Nursing Home Litigation


than twenty percent of their professional time doing activities which directly involve personal injury claims in the certificate of merit. Md. Code Ann. Cts. & Jud Proc. §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. Code Ann. Cts. & Jud Proc. §3-2A-04(b)(3)(i); Walzer v. Osborne, 395 Md. 563, 911 A.2d 427 (2006). Te amount of detail that goes into this report is not laid out in as exact a manner as in the federal rules. Tere are some notable differences. For example, the testifying history of the expert 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, supra or Caroll v. Konits, 400 Md. 167, 929 A.2d 19 (2007). Md. Code Ann. Cts. & Jud Proc. §3-2A-02(c) 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. Te expert must have had clinical experience, or taught medicine, in the defendant’s field of healthcare 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. Md. Code Ann. Cts. & Jud Proc. §3-2A-02(c). In nursing home cases, this usually means that your expert will be board certified in geriatric medicine and have had experience working in a long term care facility. Even when the victim is not elderly, the issues that typically 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 in the standard of care have often been committed by nurses and certified nursing assistants (CNAs) as well as 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


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at a facility were sufficient, or whether administrative protocols were appropriate or being followed. Your expert will likely be deposed and 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. Tis 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 should be expected. In addition, there is a new trend by some defendants to


focus on your expert’s knowledge of the defendant facility. If using this tactic, defense counsel will likely ask your expert, at the deposition and/or trial, to render testimony comparing the defendant facility to the expert’s own practice experience. Tese 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


Trial Reporter / Fall 2011 29


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