MEMORANDUM AND ORDER

J. Thomas Marten, Judge.

This is a wrongful death action, alleging that the decedent died as the result of a nursing home fall. Defendant operator of the home has moved for summary judgment, contending that the plaintiffs' failure to designate any medical expert to testify to causation is fatal to their claims for negligence. The motion raises two issues. Can plaintiffs establish causation through the testimony of two nurses? And can they do so by relying on the coroner's death certificate? The court answers these questions, respectively, "no" and "yes."

Findings of Fact

Clearwater is a skilled nursing and rehabilitation facility. From September 29 to December 1, 2014, Funk resided at Clearwater, except for four days in October when she was at Via Christi St. Francis Hospital. Prior to her death, Funk had multiple health issues, including muscle weakness, edema, depression, atrial fibrillation, hypertension, congestive heart failure, history of seizures, TIAs, coronary artery disease, and chronic kidney disease.

The plaintiffs assert that the 85-year-old Funk fell from her wheelchair and broke her hip on December 1, 2014. She was treated at Via Christi, where on December 2, 2018 Drs. Bradley Dart operated on Funk performing an open reduction of the fracture of her femur with internal fixation.

Funk was discharged and transferred to Life Care Center of Andover. Two weeks later, on December 15, Funk again fell, this time apparently from her bed, and was found on the floor at Life Care Center. Funk died January 7, 2015.

Pinnacle claims that the surgery was successful, but the effects were reversed after Funk suffered the second separate fall.

By prior order, the court dismissed plaintiffs' survival claims against Clearwater. Only the wrongful death claim against the nursing home remains.

Plaintiffs have identified two experts, Betty Pankratz (a Registered Nurse), and Judy Diggs (a Licensed Practical Nurse). Pankratz has a bachelor's degree in education and nursing. Diggs earned her nursing degree through a one-year vocational-technical program, and has worked for some 28 years in providing care to the elderly.

The Amended Certificate of Death completed by Sedgwick County Deputy Medical Examiner Scott Kipper identifies the cause of death as "complications of a left hip fracture" due to a December 1, 2014 fall at the Clearwater nursing home.

Conclusions of Law

Pinnacle argues that plaintiffs have failed to present acceptable medical testimony of causation because Nurses Pankratz and Diggs are simply not qualified to give evidence as to Dorothy Funk's cause of death. In support of its argument, Pinnacle cites numerous cases determining that nurses were not qualified to give expert opinions as to medical causation. See Cunningham v. Riverside, 33 Kan.App.2d 1, 99 P.3d 133 (2004) (patient alleging nursing assistant caused leg fracture was required to present "expert evidence to show that her injury was caused by Profit's conduct," especially given evidence of pre-existing osteoporosis); Giddens v. Via Christi Reg'l Med. Ctr., Inc., 338 P.3d 23 (Kan. Ct. App. 2014) ("[a]s a general rule, only expert medical testimony is competent to prove causation in medical malpractice case")

The Funks argue that the nurses are qualified to testify as to the cause of death, citing Frausto v. Yakima HMA, 188 Wn.2d 227, 393 P.3d 776 (2017) as recognizing a "majority rule ... permit[ting] nurses to express opinions as to medical causation in malpractice actions." (Dkt. 105, at 25). They argue that the testimony of Pankratz and Diggs is admissible under Fed.R.Evid. 702, citing U.S. Surgical v. Orris, Inc., 983 F.Supp. 963 (D. Kan. 1997) and Wooten v. United States, 574 F.Supp. 200 (W.D. Tenn. 1982), and cite Kansas decisions such as Mellies v. National Heritage, Inc., 6 Kan.App.2d 910, 636 P.2d 215 (1981) as also "permit[ting] nurses to render opinions on causation." (Dkt. 105, at 28).

