Therefore, the principal issue for our review is whether, in deciding appellees' motion for judgment, the trial court properly determined that the testimony of appellants' expert was unqualified and insufficient to prove the applicable national standard of care. "In a medical malpractice action, the plaintiff carries the burden of establishing . . . `the applicable standard of care, deviation from that standard, and a causal relationship between the deviation and the injury.'" Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007) (quoting Travers v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996)). "Because these issues are `distinctly related to some science, profession, or occupation,' expert testimony is usually required to establish each of the elements, except where the proof is so obvious as to lie within the ken of the average lay juror."
. In the District of Columbia, in a medical-malpractice negligence action, these "essential elements . . ., i.e., duty, breach, causation[,] and damages," Hardi v. Mezzanotte, 818 A.2d 974 (D.C. 2003) (citations and quotation marks omitted), are applied such that "the plaintiff has the burden of proving the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury," Giordano v. Sherwood, 968 A.2d 494, 498 (D.C. 2009) (citation and quotation marks omitted); see also Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007), cited in Sanders v. United States, 572 F. Supp. 2d 194, 197 (D.D.C. 2008) (applying D.C. law). A cause of action based on medical-malpractice negligence in the District of Columbia arises under the Survival Act when, prior to a decedent's death, a medical-malpractice negligence action has accrued in favor of the decedent that may be pursued by his estate.
deviated from that standard of care; (3) and that a causal relationship exists between the defendant's deviation and the plaintiff's injuries. Flores–Hernandez v. United States, 910 F.Supp.2d 64, 72, (D.D.C.2012) (enumerating tripartite burden in medical malpractice actions) (citing Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990)); Ornoff v. Kuhn & Kogan, Chartered, 549 A.2d 728, 731 (D.C.1998); Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 623–24 (D.C.1986)); see also Burton v. United States, 668 F.Supp.2d 86, 98 (D.D.C.2009); Appleton v. United States, 180 F.Supp.2d 177, 182 (D.D.C.2002) (in FTCA negligence suit, the plaintiff “bears the burden of proof, by a preponderance of the evidence, to demonstrate the applicable standard of care, deviation from that standard, and the causal relationship between the deviation and plaintiff's injury”) (citing Messina v. District of Columbia, 663 A.2d 535, 537–38 (D.C.1995)); Giordano v. Sherwood, 968 A.2d 494, 498 (D.C.2009); Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C.2007).
Under District of Columbia law, the plaintiff in a medical malpractice action must demonstrate by a preponderance of the evidence three elements: (1) the applicable standard of care; (2) the fact that the defendant, through his or her actions or inactions, deviated from that standard of care; (3) and that a causal relationship exists between the defendant's deviation and the plaintiff's injuries. Flores–Hernandez v. United States, 910 F.Supp.2d 64, 72–73 (D.D.C.2012) (enumerating tripartite burden in medical malpractice actions) (citing Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990); Ornoff v. Kuhn & KoganChartered, 549 A.2d 728, 731 (D.C.1988); Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 623–24 (D.C.1986)); see also Burton v. United States, 668 F.Supp.2d 86, 98 (D.D.C.2009); Giordano v. Sherwood, 968 A.2d 494, 498 (D.C.2009); Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C.2007); Appleton v. United States, 180 F.Supp.2d 177, 182 (D.D.C.2002) (in FTCA negligence suit, plaintiff “bears the burden of proof, by a preponderance of the evidence, to demonstrate the applicable standard of care, deviation from that standard, and the casual [sic] relationship between the deviation and plaintiff's injury”) (citing Messina v. District of Columbia, 663 A.2d 535, 537–38 (D.C.1995)). Each of these elements must usually be proved by expert testimony. Porter v. McHugh, 850 F.Supp.2d 264, 267 (D.D.C.2012) (citing Cleary v. Group Health Ass'n, 691 A.2d 148, 153 (D.C.1997) (“Generally, in a medical malpractice negligence action, the plaintiff must present medical expert testimony to establish the standard of care, expert testimony that the defendant's conduct deviated from that standard of care, and expert testimony establishing that the alleged deviation proximately caused the plaintiff's injuries”)); see also Woldeamanuel v. Georgetown Univ. Hosp., 703 A.2d 1243, 1245 (D.C.1
Strickland, supra, 899 A.2d at 773-74 (internal punctuation and citations omitted); Snyder v. George Washington Univ., 890 A.2d 237, 241 n. 3 (D.C. 2006) (standard-of-care "testimony must reflect some evidence of a national standard, such as attendance at national seminars or meetings or conventions, or reference to published materials, when evaluating a medical course of action or treatment"). Further, an expert's educational and professional background is not sufficient to demonstrate that he is familiar with the national standard of care. Strickland, supra, 899 A.2d at 774; Nwaneri v. Sandidge, 931 A.2d 466, 467 (D.C. 2007) ("Dr. Woratyla's expertise in the field of vascular surgery, standing alone, without specific testimony or evidence in the record establishing the basis for his knowledge of the national standard of care . . . was insufficient to lay the proper evidentiary foundation to allow Dr. Woratyla to give expert opinion testimony that appellant deviated from the standard of care"). Where the expert makes "no attempt to link his testimony to any certification process, current literature, conference or discussion with other knowledgeable professionals," there is no "basis for his discussion of the national standard of care."
