Partners Joe Desmond and Lauren Cincotta recently obtained a directed verdict on behalf of a licensed practical nurse employed by our nursing home client, a charitable corporation, after a nine day jury trial in Suffolk Superior Court.

The plaintiff alleged that the LPN failed to administer an anti-epileptic drug, Keppra, in accordance with the in accordance with the neuro oncologist’s orders to taper the Keppra dosage on June 18th, 21st, and 22nd, 2018, which caused a major seizure resulting in a fatal cardia arrhythmia on June 23.   The defense of the LPN as to liability was essentially that other unnamed employees of the charitable entity transcribed the orders incorrectly (or at least ambiguously) to the medication administration record causing the missed doses.

The plaintiff’s causation expert, a neurologist, testified prior to the testimony of the plaintiff’s standard of care expert.  Accordingly, his testimony was received de bene in the form of a hypothetical question that asked him to assume that the standard of care expert would testify that the LPN failed to administer the doses of Keppra in breach of the standard of care on three occasions.  Assuming those facts, the neurologist testified that those failures were the cause of the resident’s seizure and fatal arrhythmia resulting from a subtherapeutic level of Keppra.

Cross examination of the standard of care expert established that the error on the 18th was made in the transcription of the medication order by another nurse—not the named defendant. The plaintiff sought to provide additional testimony outside the expert disclosure in an attempt to prove that the defendant nurse was aware of the correct order, and that the failure remained a breach of the standard of care with respect to the failure on the 18th.  At defendant’s request, the Court conducted a voir dire of the expert to decide on the admissibility of the proffer. Finding the testimony beyond the scope of the expert disclosure, the expert was not permitted to provide further testimony.

After the plaintiff rested, the defense moved to strike the testimony of the causation expert on the grounds that the opinion testimony could not stand in light of the absence of facts that were assumed in the hypothetical, ie, that there were 3 missed doses of Keppra that violated the standard of care.   The defense argued that there was a complete failure of expert testimony to establish that two missed doses was sufficient to cause the subtherapeutic level of Keppra that caused the fatal seizure as that question was never posed to the doctor during trial.  After striking the testimony, the Court directed a verdict in favor of the defendant nurse.