Violation! An Examination of Ex Parte Communications in the Context of Medical Negligence Cases in New Hampshire


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

Jury Awards $117 million in Johnson & Johnson’s First Trial Loss in Asbestos-Related, Talc Powder Lawsuits

A jury in New Jersey recently awarded $117 million ($37 million in compensatory damages and $80 million in punitive damages) to a consumer who developed mesothelioma as a result of his regular use of Johnson & Johnson’s talc baby powder products. The jury apportioned 70% of the fault to J &J while the other 30% was assigned to Imerys Talc America, J&J’s talc supplier.

The plaintiff sued for design defect, failure to warn, negligent failure to warn, negligent supply of a defective product, breach of express and implied warranties, and strict liability in tort. The jury found that the risk of harm posed by the talc powder outweighed the usefulness of the product. In awarding punitive damages, the jury found that J&J and Imerys willfully, wantonly, and intentionally withheld information from consumers regarding the known hazards of talc containing asbestos and that inhaling asbestos may be deadly.

Although Johnson & Johnson faces thousands of plaintiffs nationally in talc powder-related lawsuits, the overwhelming majority of these cases claim that Johnson & Johnson failed to warn women about the risk of developing ovarian cancer from using the talc powder. Last November, a California jury ruled in favor of Johnson & Johnson in the only other asbestos-related trial against the company, making this the first trial loss for Johnson & Johnson in lawsuits alleging that asbestos in J&J Talc powder caused consumers harm.

J&J and Imerys plan to appeal the verdict, claiming the evidence shows that the plaintiff’s mesothelioma was caused by exposure to other sources of asbestos. As of late, Johnson & Johnson has succeeded in reversing multi-million-dollar verdicts in a few ovarian cancer-related lawsuits.

Corporations like Johnson & Johnson must be held accountable for the harm caused by the defective products they introduce to consumers. The attorneys at Abramson, Brown & Dugan have vast experience representing plaintiffs in various product liability lawsuits. One of our attorneys, Jared Green, is a leading attorney in this area of law and was recently named Best Lawyer in products liability law. If you or a loved one have been harmed by a defective product or because a product failed to provide adequate warnings, contact one of our attorneys today for a free consultation.

Nearly 1 in 5 Americans Have Experienced a Medical Error, Survey Reveals

21% of Americans have experienced a medical error, according to a survey conducted last spring. In addition to those errors experienced personally, 31% of Americans say they know someone whose care they were closely involved with who experienced a medical error.

Almost half of those who perceived that a mistake had occurred reported the errors to medical personnel or staff. Health care providers and facilities accepted responsibility for those errors half the time. Accordingly, the survey respondents who did not report an error said they did not do so because they did not think it would make a difference.

The Americans that participated in the survey identified several reasons for theses medical errors which included lack of attention to detail, providers not listening, poorly trained providers, providers not spending enough time with the patient, patient given too many unnecessary treatments, and providers not knowing about care received elsewhere.

The survey also found that diagnostic errors such as missed diagnoses, incorrect diagnoses, and delayed diagnoses were the most commonly reported type of error. Additionally, the majority of the errors occur in the outpatient setting.

Medical providers must be held accountable for their negligence. If you or someone you know have been injured as a result of a medical error, contact one of the experienced attorneys at Abramson, Brown & Dugan for a free consultation.

Medical Malpractice Attorney Finds Himself a Victim of Malpractice

In a tragic role reversal, Michael Mone, an esteemed plaintiff’s medical malpractice attorney based out of Boston, is a victim of medical malpractice. Despite his experience in negligent medical care, Mone now finds himself with kidney cancer that is inoperable and terminal.

A recent article in the Boston Globe reported that Mone underwent a precautionary MRI scan at a teaching hospital in Boston in 2009 and the radiologists who interpreted the scan noted that the three cysts found in his left kidney did not have “worrisome features.” In fact, a malignant tumor was visible and misidentified as a benign cyst. In 2015, Mone developed severe back pain and was referred to Mass General Hospital for an MRI. The scan revealed a metastasized tumor in Mone’s spine, which likely developed as a result of the misdiagnosed cancer in Mone’s left kidney.

Joan Lukey, a Boston attorney quoted in the Globe article, was “truly surprised that this could happen to [Mone], of all people” because he “knows as much medicine as a lot of doctors do.” Mone admits that “no matter how sophisticated you are, you don’t know that there’s an x-ray lurking in your records someplace that can blow your life up in a moment.” To put it simply, anyone can be a victim of medical malpractice.