The court finds plaintiffs' authorities unpersuasive. Frausto does indeed point to a very slight majority among state court decisions —when the question is whether nurses are absolutely and categorically barred from ever addressing the issue of causation.1 But the case does not support the conclusion that registered nurses or licensed nurse practitioners may testify as to medical causation in general, let alone, as here, give an opinion as to the cause of death in cases with a complicated etiology.2

Notably, despite an apparently exhaustive exploration of state decisions permitting nurses to testify as expert witnesses (Dkt. 105, at 20-30), the Funks have cited no authority allowing a nurse to testify as to the cause of death. Rather, the cited decisions have simply allowed nurses to testify as to other issues. Overwhelmingly, as indeed in Mellies, the decisions have centered on the ability of nurses to testify as to bedsores.3

To a certain extent, the plaintiffs' argument confuses the ability of a nurse to testify as to a standard of care and as to causation. Thus, citing Mellies, Plaintiffs argue that, "Like bedsores, the testimony of the nurses should be permitted because falls in nursing homes are `primarily a nursing problem,' and the duty for the prevent care, and treatment of falls primarily rests with nursing home, not physicians." (Dkt. 105, at 28). But while preventing falls in nursing homes is a nursing problem, Pinnacle's motion raises the issue not whether it may have violated the standard of care, but the separate issue of whether the fall caused Dorothy Funk's death. In the present case, this determination includes consideration of the fall, but also the effects of the surgery, and a second fall after that surgery on an elderly patient with numerous ailments.

The plaintiffs' citations to two federal decisions are also of little help. In Wooten, the court again addressed the ability of a nurse to testify as to the standard of care, not causation. See 574 F.Supp. at 209 (finding registered nurse was qualified to give expert testimony that "the care given by VA personnel in this case did not meet the standard of care which is acceptable among professionals in the medical field, specifically nursing care").4

Nor, in U.S. Surgical Corp. v. Orris, Inc., 983 F.Supp. 963, 967 (D. Kan. 1997), did this court approve the ability of a nurse to give testimony as to medical causation. The plaintiffs' statement (Dkt. 105, at 23) that in U.S. Surgical the court "f[ou]nd a nurse qualified to testify as an expert in a products liability action" is inaccurate. The case was not a typical products liability action, but a trademark infringement case, in which the plaintiff manufacturer of disposable medical supplies alleged defendant companies were improperly recycling those supplies for reuse. The case did not directly involve any claims of death or personal injury, and the court did not suggest a nurse would be qualified to address such issues. Instead, the court addressed the separate issue of the design of medical instruments;

Id. at 966.

When presented with proposed expert testimony by nurses as to the causation of medical conditions—other than bedsores— most courts have excluded it. See Gordon v. Sunrise Senior Living Serv., 2009 WL 3698527, *3 (D. Col. Nov. 5, 2009) (collecting cases). See also Peters v. Covenant Care Midwest, Inc., No. 8:08CV453, 2009 WL 3020140, at *7 (D. Neb. Sept. 21, 2009); Richardson v. Methodist Hospital of Hattiesburg, 807 So.2d 1244 (Miss. 2002); Estate of Gee ex rel. Beeman v. Bloomington Hosp., 2012 WL 639517, *12 (S. D. Ind. Feb. 7, 2012).5 And, more particularly, when the issue is the cause of a person's death, the exclusion appears virtually universal.

Vaughn v. Mississippi Baptist Med. Ctr., 20 So.3d 645, 652 (Miss. 2009).6

Applying these principles to the present action, the court has no difficulty excluding the opinions of Nurses Pankratz and Diggs as to the cause of death of Dorothy Funk. The plaintiffs have failed to show that the determination of a cause of death falls within their experience, education, or training. Cf. Mellies, 636 Kan. App.2d at 920, 636 P.2d 215 (approving expert nurse testimony as to bedsores, because "their prevention, treatment and cure are largely nursing duties").

The plaintiffs stress the years of experience and training by Registered Nurse Pankratz and Licensed Practical Nurse Diggs. (Dkt. 105, ¶¶ 28-41; 42-61). The cited evidence shows that the witness could provide reliable evidence as to the need to prevent falls in nursing homes, and that a fall may result in a fracture. Otherwise, the cited evidence merely reflects blanket assertions of causation based on reviews of the medical record. Nothing in the cited evidence shows that either Pankratz or Diggs has any prior experience in sorting out the cause of death of an elderly patient with significant existing ailments and an intervening surgery and additional injury in the form of a second fall. Nothing in the cited evidence shows that RNs and LPNs in Kansas are ordinarily or even occasionally tasked with making such complex medical diagnoses. The court accordingly excludes any opinion testimony by Pankratz or Diggs as to causation.

