Despite clear law to the contrary, defense counsel in medical malpractice cases continue to engage in unauthorizedex partecommunications with the plaintiff’s nonparty treating physicians. In fact, in a recent medical malpractice case, defense counsel casually mentioned during the deposition of a defendant that he had already communicated with two of the defendant-physician’s partners, who were nonparty treaters of the plaintiff. Defense counsel’s expounded justification for this transgression was that he was entitled to speak, ex parte, with any members of the defendant-physician’s medical group, even those not named as parties in the action. Whether defense counsel is uninformed as to the governing law on this issue matters not – in New Hampshire, this practice is prohibited. Communications of this nature violate not only New Hampshire law established thirty years ago inNelson v. Lewis,[2]but also the physician-patient privilege.[3]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 Maalouf2018-05-14 22:05:402018-05-15 16:14:29Violation! An Examination of Ex Parte Communications in the Context of Medical Negligence Cases in New Hampshire
This article is offered as a case study of a catastrophic personal injury case. The litigation, which was resolved in November 1998 for a total of $8,950,000.00, is notable for its many twists and turns. In the end, a number of lessons can be learned which are generally applicable to the practice of personal injury law in this state.Read more
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Mark Abramsonhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgMark Abramson2017-04-15 18:41:372018-05-15 21:43:55Shoemaker v OHM Corporation a Case Study
The Early Offer Alternative In Medical Malpractice Litigation:
A Statutory Trap to Limit Liability
INTRODUCTION
On June 27, 2012, over the veto of the Governor of New Hampshire and over the objections of the two largest medical malpractice insurers in New Hampshire, medical malpractice plaintiffs’ lawyers, the New Hampshire Association for Justice, and New Hampshire citizens harmed by medical malpractice, the New Hampshire legislature passed SB 406, the so‑called “Early Offer” bill, into law, enacting RSA chapter 519‑C. This new law was pushed through the legislature in less than five months, with only two public hearings, with consideration and hearing by only one committee (Judiciary) in each chamber of the General Court, and after being rejected by every other jurisdiction in the United States where it has been proposed, as well as by the United States Congress.3 Perhaps most notably, this law was not necessary in New Hampshire since insurers and physicians have always had the right to make an early offer to a plaintiff if a negligent medical error occurred.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 Haines2017-03-18 21:59:382017-03-19 00:15:44The Early Offer Alternative In Medical Malpractice Litigation
Oftentimes in personal injury actions employers attempt to avoid liability for the criminal acts of their employees arguing the conduct was unauthorized, and thus, outside the scope of employment. Consider, for example, the traveling salesman who drives under the influence of alcohol to various sales calls and causes an accident resulting in serious injuries. Or the counselor who manipulates a position of trust to sexually assault his patients. Or the drug-diverting healthcare worker who swaps medication-filled syringes, infecting patients with various diseases. In such cases, when the victim brings a claim against the employer based on the doctrine of respondent superior, the employer routinely contends it is not vicariously liable for the criminal conduct of its employee, relying on a broad assumption that criminal acts fall outside the scope of employment.Read more
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Kevin Duganhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgKevin Dugan2014-09-28 03:21:422018-05-23 09:56:31Holding Employers Liable for the Intentional Misdeeds of Their Employees: A Review of Respondeat Superior in Personal Injury Actions
The Attorney Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a SecretBy Mark A. Abramson and Kevin F. Dugan
I. Introduction In a recent article, we discussed how the crime-fraud exception may be used to combat the improper use of the attorney-client privilege as a shield for fraudulent behavior. As every practitioner knows, however, not every improper use of the privilege rises to the level of fraud. Attorneys routinely assert the privilege on behalf of their clients to prevent the disclosure of relevant facts even though there is no basis to do so. In medical negligence cases, for example, defense attorneys often try to prevent their clients from answering deposition questions about their knowledge of the plaintiff’s subsequent medical treatment or conditions by asserting the attorney-client and work-product privileges. In such cases, the attorney for the defendant-physician says the source of the defendant’s knowledge was their attorney, so the defendant’s knowledge of the facts being asked about is protected from disclosure.Read more
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Kevin Duganhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgKevin Dugan2014-07-28 03:20:472023-12-05 18:01:08The Attorney Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a Secret
Physician Heal Thyself? Evidentiary Issues When a Physician is the Plaintiff In a Medical Malpractice CaseBy Mark A. Abramson and Holly B. Haines
Our last article addressed the limited role of comparative fault in medical malpractice cases and the settled New Hampshire law on why the issue usually should not be presented to the jury due to the significant danger of an unfair assessment of fault. This danger is only heightened when the patient is a physician who is the victim of medical malpractice. Due to a plaintiff’s status as a physician alone, a jury may make unfair assumptions about his or her education, training and experience and improperly assess blame where it is unwarranted. Defense counsel may try to exploit these assumptions by implying that a physician plaintiff should have done more for him or herself than a lay plaintiff due to his or her inherent knowledge base, thereby deflecting blame from the defendant medical provider onto the plaintiff. Alternately, defense counsel may exploit these assumptions by implying that the plaintiff is a bad doctor because he or she did not make the appropriate diagnosis of his or her own condition. Both of these tactics are improper and should not be allowed at trial. A physician who is a patient is no different than any other person seeking medical care. When a physician is sick or injured, he or she is no less vulnerable, fearful, or in need than any of us. In certain ways, a physician plaintiff may be more vulnerable because he or she is used to providing care to others and now must seek care from someone else for a condition over which he or she has no control.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 Haines2014-07-28 03:12:032017-04-28 03:12:17Physician Heal Thyself? Evidentiary Issues When A Physician is the Plaintiff In a Medical Malpractice Case
Violation! An Examination of Ex Parte Communications in the Context of Medical Negligence Cases in New Hampshire
/ by Elie MaaloufBy
Nick E. Abramson and Elie A. Maalouf [1]
December 2017
I. Introduction:
Despite clear law to the contrary, defense counsel in medical malpractice cases continue to engage in unauthorized ex parte communications with the plaintiff’s nonparty treating physicians. In fact, in a recent medical malpractice case, defense counsel casually mentioned during the deposition of a defendant that he had already communicated with two of the defendant-physician’s partners, who were nonparty treaters of the plaintiff. Defense counsel’s expounded justification for this transgression was that he was entitled to speak, ex parte, with any members of the defendant-physician’s medical group, even those not named as parties in the action. Whether defense counsel is uninformed as to the governing law on this issue matters not – in New Hampshire, this practice is prohibited. Communications of this nature violate not only New Hampshire law established thirty years ago in Nelson v. Lewis , [2] but also the physician-patient privilege. [3] Read more
Shoemaker v OHM Corporation a Case Study
/ by Mark AbramsonI. Introduction:
This article is offered as a case study of a catastrophic personal injury case. The litigation, which was resolved in November 1998 for a total of $8,950,000.00, is notable for its many twists and turns. In the end, a number of lessons can be learned which are generally applicable to the practice of personal injury law in this state. Read more
The Early Offer Alternative In Medical Malpractice Litigation
/ by Holly HainesThe Early Offer Alternative In Medical Malpractice Litigation:
A Statutory Trap to Limit Liability
INTRODUCTION
On June 27, 2012, over the veto of the Governor of New Hampshire and over the objections of the two largest medical malpractice insurers in New Hampshire, medical malpractice plaintiffs’ lawyers, the New Hampshire Association for Justice, and New Hampshire citizens harmed by medical malpractice, the New Hampshire legislature passed SB 406, the so‑called “Early Offer” bill, into law, enacting RSA chapter 519‑C. This new law was pushed through the legislature in less than five months, with only two public hearings, with consideration and hearing by only one committee (Judiciary) in each chamber of the General Court, and after being rejected by every other jurisdiction in the United States where it has been proposed, as well as by the United States Congress.3 Perhaps most notably, this law was not necessary in New Hampshire since insurers and physicians have always had the right to make an early offer to a plaintiff if a negligent medical error occurred. Read more
Holding Employers Liable for the Intentional Misdeeds of Their Employees: A Review of Respondeat Superior in Personal Injury Actions
/ by Kevin DuganByMark A. Abramson & Kevin F. Dugan
I. Introduction
Oftentimes in personal injury actions employers attempt to avoid liability for the criminal acts of their employees arguing the conduct was unauthorized, and thus, outside the scope of employment. Consider, for example, the traveling salesman who drives under the influence of alcohol to various sales calls and causes an accident resulting in serious injuries. Or the counselor who manipulates a position of trust to sexually assault his patients. Or the drug-diverting healthcare worker who swaps medication-filled syringes, infecting patients with various diseases. In such cases, when the victim brings a claim against the employer based on the doctrine of respondent superior, the employer routinely contends it is not vicariously liable for the criminal conduct of its employee, relying on a broad assumption that criminal acts fall outside the scope of employment. Read more
The Attorney Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a Secret
/ by Kevin DuganThe Attorney Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a SecretBy Mark A. Abramson and Kevin F. Dugan
I. Introduction
In a recent article, we discussed how the crime-fraud exception may be used to combat the improper use of the attorney-client privilege as a shield for fraudulent behavior. As every practitioner knows, however, not every improper use of the privilege rises to the level of fraud. Attorneys routinely assert the privilege on behalf of their clients to prevent the disclosure of relevant facts even though there is no basis to do so. In medical negligence cases, for example, defense attorneys often try to prevent their clients from answering deposition questions about their knowledge of the plaintiff’s subsequent medical treatment or conditions by asserting the attorney-client and work-product privileges. In such cases, the attorney for the defendant-physician says the source of the defendant’s knowledge was their attorney, so the defendant’s knowledge of the facts being asked about is protected from disclosure. Read more
Physician Heal Thyself? Evidentiary Issues When A Physician is the Plaintiff In a Medical Malpractice Case
/ by Holly HainesPhysician Heal Thyself? Evidentiary Issues When a Physician is the Plaintiff
In a Medical Malpractice CaseBy
Mark A. Abramson and Holly B. Haines
Our last article addressed the limited role of comparative fault in medical malpractice cases and the settled New Hampshire law on why the issue usually should not be presented to the jury due to the significant danger of an unfair assessment of fault. This danger is only heightened when the patient is a physician who is the victim of medical malpractice. Due to a plaintiff’s status as a physician alone, a jury may make unfair assumptions about his or her education, training and experience and improperly assess blame where it is unwarranted. Defense counsel may try to exploit these assumptions by implying that a physician plaintiff should have done more for him or herself than a lay plaintiff due to his or her inherent knowledge base, thereby deflecting blame from the defendant medical provider onto the plaintiff. Alternately, defense counsel may exploit these assumptions by implying that the plaintiff is a bad doctor because he or she did not make the appropriate diagnosis of his or her own condition. Both of these tactics are improper and should not be allowed at trial. A physician who is a patient is no different than any other person seeking medical care. When a physician is sick or injured, he or she is no less vulnerable, fearful, or in need than any of us. In certain ways, a physician plaintiff may be more vulnerable because he or she is used to providing care to others and now must seek care from someone else for a condition over which he or she has no control. Read more