Trial Reporter Issue - Fall 2011

Nursing Home Experts – Federal versus State Cases By: Annie Hirsch

The following article is meant to provide some insight as to the use of experts in nursing home cases in both the Maryland State and Federal court systems.  However, before expounding upon the use of experts in these two legal arenas, I must acknowledge one notable practicality in this discussion:  Nursing home cases are rarely filed in Federal Court.  In part this is due to the fact there is often no basis to bring the claim in Federal Court.  But, it is also because many attorneys in Maryland simply prefer to litigate these matters in State Court. This allows them to avoid the overly rigid confines of the Federal Court system which includes: more elaborate pleading standards, rigid scheduling orders, and a certain ease with which a case is dismissed over minor technicalities.  This is not to say that nursing home cases are never brought in Federal court, they are and these occasions are elaborated upon below.  However, the fact of the matter is, most attorneys will appropriately file their nursing home negligence cases in State Court, and that is where most will be heard.

I.          Nursing Home Claims v. Medical Malpractice Claims – Is there a difference

For those of you who have not handled nursing home negligence claims in the past, the first question which probably comes to mind is: is there a difference between a nursing home negligence claim and a normal, run of the mill, medical malpractice claim?  And the answer is, not really.  The majority of nursing home cases involve decubitus ulcers, slip and fall related injuries, malnutrition, over medicating, under medicating, sepsis, elopement related injuries, and injuries related to the assault of a resident by a staff member.  All of these injuries have to do with the lack of care (or improper care) rendered by a medical facility (the nursing home) to its’ residents.  Therefore, the procedural and evidentiary rules (including the rendering of expert testimony) which must be adhered to are the same as those utilized in a medical malpractice claim at both the Federal and State levels.

Whether filed at the Federal or State level, you will need an expert to support the claims of wrongdoing against the nursing home.  Whether that expert is a medical doctor who is board certified in geriatric medicine, a registered nurse (RN) experienced in nursing home care, or a nursing home administrator; your expert  must be able to testify to the negligent acts (or omissions) committed by the facility (or its agents, servants or employees) and that those wrongs were the proximate cause of the injuries alleged.  The manner in which your expert testimony is rendered will be dictated by whether you are in Federal or State Court.  However, irrespective of where your claim is being heard, expert testimony is necessary in order to successfully pursue a claim against a nursing home.  Note: This is not to say that a claim cannot be settled prior to retaining an expert where the negligence is obvious and glaring and the injuries are undisputed.  However, to proceed with litigation, an expert will be the lifeblood of your client’s claim and the case can easily live or die by their testimony.

II.        Nursing Home Claims in Federal Court: When are they brought and how is expert testimony handled?

As most of you hopefully know by now, the way to bring a claim in Federal Court is by having the claim: 1. Involve a question of Federal law; 2. Involve diversity jurisdiction; or 3. Involve the Federal Government as the Defendant.  In nursing home cases, the first is rarely, if ever, the issue.  The second is the most common scenario which results in a nursing home claim being brought in Federal Court.  Usually this occurs where either 1. The injured party has moved to another state after the negligent care was rendered and subsequently decides to bring a suit against the facility; or 2. The family of a deceased victim lives in a state other than where the nursing facility resides and the family decides to file suit against the nursing home.  The third scenario, where the Federal Government is the Defendant, is also infrequent as there are not very many federally owned nursing home facilities in Maryland.  Simply put, fewer Federal-owned facilities equals fewer claims.  The following section will touch on both those less common instances where both Federal procedural rules and Federal substantive laws are implemented (where there is a question of federal law); and the more common cases where Federal rules of procedure are followed while being coupled with the substantive laws of Maryland (where there is diversity jurisdiction or a Federal Defendant.)

