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
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Jared Greenhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgJared Green2023-03-02 19:50:412023-03-02 19:57:14Expert Testimony by Non-Party Medical Treaters in Medical Negligence Cases
Traditionally, the standard practice in New Hampshire when resolving medical malpractice and personal injury cases with outstanding healthcare liens had been for the plaintiff to warrant in the release that he or she would pay the lien and agree to indemnify the releasees in the event the lien was not paid. Recently, however, some insurers have begun seeking further assurances by insisting, as a condition of settlement, that plaintiff’s attorneys agree to hold the releasees harmless and indemnify them against subrogation interests, reimbursement claims, and statutory liens asserted by government entities, private insurers, and/or healthcare providers. 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 Maalouf2021-10-22 16:16:462023-03-02 19:56:43Unethical Indemnity Issues in Settlement Releases
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
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Elie Maaloufhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgElie Maalouf2021-04-01 16:42:502021-10-22 16:55:52Impermissible Restrictions on a Lawyer’s Right to Practice in Settlement Agreements
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. Allenii and Souilmi 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 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
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
Expert Testimony by Non-Party Medical Treaters in Medical Negligence Cases
/by Jared GreenExpert 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
Unethical Indemnity Issues in Settlement Releases
/by Elie MaaloufBy: Elie A. Maalouf & Holly B. Haines
I. Introduction
Traditionally, the standard practice in New Hampshire when resolving medical malpractice and personal injury cases with outstanding healthcare liens had been for the plaintiff to warrant in the release that he or she would pay the lien and agree to indemnify the releasees in the event the lien was not paid. Recently, however, some insurers have begun seeking further assurances by insisting, as a condition of settlement, that plaintiff’s attorneys agree to hold the releasees harmless and indemnify them against subrogation interests, reimbursement claims, and statutory liens asserted by government entities, private insurers, and/or healthcare providers. Read more
Impermissible Restrictions on a Lawyer’s Right to Practice in Settlement Agreements
/by Elie MaaloufBy: 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
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. Allenii 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 Maaloufi
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