal questions needed to establish an essential element of your claim. A particular medical finding could be consistent with multiple diagnoses. A mere possibility makes a finding consistent, but not necessarily probable.  So exercise discretion.  

Advertisements

About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on June 3, 2017, in Evidence, exclusion of witnesses, experts. Bookmark the permalink. Leave a comment.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: