We previously wrote about attempts by the defense bar to depose a plaintiff’s expert witnesses before the defense is even required to make their own expert disclosure, which have been repeatedly precluded by the court. Although there is no clear statutory provision or court rule governing this aspect of expert discovery sequencing, “[d]ecades of accepted and respected New Hampshire practice has always followed the procedure of deposing experts after both sides [have made their expert disclosures].”i This discovery procedure is efficient, fundamentally fair to all parties, and has been endorsed and implemented in a series of New Hampshire Superior Court orders. This update will summarize the two most recent orders inGentes v. Allenii andSouilmi v. Watson.iii
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Nick Abramsonhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgNick Abramson2021-01-22 16:59:382021-10-22 17:18:50UPDATE: Seeking Truth, or Competitive Advantage? The Timing of Expert Disclosures and Depositions in Medical Negligence Cases
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
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Elie Maaloufhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgElie Maalouf2020-11-22 17:31:282021-10-22 17:38:29“Shield” Misuse: Overcoming Improper Assertions of the Attorney-Client Privilege by Defense Attorneys in Medical Malpractice Cases
New Hampshire courts have made the point crystal clear: a plaintiff in a medical malpractice action does not, as a consequence of that action, waive her privilege as to communications with, and information about the plaintiff’s medical care from, medical treaters who are not parties to the case, even where those non-party medical treaters are employed by a hospital which is named as a defendant in the action. Nevertheless, defendants and their legal counsel continue to engage inex partecommunications with non-party medical treaters, thus violating the critical protections of the privilege. Accordingly, we feel compelled to publish on this issue yet again, particularly in light of a recent order issued by Belknap County Superior Court in a medical negligence action.Read more
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Nick Abramsonhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgNick Abramson2020-10-22 17:20:402021-10-22 17:29:20UPDATE #2: Violation! An Examination of Ex Parte Communications in the Context of Medical Negligence Cases in New Hampshire
Over thirty years ago, Congress enacted the Emergency Medical Treatment and Active Labor Act (“EMTALA”) in response to highly publicized incidents where hospitals were caught refusing service to indigent patients and even removing them from their premises and “dumping” them in areas with a large homeless population. EMTALA was intended to close a perceived loophole in state law civil liability which generally did not apply to claims alleging a failure to treat. Although EMTALA was not meant to displace state malpractice liability, but rather to supplement it, there has been some confusion about its reach. Two cases from New Hampshire illustrate the distinction between a proper EMTALA claim and a claim subject only to state malpractice law.
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Elie Maaloufhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgElie Maalouf2020-04-22 17:42:422021-10-22 17:54:14Medical Malpractice or Patient Dumping: New Hampshire’s Experience with EMTALA
In a recent medical malpractice case, one of the defendant doctors filed for Chapter 7 bankruptcy in the United States District Court for the District of New Hampshire, which automatically stayed the malpractice action pending in the superior court pursuant to 11 U.S.C. §362(a).2 To continue our malpractice case, we filed a motion for relief from the automatic stay with the bankruptcy court to allow the malpractice plaintiff to prosecute and liquidate his pending state court claims and to collect any damages awarded to the extent of the defendant doctor’s liability insurance coverage. Courts consistently grant relief for personal injury plaintiffs to continue their state court actions against the debtor-defendant under these circumstances. This article will explore how courts determine whether cause for relief exists and it will discuss the material factors that guide their inquiry.
