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
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
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
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. Haines1
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
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