Medical Malpractice, Nursing Home Negligence, and Conflicting Expert Testimony

John Fisher
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Stopping Medical Injustice

The U.S. Census Bureau predicts that by 2050 there will be nearly 90 million people in the U.S. aged 65 and older.  Millions of the elderly reside in nursing homes and the number or nursing home residents will increase as our society ages. 

Experienced medical malpractice attorneys know that the nurses, doctors, attendants, aides, and the nursing home facilities themselves are subject to civil liability on the basis of medical malpractice.  Additionally, our attorneys keep abreast of recent court decisions that involve medical malpractice and the growing area of nursing home negligence and elder abuse. 

Consider a recent New York case titled Buchanan v. Flushing Manor Nursing Home Inc.  The plaintiff here was an elderly woman with a high risk for falling who fell while at a nursing home.  The fall resulted in a fractured hip.  As part of the facilities plan of care a chair alarm was placed on the plaintiff’s wheel chair so that staff would be alerted when she attempted to get up.  Staff, however, turned off the alarm. 

The crux of the plaintiff’s claim was that the nursing home departed from using the accepted medical standards and that such departure caused the plaintiff’s injury.  The court here continued to articulate the tried and true requirements for a successful medical malpractice claim; there must be “a deviation or departure from accepted medical practice, and evidence that such departure was a proximate cause of injury”.  Of course there must also be a showing that a duty to prevent harm was owed to the plaintiff.  The plaintiff’s injuries and damages must be proved as well. 

What the accepted medical standards are must be proved by expert testimony provided by a medical professional whom practices within the same community where the alleged negligence occurred.  The attorneys in Buchanan used expert testimony to prove that there was a deviation from the accepted standard of care.  But the defendant also had an expert of their own.  The defendant’s expert testified that there was no such deviation and the defense moved for the court to dismiss the case. 

The court ruled that such a conflict will not automatically prevent the plaintiff from recovering compensation for her injuries.  The Buchanan case shows that conflicting testimony of opposing witnesses is a matter on which a jury must deliberate.  The jury will allocate the weight and credibility of each witness and decide the case accordingly.  Therefore, the Buchanan court would not dismiss the case in favor of the defendant.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com

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