            A.  Federal Procedural Rules: Designating an Expert in Federal Court

If you are in Federal Court then, no matter what the basis, you must follow the Federal Rules of Civil Procedure.  Under these rules, a party must disclose, to all other parties, the identity of any expert witness it may use at trial.  Under Federal law there are three designations of expert witnesses:  1. Retained Experts; 2. Non-Retained Experts; and 3. Hybrid Experts.  Depending on which type of expert(s) you utilize in your case, this will dictate the documentation and manner in which your expert is disclosed, the amount of details you must disclose, and when you must disclose them.

The most commonly used expert is a “retained expert.”  This is an individual who has been retained or specially employed by a party via contract or payment for the purpose of evaluating the claim and subsequently rendering expert opinion testimony on the claim.  Payment is not required to be considered a retained expert, just that a party arranged for the expert to render testimony to further his case, and that testimony does not fall within the confines of eyewitness testimony.  This testimony will be based upon their review of any and all materials provided and their professional experience and knowledge about the technical issues in question.  The opinions can vary from testimony regarding breaches in the standard of care by the nursing home facility, to causation, to damages, or all of the above.  When an expert witness has been retained by a party, or if their professional duties regularly involve rendering expert testimony, then they must supply a detailed written report which will be disclosed to all other parties and filed with the court.  The report must include the following:  1. A complete statement of all opinions the witness will express and the basis and reasons for them; 2. The facts or data considered by the witness in forming their opinions; 3. Any exhibits that will be used to summarize or support them; 4. The witness’ qualifications (including a list of all publications authored in the last 10 years); 5. A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and 6. A statement of the compensation they will be paid for their study and testimony in the case.  USCS 26(a)(2)(B)(i) – (vi).

As will be discussed in greater detail later on, the level of detail required by the Federal rules in a “retained expert” report far exceeds that which is required by the Maryland rules in similar cases.

The second type of expert that can be used in a nursing home case in Federal Court is a “non-retained expert.”  This expert is not contracted, retained, or paid for his/her services.  This expert is called specifically to render “expert testimony” based on his/her eyewitness observations and thought processes within the confines of their expertise.  An example of this kind of non-retained expert would be a treating physician.  A treating physician can be called as an expert witness without filing a detailed report as enumerated above so long as his or her testimony is restricted to his/her eyewitness observations and thought processes concerning the victim during the course of treatment and testimony regarding the actual treatment they rendered.  Anything beyond this scope creates a scenario which may result in a hybrid witness or even an inadvertently retained witness, which can then require different reports and disclosures.  This expert testimony is essentially used to factually bolster the testimony of the retained expert.  The Federal rules elaborate simpler requirements for an expert disclosure where the expert has not been retained.  This includes the identification of the subject matter which he/she will present evidence and a general summary of their facts and opinions.  USCS 26(a)(2)(C).

The third type of expert that can be used in a nursing home case in Federal Court is a “hybrid expert.”  This expert must be disclosed pursuant to 26(a)(2)(A), but the hybrid expert is not subject to a 26(a)(2)(B) report and disclosure requirement.  The most common example of a hybrid expert is a treating physician whose testimony goes beyond eyewitness observations and includes an opinion such as causation.  Treating physicians will often include opinions regarding causation when determining their care in the ordinary course of treatment.  However, it must be noted that an expert can have some opinions which are hybrid and then other opinions which would be subject to a 26(a)(2)(B) disclosure.  The main differentiation is not who the expert is, but what the expert used in forming his/her opinion.  If the opinion is solely based on his/her treatment, then the expert is not subjected to the more elaborate 26(a)(2)(B) reporting requirement.  However, if he/she forms opinions and renders testimony that is based on materials which were obtained outside the course of their regular practice and treatment, then that expert can be considered a retained expert.  This is because they are now rendering an opinion that is advancing the case of the party on whose behalf they are testifying.  Sullivan v Glock, Inc, 175 F.R.D. 497 (1997)  Hybrid experts can and should be disclosed, listed in answers to interrogatories and they can be deposed.  But generally, if they are a true hybrid expert, they are not subject to the 26(a)(2)(B) reporting requirements.  Be careful when making the determination as to what category of expert you are using in your Federal court case.  Make sure that you are well acquainted with not just the physician’s opinions, but the source of those opinions, so that you can fully preserve his/her testimony.