As noted already, District of Columbia law governs this case. “In a medical malpractice action, the plaintiff carries the burden of establishing, through expert testimony, ‘the applicable standard of care, deviation from that standard, and a causal relationship between the deviation and the injury.’ ” Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C.2007) (quoting Travers v. Dist. of Columbia, 672 A.2d 566, 568 (D.C.1996)); seeCárdenas v. Muangman, 998 A.2d 303, 306 (D.C.2010) (“Because these issues are distinctly related to some science, profession, or occupation, expert testimony is usually required to establish each of the elements, except where the proof is so obvious as to lie within the ken of the average lay juror.”) (quoting Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990)) (internal quotation marks omitted).
Strickland, 899 A.2d at 773–74 (internal punctuation and citations omitted); Snyder v. George Washington Univ., 890 A.2d 237, 241 n. 3 (D.C.2006) (standard of care “testimony must reflect some evidence of a national standard, such as attendance at national seminars or meetings or conventions, or reference to published materials, when evaluating a medical course of action or treatment”). Further, an expert's educational and professional background is not sufficient to demonstrate that he is familiar with the national standard of care. Strickland, 899 A.2d at 774;Nwaneri v. Sandidge, 931 A.2d 466, 467 (D.C.2007) (“Dr. Woratyla's expertise in the field of vascular surgery, standing alone, without specific testimony or evidence in the record establishing the basis for his knowledge of the national standard of care ... was insufficient to lay the proper evidentiary foundation to allow Dr. Woratyla to give expert opinion testimony that appellant deviated from the standard of care”). Where the expert makes “no attempt to link his testimony to any certification process, current literature, conference or discussion with other knowledgeable professionals,” there is no “basis for his discussion of the national standard of care.” Strickland, 899 A.2d at 774.
To establish a medical malpractice claim under District of Columbia law, plaintiff must show: (1) that there was a national standard of care for determining whether a resident of a long term care facility was a safe or unsafe smoker; (2) that the VA deviated from that standard of care; and (3) that the deviation caused the harm to plaintiff. See Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007). Defendant has moved to dismiss or for summary judgment arguing that plaintiff has failed to show a national standard of care requiring assessment of nursing home patients for smoking risk and that even if plaintiff can show a national standard, it has failed to demonstrate any breach by defendant. The Court disagrees.
"In the District of Columbia, the applicable standard of care in a medical malpractice action is 'a national standard, not just a local custom.'" Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C. 2007) (quoting Travers v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996)). And "the testifying expert must establish that the relevant standard of care is followed nationally, 'either through reference to a published standard, discussion of the described course of treatment with practitioners outside the District at seminars or conventions, or through presentation of relevant data.'"
On February 22, 2011, Pauline dismissed under Federal Rule of Civil Procedure 41(a) the claims against defendant Teamstaff Government Solutions Inc. For a medical malpractice negligence claim, D.C. courts have required a plaintiff to show: 1) “the applicable standard of care,” 2) “a deviation from that standard” and 3) “a causal relationship between the deviation and the injury.” Hill v. Medlantic Health Care Grp., 933 A.2d 314, 325 (D.C.2007); Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C.2007). In an action for negligence, the plaintiff bears the burden of proving the national standard of care by a preponderance of the evidence.