Nursing Home Litigation
question which could and has been raised in a nursing home claim in federal court. But with each of these specific claims comes a very specific statute accompanying it. As discussed, these do not constitute the majority of nursing home claims. For this reason, this article will not discuss the use of experts in cases with these specific federal questions of law. However, please note that the following general rule applies: if your claim arises under federal law, then the statute under which you have brought your claim will provide the substantive law that will govern your claim. If an expert is necessary regarding mismanaged care, nursing home billing practices, benefits and claims review, or some other issue, the above noted procedural process would still apply and the substance of his/her testimony would be dictated by the governing federal statute.
D. Disclosure of Expert Material and Confidential Work Product in Federal Court Nursing Home Claims
Anyone who is in federal court for any reason (including
nursing home claims) must take note that Fed. R. Civ. P. 26(a) (2)(B)(ii) was amended in 2010. Tis amendment limited the disclosure obligation of a party regarding communications with his expert to just those consisting of “facts or data” considered by the expert. Tis amendment was meant to restrict discovery
of litigation theories or impressions of counsel shared with the testifying expert. At this time, only “material of a factual nature” is discoverable by the opposition. In addition, Fed. R. Civ. P. 26(b)(4)(B) and (C) were added to protect work product drafts of expert reports and expert communications between the expert and counsel. However, it is still permissible to seek discovery regarding the formulation of the expert’s opinions, the development of the opinions, the factual foundation of the opinions, and the basis of the opinions. Tis allows any testing methods, charts, references, or other methods used by the expert (including communications with individuals other than counsel) to be considered unprotected, discoverable evidence. Topics which remain discoverable include: (1) the rate of
the expert’s compensation, (2) any and all facts provided by the attorney that directly relate to forming the basis of the expert’s opinions, and (3) any assumptions provided by the attorney and relied upon by the expert in forming his or her opinions. Tese limitations do not apply to hypothetical scenarios discussed between the expert and counsel. While assumptions provided by counsel to the expert remain discoverable, the degree they affect the expert’s opinions are not. In general, the federal rules have created a level of protection for experts and attorneys which permits a certain amount of freedom in communication to lay the groundwork of a case. As always, an opposing party can attempt to file a motion with the court to go beyond these boundaries. However, they must show good cause, and they will have a high burden to meet to get the court to ignore these newly defined boundaries.
III. Expert Testimony in a Nursing Home Case in Maryland State Court
A. Qualifying your expert Most attorneys will find themselves in Maryland State
Circuit Court if litigating a nursing home claim. Because most claims against nursing home claims and assisted living facilities fall under the umbrella of medical malpractice claims, you will have to file the claim first with the Maryland Healthcare Alternative Dispute Resolutions Office (HADRO). If you wish to try your case in circuit court, pursuant to the Maryland Annotated Code, Courts and Judicial Proceedings, 3-2A-04, you must file an expert certificate of merit and expert report, along with a waiver of arbitration. Like medical malpractice claims, a minority of cases are heard and resolved at the HADRO arbitration level. However, the majority of nursing home claims are waived through to circuit court. As such, the plaintiff must have an expert sign a certificate of merit which attests to the fact that the standard of care has been breached, and that this breach is the proximate cause of the alleged injuries to a reasonable degree of medical probability (51% or more.) Te expert must also attest to spending less
28 Trial Reporter / Fall 2011
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