The timing of all expert disclosures and report filings are almost always strictly set forth in the court’s scheduling order.  Failure to disclose and file in a timely manner, in the absence of receiving leave of the court, can result in the dismissal of a claim or the inability to offer the expert’s testimony at trial.  This inability can de facto render that party unable to pursue/defend the claim.  In the rare instance of the absence of a court scheduling order, the expert disclosure and report must be submitted at least ninety (90) days before the date set for trial.  USCS 26(a)(1)(C), USCS 26(a)(1)(D).  Should the ninety (90) day deadline need to be applied, please remember, neither party can depose an expert witness until the report is filed.  USCS 26(b)(4)(A).  So it behooves both parties to file their respective reports prior to the ninety (90) day deadline (where there is no court order), in order to allow for an appropriate amount of time to complete discovery.  So to summarize, the rule of thumb to follow when in Federal Court on a nursing home case (or any case for that matter) is use due diligence, review and re-review the scheduling order, and make sure to identify and comply with every requirement listed in the rules regarding the expert disclosure and the expert report.

Finally, if the expert testimony is solely being provided to rebut or contradict evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), then the designation needs to be made thirty (30) days after the other party’s expert disclosure.    Any and all disclosures must be supplemented by both parties when appropriate.

          B.        Qualifying Expert Testimony in Federal Nursing Home Cases

When in Federal Court, no matter what the basis, your expert must be qualified and accepted under the Federal Rules of Civil Procedure.  This means applying USCS Rule 702 which has been recently amended to reflect the noted case, Daubert v Merrell Dow Pharmaceuticals, Inc 509 US 579 (1993).  Pursuant to the Federal Rule of Evidence 702, a witness who is qualified as an expert by knowledge, skill experience, training or education may testify in the form of an opinion if:  a. The expert’s scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence to determine a fact in issue; b. The testimony is based on sufficient facts or data; c. The testimony is the product of reliable principles and methods; and d. The expert has reliably applied the principles and methods to the facts of the case.  USCS Fed Rul Evid R 702.

The question of whether or not an expert is needed is undisputed in a case involving allegations of negligent medical care.  And while the above might be a difficult burden to meet for some medical malpractice or product liability cases, it should not be an overwhelming obstacle in a nursing home case.  As previously discussed, the type of medicine usually being examined in nursing home cases would not typically be described as esoteric or technologically obscure.  Nursing home cases tend to involve allegations regarding a healthcare provider’s lack of supervision of the resident, lack of properly administering a physician’s order (such as failing to turn and reposition a resident, failing to provide appropriate nutrition, failing to administer medication, administering too much medication, etc), or a general failure of the physician to issue the appropriate orders.

Qualifying an expert’s testimony in a nursing home case will be less about whether or not the standards of care alleged are accepted forms of medicine and more focused on what evidence the expert can provide that demonstrates that these breaches did in fact occur and, furthermore, demonstrating that these breaches caused the injuries and/or death.  The Federal Courts place an especially high value on reliable publications and studies, so anything that can be pulled by your expert that can support his/her conclusions, should be.  Make sure your expert has thoroughly reviewed his/her materials and that said materials are appropriately disclosed in a timely manner during the litigation process.  One can rarely have too much supporting data for an expert in a Federal case, and in the alternative, a shortage of supporting data could jeopardize your expert’s testimony.

