Publications

Holding Employers Liable for the Intentional Misdeeds of Their Employees: A Review of Respondeat Superior in Personal Injury Actions

September 28, 2014/by Kevin Dugan

By
Mark 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

July 28, 2014/by Kevin Dugan

The Attorney Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a Secret
By 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

July 28, 2014/by Holly Haines

Physician Heal Thyself? Evidentiary Issues When a Physician is the Plaintiff
In a Medical Malpractice Case
By
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

The Limited Role of Comparative Fault in NH Medical Negligence Cases

January 28, 2014/by Kevin Dugan

The Limited Role of Comparative Fault in New Hampshire Medical Negligence Cases
By
Kevin F. Dugan and Holly B. Haines

I. Introduction:
Medical negligence defendants often seek to deflect blame by alleging comparative fault on the part of the patient. Under settled New Hampshire law, such claims should often be dismissed by the trial judge and withdrawn from the jury’s consideration. The following is a general review of comparative fault law in New Hampshire and elsewhere as it applies in the medical malpractice context. Read more

Balancing the Scales of Justice – Achieving a Critical Mass of Women on the NH Judiciary

November 13, 2013/by Mark Abramson

pending

Protecting the Right to Make Informed Procreative Choices and Recover for Medical Malpractice From Negligent Preconception Medical Care

August 28, 2013/by Holly Haines

by Mark A. Abramson and Holly B. Haines
I. Introduction
The United States Constitution protects the fundamental rights of citizens to make procreative choices not to conceive or bear children. Consequently, when a child is born as a result of physician negligence that deprives a patient of these fundamental family planning rights, the New Hampshire Supreme Court has held that the patient may recover damages for that medical malpractice. The New Hampshire Supreme Court has allowed recovery of damages for the costs of pregnancy, labor, delivery and post-natal complications from medical malpractice for a wrongful conception, arising from a negligently performed sterilization procedure or negligently filled birth control prescription and resulting in the birth of a healthy child. In a similar vein, the Court has allowed recovery of damages for the extraordinary costs attendant to a child’s disability from medical malpractice for a wrongful birth, arising from negligent prenatal reproductive advice or testing and resulting in the birth of a disabled child. Read more

Legal Publications from the Abramson, Brown & Dugan Attorneys