Timely detection of cancerous tumors is crucial for effective treatment and recovery. Radiologists frequently miss important signs when they interpret imaging studies and must be held responsible for the resultant harm. The attorneys at Abramson, Brown & Dugan have vast experience pursuing claims against doctors who fail to detect signs of cancer. If you or a loved one has been harmed by a cancer misdiagnosis, contact one of our attorneys today for a free consultation.

Abramson, Brown & Dugan Attorney, Jared Green, Named Best Lawyer in Plaintiff’s Product Liability Law

Abramson, Brown & Dugan is proud to announce that Attorney Jared Green was recognized in the latest edition of the U.S. News & World Report’s Best Lawyers. Best Lawyers awards are based solely on the reviews of peers and colleagues in the legal profession. It is the oldest and most respected peer review organization in the profession.  Attorney Green was named “Best Lawyer” in Plaintiff’s Products Liability Law. With over 25 years of experience, Attorney Green has successfully represented numerous plaintiffs in a variety of products liability cases, including lawsuits involving accidents caused by defective equipment and machinery.

Attorney Green’s recognition as “Best Lawyer” not only reflects his dedication and experience in products liability law, but also exemplifies the quality of legal services provided at Abramson, Brown & Dugan. If you or a loved one has been harmed as a result of a defective product, contact Attorney Green or one of our other experienced attorneys for a free consultation.

Lead Extractions in Catherization Labs May Result in Wrongful Death

Despite clear warnings in medical literature, electrophysiologists continue to engage in the gravely dangerous practice of removing leads in catherization labs. Millions of Americans experience heart rhythm disorders (arrhythmia) which may require the implantation of pacemakers or defibrillators to regulate the heart rate. These devices connect to the heart muscle with leads—wires that run from the device to the heart’s chamber—which transmit electrical signals to assist the heart in maintaining a normal rate.

Lead extractions are the most dangerous procedure in the field of electrophysiology with roughly 15,000 performed annually. In fact, the rate of major complications ranges from 1.4% to 5.1%, regardless of the doctor’s experience. Statistically speaking, any doctor who regularly performs laser extractions will run into a major complication.

Though leads connected for less than a year can usually be removed with limited risk, the extraction of chronically implanted leads carries a significant risk of serious injury or death.  In lengthier implants, scar tissue envelops the point at which the lead attaches to the heart and acts like shrink-wrap around the leads. Thus, to extract the leads, heart specialists must feed a laser sheath through the superior vena cava—the major vein leading to the heart—and burn through the scar tissue to remove the lead. With a wall thickness around 1 mm, the superior vena cava is particularly susceptible to perforation by the sheath. Such a disruption presents the most devastating complication because the resulting blood loss is often deadly unless the perforation is repaired immediately.

In recognition of the serious complications associated with lead extractions, medical literature maintains that lead extractions should be performed in operating rooms (OR) with an appropriate surgical team on standby and equipment to handle procedures such as sternotomy, thoracotomy, and cardiac and vascular repair. Operating in the OR allows cardio-surgical teams to intervene in a timely manner should a complication arise. Following this approach saves a life every 100 or 200 procedures.

Yet, electrophysiologists regularly perform extractions in catherization labs which lack the necessary resources to immediately respond to any major complications. A 2010 survey of lead extractions revealed that 64% of doctors who performed the procedure did so in catherization labs and 25% of those doctors did so without a surgeon or bypass machine at hand. This practice is particularly dangerous because usually there is not enough time to transfer the patient to the OR and mobilize a surgical team. Once the superior vena cava is torn, delays in surgical response of more than 5-10 minutes typically result in the death of the patient. Given the costs associated with the use of an operating room and staffing extra personnel, doctors and hospitals are hesitant to move away from extractions in catherization labs. Thus, doctors are unnecessarily and negligently putting their patients in harm’s way.

Doctors and hospitals alike must be held responsible for such egregious conduct. The attorneys at Abramson, Brown, & Dugan have extensive experience investigating and resolving various medical malpractice cases. If you or a loved one suffered death or serious injury due to lead extractions performed in a catherization lab, with or without the presence of surgeon or bypass machine, contact one of our attorneys today to discuss your specific case.