In addition to studies and publications, violations of the Nursing Home Reform Act or “OBRA 87” can be woven into an expert’s testimony to support his/her opinions as to what composes the standards of care that have been breached.  OBRA 87’ created a national minimum set of standards of care and rights for people living in certified nursing facilities.  The legislation focuses on the rights of the residents to be safe, to be free of unnecessary chemical or physical restraints, to perform daily living activities (such as eating, bathing, walking) absent medical reasons, to safely maintain or bank personal funds, to stay in the home absent non-payment or the presentation of a danger to themselves or others, opportunities inside and outside the home for the mentally handicapped, uniform standards for homes receiving payment from Medicare and Medicaid, and the provision of various remedies should the nursing home fail to adhere to any of the requirements.

The regulations set forth in OBRA 87’ are a baseline set of requirements, not a ceiling for nursing homes to aspire to. These regulations have affected the manner in which inspectors investigate complaints and monitor facilities.  Your expert’s testimony cannot solely rest on an inspector’s violation report or his own observation of violations of these regulations through his review of the records.  However, OBRA 87’ (and any resulting reports) are additional pieces of documentation and support which can be used to bolster your case and your expert’s opinions before the court.

            C.        The Application of Substantive Law and Your Expert in Federal Court Nursing Home Claims

As it pertains to the substance of the expert opinion rendered in a nursing home claim in Federal Court, as stated, the majority of the time Maryland substantive law will be applied.  Whether it be diversity jurisdiction or the Federal Government as a Defendant, if the claim is a state tort/medical malpractice claim, substantive Maryland law is applied throughout the case, including the rendering of substantive expert testimony.  As discussed, an independent federal question of law is uncommon in nursing home claims as most Federal courts have held that the violation of the Federal Regulations for Nursing Homes, including OBRA 87, do not give rise to an independent cause of action.  However, this is not to say that you might not find yourself in a court that does permit this independent action.  This is also not to say that you might not end up handling a claim that involves any number of federal questions including: a fraudulent Medicare billing scheme, or the denial of benefits by a facility that handles ERISA regulated employee benefit plans, or some other federal question which could and has been raised in a Nursing Home claim in Federal Court.  But with each of these specific claims comes a very specific statute accompanying it.  As discussed, it most certainly does not constitute the majority of nursing home claims.  For this reason the use of experts in cases with these Federal questions of law will not be examined beyond stating that: if your claim is a Federal claim, then whatever statute you have brought your claim under will be the substantive rule that governs your claim.  If an expert is necessary regarding the mismanaged care, or the nursing home billing practices, or benefits and claims review, or some other issue; the above elaborated procedural process would still be applied and the substance of his/her testimony would be dictated by the allegedly violated Federal Statute.

             D.  Disclosure of Expert Material and Confidential Work Product in Federal Court Nursing Home Claims

Anyone who is in Federal Court for any reason (including nursing home claims) must note that Federal Rule 26(a)(2)(B)(ii) was amended in 2010.  This amendment limited the disclosure obligation of a party regarding communications with his expert to just those consisting of “facts or data” considered by the expert.  This amendment was meant to restrict discovery of litigation theories or impressions of counsel shared with the testifying expert.  At this time, only “material of a factual nature” is discoverable by the opposition.  In addition, Rules 26(b)(4)(B) and (C) were added to protect work product drafts of expert reports and expert communications between the expert and counsel.  However, it is still permissible to seek discovery regarding the formulation of the expert’s opinions, the development of the opinions, the factual foundation of the opinions, and the basis of the opinions.  This allows any testing methods, charts, references, or other methods used by the expert (including communications with individuals other than counsel) to be considered unprotected, discoverable evidence.

There are several limitations to these discovery protections.  Topics which remain discoverable include:  1. the rate of the expert’s compensation, 2. any and all facts provided by the attorney that directly relate to forming the basis of the expert’s opinions, and 3. any assumptions provided by the attorney and relied upon by the expert in forming his or her opinions.  These limitations are very narrow.  They do not apply to hypothetical scenarios discussed between the expert and counsel.  While assumptions provided by counsel to the expert remain discoverable, the degree they affect the expert’s opinions are not.  In general, the Federal court has created a level of protection for experts and attorneys which permits a certain amount of freedom in communication to lay the groundwork of a case.  The applicable exceptions are narrow and well defined.  As always, an opposing party can attempt to file a motion with the court to go beyond these boundaries, but they must show good cause and they will have a high burden to meet to get the court to ignore these newly defined boundaries.

