Nursing Home Litigation
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the plaintiff ’s prima facie case (as discussed below). I believe 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 those and the defendant facility. Tis information will then be readily available to your expert when being deposed 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): 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. Terefore, focusing on staffing protocols and the information regarding the staffing schedule during your client’s admission
30 Trial Reporter / Fall 2011
can also be very important. In addition, documentation of care that was never rendered or a failure to document care can be critical to your case, so requesting all policies and procedures on documentation, physician orders and relaying requests can be useful.
Once you have received all requested discovery, 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 resources (equipment/supplies) of 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 facility. Ten have your expert go through each relevant policy and show how that policy is deficient in and of itself, or how it was not followed in this case. Te more details your nursing home expert has, the easier it will be for you to succeed in 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 and are qualifying your expert, make
sure to re-address these issues -- in addition to the expert’s education and experience -- in a concise but exact manner. Make sure you show the court, jury 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. Tis 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 best tactic is just to avoid the argument altogether. Prepare your expert to respond to this tactic at the deposition and make sure to highlight the expert’s knowledge of the defendant facility 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. Tere are no such protections, as found in the federal rules, for cases in Maryland. In Maryland, everything provided by counsel to an expert witness is presumably discoverable evidence. As such, to avoid any problems, keep all communications between you and your expert oral, or if written, completely generic. is open season on communications between an attorney and
It
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