Nursing Home Accidents and the Importance of Expert Witness Testimony

22-2-2532 Estate Of Frankie L. Garner v. Senior Care Centers Of America, Inc.,App. Div. (per curiam) (4 pp.)

Defendant Senior Care Centers of America, Inc. operates an adult care facility. Garner, who was then eighty-four years old, was being cared for in the facility when she stood up and then abruptly sat back down, either missing the chair or coming only in contact with the edge of the seat, causing her to fall to the floor.

The key to this case is the fact that plaintiff’s attorney did not hire an expert to determine if the plaintiff should have had additional supervision give her medical, health, or mental condition at the time of his fall. The court found that on the facts of the fall, a plaintiff who stands and then sits and falls are not enough to establish liability because health service providers are not guarantors of absolute safety, Her estate’s action failure to provide an expert report regarding the applicable standard of care or its breach, or an expert report connecting the injuries in question with the fall. The appellate panel affirms. Key to the ruling and the case is the applicable staffing regulations mandated at least one full time staff member for every nine participants. Here, the record reveals that the staff member supervising Garner was watching only three other participants.

Nonetheless, the estate argues a jury could use its “common knowledge” in finding a deviation of the applicable standard of care. However, defendant complied with the applicable state regulations and no expert has been identified by the estate to suggest defendant violated the applicable standard of care or that the staff member watching Garner at the time did not act appropriately. In addition, the doctrine of res ipsa loquitur is inapplicable. There is nothing about the circumstances regarding Garner’s fall, when viewed in the light most favorable to the estate, that would suggest it is more probable than not that defendant had been negligent. Health service facilities are not absolutely liable for all falls or injuries that occur on their premises.

Reading between the lines, it is clear that the attorney who took this case told his clients they may be able to get to a jury and work on their sympathies but they could NEVER get an expert to provide an opinion to support their cause of action. Unfortunately, the case was dismissed at the summary judgement level and the plaintiff never got to that jury. Key to the case, experts, experts, experts.

Published by civil law attorney, Jeffrey Hark

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