III.       Expert Testimony in a Nursing Home Case in Maryland State Court

        A.   Qualifying your expert

Most of us will find ourselves in Maryland State Circuit Court if we are litigating a nursing home claim.  Because most nursing home claims (as do most claims against assisted living facilities) fall under the umbrella of medical malpractice claims, you will have to file the claim first with the Healthcare Alternative Dispute Resolutions Office (HADRO).  This also applies to claims against Assisted Living Facilities, as well as nursing homes.  If you wish to try your case in circuit court, pursuant to 3-2A-04 of the Maryland code, you must file an expert certificate of merit and expert report, along with a waiver of arbitration.  Like medical malpractice claims, a minority of cases are heard and resolved at the HADRO arbitration level.  However, the majority of nursing home claims are waived through to circuit court.  As such, the Plaintiff must have an expert sign a certificate of merit which attests to the fact that the standard of care has been breached and that said departure is the proximate cause of the alleged injuries to a reasonable degree of medical probability (51% or more.)  The expert must also attest to spending less than twenty percent of their professional time doing activities which directly involve personal injury claims in the certificate of merit.  Md. Ann. Code. 3-2A-04(b).

In addition to the certificate of merit, the Plaintiff must file a report that has been written and signed by the expert, which details the breaches in the standards of care and the proximate causation which has been testified to in the certificate of merit.  Md. Ann. Code 3-2A-04(b)(3)(i) and Walzer v Osborne, 395 Md. 563, 911 A.2d 427 (2006).   The amount of detail that goes into this report is not laid out in as exact a manner as in the Federal Rules.  The expert’s expert testifying history is not required in the report, nor is his rate of compensation.  However, suffice it to say, there should be enough detail in the report that the defense can look at it and understand the basis of the claim.  It should also be evident that your expert is professionally qualified to render such an opinion.  Attaching your expert’s CV is just one method for demonstrating his/her professional qualifications as it pertains to the case at hand.  For more information on the expert’s certificate of merit and the report, see Walzer v Osborne or Caroll v Konits 400 Md. 167; 929 A.2d 19 (2007)

3-2A-02(c) of the Maryland code discusses the qualifications necessary for an expert to sign a certificate of merit and file a report in a medical liability claim as to the Defendant’s compliance or deviation from the applicable standards of care.  The expert must have had clinical experience, or taught medicine, in the Defendant’s field of healthcare.  This experience must have been within five years of the date of the alleged act or omission.  If the Defendant is board certified, the testifying expert must be board certified in the same specialty.  3-2A-02(c) Md. Ann. Code.  In nursing home cases, this usually means that your expert will be board certified in geriatric medicine and have had experience in working in a long term care facility.  Please note that even when the victim is not elderly, typically the issues that arise in nursing home claims are those that are dealt with in geriatric medicine because of the lack of mobility and the long term nature of the care.  So don’t let the age of the victim affect your selection of an expert.  Focus on the healthcare provider and the type of care that was rendered.

In addition, while sometimes the Defendant is a physician, often the Defendant in nursing home claims is the nursing facility itself.  Here, the deviations have been committed by nurses and certified nursing assistants (CNAs) and various other staff members of the nursing facility.  As such, a physician as described above is sufficient.  However, you might also want to consider retaining a nursing home administrator expert, or a registered nurse (RN), both of whom can also prove to be valuable assets, especially when there is a question as to whether or not the staffing or supplies at a facility were sufficient, or whether administrative protocols were being followed.

