Earlier this month, an appellate court in Mississippi issued a written opinion in a personal injury case that illustrates an important point for those considering filing a Maryland medical malpractice case. The issue presented in the case was whether the plaintiff should have had an expert prepare an affidavit in support of her claim, as is required under that state’s law.
The case is important to Maryland plaintiffs because Maryland law requires medical malpractice plaintiffs to obtain a similar affidavit from an expert in the field. As was the case here, a plaintiff’s failure to comply with this strict rule may result in the dismissal of an otherwise meritorious case.
The Facts of the Case
The plaintiff was the representative of a resident of the defendant nursing home who was admitted to the facility with a diagnosis of dementia. One day, a nurse checked on the resident, and all seemed to be fine. Then, just 20 minutes later, the same nurse returned, and the resident was sitting on the bathroom floor with a laceration on her head.
The personal representative of the resident filed a claim against the nursing home, arguing that the nurses and doctors at the facility failed to provide the resident with the expected level of care. However, believing the case to be one of traditional negligence – rather than a medical malpractice case – the plaintiff did not file an expert affidavit in support of his case.
The nursing home responded to the plaintiff’s case by asking the court to dismiss the case, based on the plaintiff’s failure to file the required affidavit. The plaintiff’s response was that her claims did not sound in medical malpractice, and even if they did, the nursing home’s own expert raised issues of fact that needed to be resolved by a jury.
The court disagreed with the plaintiff and reversed a lower court order that denied the nursing home’s motion for summary judgment. The court explained that the plaintiff’s claims related to the medical care provided by the nursing home, and thus the plaintiff’s claims should properly be characterized as a medical malpractice case.
The most important issue discussed in the case is the determination of whether a claim is characterized as a traditional negligence case – for which an affidavit is not required – or a medical malpractice case. In Maryland, cases filed against a qualified professional must often be accompanied by an affidavit from a professional in that field. However, if the issues presented are such that jurors could likely understand them without the assistance of expert testimony, an expert may not be necessary.
Has Your Loved One Been a Victim of Nursing Home Negligence?
If you have a loved one in a Maryland nursing home, and you believe that they may have suffered harm due to abuse or neglect, you should contact a dedicated nursing home attorney. The experienced Maryland nursing home abuse and neglect attorneys at the law firm of Lebowitz & Mzhen Personal Injury Lawyers are well-versed in bringing cases against neglectful and abusive nursing home employees. We offer a distinctive form of client-centered representation, and we make every effort to make sure that our clients are well-informed throughout the process. To learn more, call 410-654-3600 to schedule a free consultation today.
More Blog Posts:
A Follow-Up on the 12 Post-Irma Nursing Home Deaths, Maryland Nursing Home Lawyer Blog, published January 19, 2018.
Resident-on-Resident Abuse Is Prevalent in Maryland Nursing Homes, Maryland Nursing Home Lawyer Blog, published February 7, 2018.