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Elie Maaloufhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgElie Maalouf2020-02-22 17:56:092021-10-22 18:01:18When Negligent Doctors go Bankrupt: Avoiding the Automatic Stay in a Medical Malpractice Case
In the last ten years, the United States healthcare industry has experienced a largescale shift from paper to electronic health records (EHRs).[2]Ushered in by the Health Information Technology for Economic and Clinical Health Act (HITECH Act), the advent of health information technology[3](HIT) brought with it the promise of a reduced rate of medical errors, decreased healthcare costs, greater efficiency, and enhanced quality of care and patient safety.[4]EHRs were expected to offer numerous benefits including quicker and better access to patient records, automatic alerts and reminders, and improved communication between providers.[5]A national study conducted in 2011 concluded that 78% of physicians that had adopted EHRs experienced an overall enhancement in patient care.[6]One study found that EHRs are associated with a slight decrease in the number of medical malpractice suits.[7]Other researchers, however, do not consider these encouraging findings to be dispositive and, in recent years, more have reached the opposite conclusion.[8]Read more
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Holly Haineshttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgHolly Haines2018-05-23 09:38:142018-05-23 09:54:50Errors in Electronic Health Records: A Growing Source for Medical Malpractice Claims
UPDATE: Seeking Truth, or Competitive Advantage? The Timing of Expert Disclosures and Depositions in Medical Negligence Cases
/ by Nick AbramsonBy: Nick E. Abramson & Elie A. Maalouf
I. Introduction
We previously wrote about attempts by the defense bar to depose a plaintiff’s expert witnesses before the defense is even required to make their own expert disclosure, which have been repeatedly precluded by the court. Although there is no clear statutory provision or court rule governing this aspect of expert discovery sequencing, “[d]ecades of accepted and respected New Hampshire practice has always followed the procedure of deposing experts after both sides [have made their expert disclosures].” i This discovery procedure is efficient, fundamentally fair to all parties, and has been endorsed and implemented in a series of New Hampshire Superior Court orders. This update will summarize the two most recent orders in Gentes v. Allen ii and Souilmi v. Watson . iii
Read more
“Shield” Misuse: Overcoming Improper Assertions of the Attorney-Client Privilege by Defense Attorneys in Medical Malpractice Cases
/ by Elie MaaloufBy: 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
UPDATE #2: Violation! An Examination of Ex Parte Communications in the Context of Medical Negligence Cases in New Hampshire
/ by Nick AbramsonBy Nick Abramson & Elie Maalouf i
I. Introduction
New Hampshire courts have made the point crystal clear: a plaintiff in a medical malpractice action does not, as a consequence of that action, waive her privilege as to communications with, and information about the plaintiff’s medical care from, medical treaters who are not parties to the case, even where those non-party medical treaters are employed by a hospital which is named as a defendant in the action. Nevertheless, defendants and their legal counsel continue to engage in ex parte communications with non-party medical treaters, thus violating the critical protections of the privilege. Accordingly, we feel compelled to publish on this issue yet again, particularly in light of a recent order issued by Belknap County Superior Court in a medical negligence action. Read more
Medical Malpractice or Patient Dumping: New Hampshire’s Experience with EMTALA
/ by Elie MaaloufBy: Elie A. Maalouf & Jared R. Green
I. Introduction
Over thirty years ago, Congress enacted the Emergency Medical Treatment and Active Labor Act (“EMTALA”) in response to highly publicized incidents where hospitals were caught refusing service to indigent patients and even removing them from their premises and “dumping” them in areas with a large homeless population. EMTALA was intended to close a perceived loophole in state law civil liability which generally did not apply to claims alleging a failure to treat. Although EMTALA was not meant to displace state malpractice liability, but rather to supplement it, there has been some confusion about its reach. Two cases from New Hampshire illustrate the distinction between a proper EMTALA claim and a claim subject only to state malpractice law.
Read more
When Negligent Doctors go Bankrupt: Avoiding the Automatic Stay in a Medical Malpractice Case
/ by Elie MaaloufBy Elie A. Maalouf & Holly B. Haines 1
I. Introduction
In a recent medical malpractice case, one of the defendant doctors filed for Chapter 7 bankruptcy in the United States District Court for the District of New Hampshire, which automatically stayed the malpractice action pending in the superior court pursuant to 11 U.S.C. §362(a). 2 To continue our malpractice case, we filed a motion for relief from the automatic stay with the bankruptcy court to allow the malpractice plaintiff to prosecute and liquidate his pending state court claims and to collect any damages awarded to the extent of the defendant doctor’s liability insurance coverage. Courts consistently grant relief for personal injury plaintiffs to continue their state court actions against the debtor-defendant under these circumstances. This article will explore how courts determine whether cause for relief exists and it will discuss the material factors that guide their inquiry.
Read more
Errors in Electronic Health Records: A Growing Source for Medical Malpractice Claims
/ by Holly HainesBy
Holly B. Haines and Elie A. Maalouf [1]
March 2018
I. Introduction
In the last ten years, the United States healthcare industry has experienced a largescale shift from paper to electronic health records (EHRs). [2] Ushered in by the Health Information Technology for Economic and Clinical Health Act (HITECH Act), the advent of health information technology [3] (HIT) brought with it the promise of a reduced rate of medical errors, decreased healthcare costs, greater efficiency, and enhanced quality of care and patient safety. [4] EHRs were expected to offer numerous benefits including quicker and better access to patient records, automatic alerts and reminders, and improved communication between providers. [5] A national study conducted in 2011 concluded that 78% of physicians that had adopted EHRs experienced an overall enhancement in patient care. [6] One study found that EHRs are associated with a slight decrease in the number of medical malpractice suits. [7] Other researchers, however, do not consider these encouraging findings to be dispositive and, in recent years, more have reached the opposite conclusion. [8] Read more