Once you are in Circuit Court, your expert will likely be deposed and will then subsequently testify at trial.  In deposition and during trial testimony your expert will be asked many questions about his/her experience in the field of medicine that is in question.  This is to ensure that the expert is qualified and capable of rendering an opinion on the medical issues in question.  Questions regarding their educational background, internships, fellowships, studies, publications, and exposure to similar cases in the course of their practice will all be focused on.

In addition, there has been a new (and less than savory) trend by some Defendants to focus on your expert’s knowledge of the Defendant facility.  They ask your expert to render testimony comparing the Defendant facility to the expert’s own practice experience.  These Defendants are doing this in an attempt to disqualify your expert based on a theory that in order for a Plaintiff’s expert to show sufficient knowledge as to what the applicable standard of care is, he/she must be able to testify regarding all of the details of the Defendant’s facility and compare said details with his/her own past work environments.  In addition to attacking his/her ability to be qualified, they will also attempt to utilize this argument in attacking the expert’s substantive testimony and the Plaintiff’s prima facie case (as discussed below.)  This issue has been written about by several members of MAJ.  Rather than re-hashing all of the theories and expounding upon that which you have already heard, I will just say that it is better to avoid this question all together and have your nursing home expert well versed in the Defendant facility.  Ensure that your expert is able to speak at length about the various facilities he/she has worked at and the similarities between said locales and the Defendant.  This will be used in the deposition and during the direct qualification process at trial.

To ensure your expert has any and all materials that could help him/her form his/her opinions, utilize your request for production of documents.  Ask for the Defendant nursing home’s manuals, as well as any and all documents which identify the Defendant’s policies and procedures.  Such policies and procedures can include (but are not limited to): requesting equipment protocols, nursing station setup and nursing protocols, protocols dealing with creating and following physician orders, staffing and scheduling procedures, protocols regarding the number of beds, number of physicians, number of CNA’s and RNs, fall prevention protocols, skin care protocols, layouts of the floor(s) where the Plaintiff resided, etc.  Anything that would or could be a documented policy that relates to your client’s claim should be requested.  In nursing home cases, often a lack of care is due to a lack of staff or a lack of communication.  Therefore, focusing on staffing protocols and the information regarding the staffing schedule during your client’s admission can also be very important.  In addition, requesting all policies and procedures on documentation, physician orders and relaying requests can be useful.  Documentation of care that was never rendered, or a complete failure to document the care, can also prove to be central to your case, so requesting any and all care documentation protocol is often necessary.

Once you have received everything, sort through that which is relevant to your claim and then provide all of these documents to your expert prior to his/her deposition.  In addition, pull up the Defendant facility’s website where you will often find a description of the size and available facilities at the nursing home.  Have your expert ready to discuss each facility that he/she has worked at and why that facility is similar to the Defendant (as discussed above.)  Then have your expert go through each relevant policy and show how that policy is deficient in it of itself, or how it was not followed in this case.  The more details your nursing home expert has, the easier it will be for you to sail through this part of the process.  By identifying and addressing these issues thoroughly at deposition, you will demonstrate that your expert has been made aware of, and can handle, this issue at trial.

When you get to trial, make sure to re-address these issues when qualifying your expert (in addition to the expert’s education and experience) in a more concise, but still precise manner.  Make sure you show the court and the Defendant that your expert has the education, experience, medical knowledge, as well as knowledge about the Defendant, to effectively testify in this case.  This way the Defendant cannot even raise the issue that your expert is not qualified to testify as to the Defendant’s deficiencies on the basis of a lack of knowledge regarding the community where the Defendant is located.  While the Plaintiff has no duty to address the Defendant’s community (unless of course it is germane to the Plaintiff’s claim), the easiest tactic is just to avoid the argument altogether.  Prepare your expert and have ready to respond to the opposition at the deposition and to you during the qualification process at trial.