Pinnacle also argues that the amended certificate of death cited by plaintiffs is insufficient, noting that proof of causation ordinarily requires expert medical testimony. And it is true many Kansas decisions so held — "Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation." Bacon v. Mercy Hosp. of Ft. Scott, Kan., 243 Kan. 303, 307-08, 756 P.3d 416, 756 P.2d 416 (1988).7

But each of the cases cited by Pinnacle involve the distinction between expert testimony and lay witness testimony; there is no indication that the courts were attempting to create a rule that expert opinion evidence may only be presented by live witness testimony. And there are indications to the contrary. In one of the cases in the Bacon line of authority, Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 510 P.2d 190, 195 (1973), the court repeated the general rule and stressed that the plaintiff had "introduced no expert testimony" on the subject of the standard of care, but had "introduc[ed] portions of three medical texts identified by a physician witness as reliable authorities." The court summarized the contents of those texts, and concluded that in fact "[n]one of these tended to show that Dr. Stone was negligent." Id. But if the defendant's theory were true — that only live witness testimony counts — it would not have needed to do so.

More importantly, Kansas courts have given weight to the medical opinions contained in death certificates issued under statutory authority. In Kansas, coroners are public officials licensed to practice medicine and surgery. K.S.A. 22a-226. The coroner is charged to "make inquiries concerning the cause of death" in a wide variety of cases,8 K.S.A. 22a-232, and reviews both medical records and the records of law enforcement, may investigate the scene of the death, perform an inquest, and, of course, conduct an autopsy. K.S.A. 22a-231. Certified coroner records "shall be received in any court or administrative body in the state as competent evidence of the matters and facts therein contained." K.S.A. 22a-235. And, under K.S.A. 65-2416(a), timely certificates of death "shall be prima facie evidence of the facts therein stated."9

In Berthelson v. Developmental Serv. of N.W. Kan., 2006 WL 3774332, *6 (Kan. Ct. App. Dec. 22, 2006), the court concluded that "the plaintiffs' failure to proffer expert testimony in that regard was fatal to their wrongful death action" because the issue of causation was too complex for an ordinary person to understand. The court rejected plaintiffs' reliance on a death certificate — not, as Pinnacle would have it, because live testimony is required — but because in that case the certificate was ambiguous, as

Id.

In Anderson v. K & E Health Mgmt., 2006 WL 851471 (Kan. Ct. App. March 31, 2006), the trial court had awarded summary judgment in a wrongful death due to a nursing home fall because the plaintiff had not offered expert testimony of causation. The court of appeals reversed, finding an issue of fact on the issue of causation existed.

*5. The court concluded that because there were "conflicting medical opinions" summary judgment should not have issued. Id.

This court addressed the issue indirectly in Hammers v. Douglas County, 2016 WL 6804905 (D. Kan. Nov. 16, 2016). The plaintiffs in Hammers alleged the decedent died as the result of Alcohol Withdrawal Syndrome while held in the county jail, and in its order the court focused primarily on propriety of the plaintiffs' designation of rebuttal experts on the issue of causation. But the court noted that for their case-in-chief, plaintiffs "relied on the death certificate to initially establish Hammer's cause of death ... as `sudden death due to seizure disorder probably related to acute ethanol withdrawal due to chronic ethanolism.'" Id. at *2. The court ultimately held that, once defendants challenged this conclusion, the plaintiffs could properly designate additional rebuttal experts. But the court also indicated it had no problem with the initial reliance on the coroner's report:

Id. at *3.

The court concludes that, beyond the standard of care, Pankratz and Diggs have not been shown to offer reliable medical expert evidence as to the cause of death of Dorothy Funk. However, the court finds that the amended death certificate creates a trial issue as to the cause of death.

IT IS ACCORDINGLY ORDERED this day of November, 2018, that defendant's Motion for Summary Judgment (Dkt. 89) is hereby granted in part and denied in part as provided herein.