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Nursing Home Litigation


Nursing Home Experts


Federal versus State Cases Annie B. Hirsch T


he following article shall provide some insight as to the use of experts in nursing home cases in both the Maryland state and federal courts. However, before


proceeding I must first note that 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. Tis allows them to avoid the practicalities of the federal court litigation including: stricter pleading standards, rigid scheduling orders, and a certain ease with which a case is dismissed over minor technicalities. Tis is not to say that nursing home cases are never brought in federal court; they are and these occasions are discussed below. However, the fact is that 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 is whether there is a difference between a nursing home negligence claim and a typical, run of the mill, medical malpractice claim? Te answer is, not really. Te 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. Terefore, the procedural and evidentiary rules -- including the rendering of expert testimony -- are the same as those utilized in a medical malpractice claim in both the federal and state courts. In both federal and state courts, you will need an expert to


support the claims of wrongdoing against the nursing home. Tat expert can be any number of experienced professionals including: a medical doctor who is board certified in geriatric medicine, a registered nurse (RN) experienced in nursing


home care, or a nursing home administrator. Regardless of the specialty, your expert must be able to testify that the negligent acts or omissions committed by the facility or its agents, servants or employees were the proximate cause of the injuries alleged. Exactly how your expert testifies will vary depending upon whether you are in federal or state court. However, no matter where your claim is heard, expert testimony is necessary in order to successfully pursue a claim against a nursing home. Note: Tis 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 practitioners know, a claim in federal court


must (1) involve a question of federal law, (2) involve diversity jurisdiction, or (3) involve the federal government as the defendant. See 28 U.S.C. § 1331, 1332 1346. In nursing home cases, the first is rarely, if ever, the issue. Te second is the most common scenario which results in a nursing home claim being brought in federal court. Usually this occurs where either where 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 the family of a deceased victim lives in a state other than where the nursing facility resides and the


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