Expert Testimony by Non-Party Medical Treaters in Medical Negligence Cases
By: Jared R. Green & Elie A. Maalouf

I. Introduction
Can counsel for a non-party deponent in medical negligence cases
instruct the deponent not to answer deposition questions simply because they
arguably elicit expert testimony? According to several New Hampshire superior
court orders, the answer is no. This article will discuss the law governing this
issue and it will review the numerous superior court decisions which have
found that non-party deponents must answer deposition questions calling for
expert opinions. Read more

By: Elie A. Maalouf & Jared R. Green

I. Introduction

Our firm recently represented multiple clients in a series of medical malpractice cases against a hospital. All of the cases involved the same defendant-physician, however, each case comprised separate and distinct acts of medical negligence. After reaching a settlement in one case, the defense attorneys proposed as a condition of settlement for all the remaining cases that the plaintiff prohibit the use of his or her medical records in any subsequent cases against the defendant hospital. We promptly rejected the proposed settlement provision because, in our view, agreeing to such a condition would violate Rule 5.6(b) of the New Hampshire Rules of Professional Conduct, which prohibits an attorney from agreeing to a settlement term that would directly or indirectly restrict his or her right to practice. 1  This article will explain the applicability of Rule 5.6(b) to this situation and it will discuss an advisory opinion issued by the New Hampshire Bar Association Ethics Committee that squarely supports our position. Read more

By: Elie A. Maalouf & Nick E. Abramson

I. Introduction

Defense attorneys routinely assert the attorney-client privilege on behalf of their clients to preclude the disclosure  of  relevant  facts  despite  the  lack  of any basis to do so. In medical malpractice cases, defense counsel often attempt to prevent their clients from answering deposition questions about their knowledge of the  plaintiff’s  subsequent  treatment  or  conditions  by  asserting the attorney-client privilege. Similarly,  defense  attorneys  frequently  instruct their clients not to answer  deposition  questions  regarding  the  clients’ knowledge about the prior testimony of the other parties to the litigation. In a recent medical malpractice case, for example, we  deposed  a  defendant  doctor and asked her what her understanding was about the prior testimony  of  our client. We made clear that we were only seeking what she was told about what our client testified to and that we did not want to know  defense  counsel’s thoughts, mental impressions, or comments about the testimony. Nevertheless, defense counsel instructed her not to answer based on the attorney-client privilege, arguing that the defendant’s  knowledge  of  the  testimony  was protected from disclosure because defense counsel was the source of that knowledge. This is a common defense tactic and should be prohibited. Read more