Nursing Home Litigation
an expert, including covers letters, emails and handwritten notes. Anything that is written down and exchanged is fair game. Te only thing you should include with medical records or discovery mailings is a cover letter stating what is enclosed.
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 those standards were violated, and how that violation(s) 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). 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. See Shilkret v. Te Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975); see also Md. Code Ann. Cts. & Jud Proc. §3-2A-02; Maryland Pattern Jury Instruction 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. 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 the Code of Maryland Regulations 10.07.02 (COMAR), 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 regarding the federal rules, the same can be said for COMAR as OBRA regulations, if applicable to your claim.
D. 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). Tey are a necessary part of the litigation process and, as 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 discuss (in detail) the pertinent medical issues involved, such as: the evolution of a decubitus ulcer, demonstrating that the repeated falls were not unavoidable, or that the provision
of nutrition was less than adequate. 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. Tese 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 negligent acts by the plaintiff’s caretakers.
Biography Annie B. Hirsch, Te Law Offices of Annie B. Hirsch
LLC, has extensive experience in the field of medical malpractice, nursing home and personal injury litigation. In February 2009, Ms. Hirsch opened Te Law Offices of Annie B. Hirsch, LLC where she currently represents the severely injured, and their families, throughout the State of Maryland. Ms. Hirsch has successfully handled complex medical malpractice cases at both the circuit court and appellate court levels. She received her JD from Te University of Maryland School of Law. While there she focused her studies and graduated with a certificate in healthcare law. Ms. Hirsch has spent her career on the Hill, and in the courtroom, acting as an advocate on behalf of injured victims and their families. She has had the honor of working for the late Senator Edward M. Kennedy on the Healthcare Equality and Accountability Act, as well as representing families on behalf of Te Coalition to End Childhood Lead Poisoning. Ms. Hirsch is a member of the Maryland Association for Justice (MAJ) and the American Association for Justice (AAJ). She can be reached at abh@
abhirschlaw.com . Website:
www.abhirschlaw.com
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