                 B.    Disclosure of Expert Material and Confidential Work Product in Maryland State Court Nursing Home Claims

As seen above, there are numerous rules and restrictions when you are in federal court, all of which are meant to protect the communication between an attorney and an expert while developing legal theories and forming the foundation of a case.  In Maryland, everything provided by counsel to an expert witness is presumed discoverable evidence.  There are no such protections, as found in the Federal Rules, for these types of cases in Maryland.  As such, to avoid any problems keep all communications between you and your expert oral, or if written, completely generic.  This open season on communications between an attorney and an expert spans from letters to emails to notes.  Anything that is written down and exchanged is fair game.  The only thing you should include with medical records or discovery mailings is a cover letter stating what is enclosed.  The best way to cover all of your bases is not to open yourself up to the liability in the first place.

                 C.    Your Nursing Home Expert’s Substantive Testimony

If you are in a Maryland Circuit Court, or if you are in Federal court because of diversity jurisdiction, or suing a Federal Defendant; your expert’s substantive testimony will have to comply with the Maryland rules regarding expert testimony and proving your prima facie case.  In Maryland, the expert must testify to: what the applicable standard of care was, how said standards have been violated, and that said violation caused the harm complained of, to a reasonable degree of medical probability, fifty one percent or more.  Weimer v. Hetrick, 309 Md. 536, 553, 525 A.2d 643, 651 (1987).  As set forth by the Maryland Court of Appeals in Shilkret v. The Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975)and as set forth by the Maryland legislature in 3-2A-02 of the Maryland Code, and as reflected by the Maryland pattern jury instruction 27:1:  A healthcare provider is negligent if the healthcare provider does not use that degree of care and skill which a reasonably competent health care provider, engaged in a similar practice and acting in similar circumstances.  MPJI-CV 27:1.  Incorporating this language into your expert’s testimony, along with the preceding language regarding the standards, the breach of said standards, and causation to a reasonable degree of medical probability will help your expert solidify your case before a jury.

If the location or community of the Defendant facility is germane to the defense or to the Plaintiff’s case, then this is one “circumstance” which either side can expound upon.  However, it is not part of the Plaintiff’s prima facie case and it is not required testimony.  But, as discussed in the above section, offering testimony regarding their past experience and the Defendant’s community, during the qualification of your expert will help avoid another pointless attack by the Defendant.  It is not the Plaintiff’s burden to meet, but why take the chance.  Put the information out there and avoid the argument and the motion for directed verdict at the end of your case.

In addition to referencing the injured party’s medical records and any relevant studies or publications, your expert can also weave into his/her testimony any violations of COMAR 10.07.02, which deals with state nursing home regulations.  While these violations are not evidence of negligence per se, they can be used to help bolster the expert’s opinions and show a basis for his/her assertion as to what the standard of care is in this Maryland nursing home facility.  As discussed in the above Federal section, the same can be said for COMAR as OBRA regulations, if applicable to your claim.

Conclusion

Whether you are in Federal Court or in State Court, more often than not, your nursing home case is no different than any other medical malpractice claim as it pertains to the qualification, use, and testimony of your expert(s).  They are a necessary part of the litigation process and, like in any other case, they must be well prepared.  While the science in these cases is not overly-complex, you should ensure that your expert can detail the evolution of a decubitus ulcer, or demonstrate that the repeated falls were not unavoidable, or that the provision of nutrition was less than adequate.  But above all else, you must ensure that the expert can show a jury that the deviations by the Defendant caused the victim’s injuries to a reasonable degree of medical probability.  These are not the most complex cases, but the volume of records, the co-morbidities and the age of most of the victims, leaves many attorneys unwilling to handle nursing home claims.  However, through solid preparation and use of a good expert, nursing home cases can be successful and a jury can understand that there is intrinsic value to life, even for someone who may have health problems or who is elderly.  More often than not, injuries suffered in nursing homes can be avoided.  A good expert can show a jury just how many of these cases are not the inevitable result of a person’s ailments, but the inevitable outcome of the commission of repeated negligent acts by these caretakers.

(MAJ Trial Reporter, Fall 2011)