Depositions
inevitably will involve some issue of sub-standard nursing care and thus a nursing expert usually is needed to establish nursing negligence, although a physician may serve this purpose. Both the physician expert and nurse expert should have academic credentials and experience in geriatrics. For example, many illnesses such as heart disease and diabetes can present in elderly patients with signs and symptoms that differ from those exhibited by younger persons. It also is imperative that any physician and nurse experts have experience in a long-term care setting. Nurse experts can address the standard of care for registered professional nurses, licensed practical or vocational nurses, and certified nurse assistants. Most physicians providing nursing home care often are off- site in office based practices. Tese physicians rely on nursing staff to inform them of significant changes in the resident’s condition as well as suggestions for changes in medication or treatment orders. Often this information is communicated by telephone and the medical orders will reflect this and will be written as telephone verbal orders. As such, many decisions on courses of treatment depend on the interrelationship between medical and nursing care. Accordingly, the physician will be able to comment on not only the standard of care for physicians, but with respect to certified nurse practitioners and nursing staff as well. Deposing the expert is important as it sets the table for
your themes at trial. Tere are many ways to depose the expert and most attorneys have different approaches that work in non-nursing home settings. One of the most important things that will occur in deposing an expert in a nursing home case is having them agree that the standard of care is in fact set out in the federal and state regulations. Quite often you will be met with disagreements to this and it is important to be very specific with the expert as to the basis for their opinion. If in fact the expert states that the federal regulations and state regulations do not represent the standard of care, their opinion will be discounted. Prior to taking the expert's deposition, it is suggested
that you have a separate notebook that contains all of the regulations, statutes and cases interpreting the statute so that you will then be able to have everything at your fingertips. Questions then may be asked of the expert specifically as to those issues reflecting upon the standard of care. It is also encouraged that you gather as much material
as possible prior to deposing the expert. Tere are numerous ways for attorneys to obtain information about the expert whether it be simply going on the internet or obtaining prior depositions and speaking with other attorneys who have deposed these experts. It is essential to understand and know the expert's mindset prior to taking or defending the deposition.
When taking expert depositions, it is helpful to separate
the deposition into two distinct phases -- the concept phase and the case-specific phase. At the outset, find out the experts opinions on nursing homes, how they are to be conducted and what the standard of care is in general -- then you can begin to limit your questions to the specific case at hand. Quite often you will find the opinions of experts regarding nursing homes in general do not comport with their opinion in the individual cases.
Biography Gregory L. Lockwood is a partner at the law firm of
Treanor Pope & Hughes where concentrates in long-term care, medical malpractice and person injury litigation. He is on the MAJ Board of Governors, and currently serves as co-chair of the Mentor/Mentee Program. He is a 1990 graduate of the University of Maryland School of Law, holds a Master’s of Arts degree from the University of Maryland at College Park, and is a 1985 graduate of St. Mary’s College of Maryland.
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