I. Introduction
Civil discovery necessarily implicates two diametrically opposed interests:
one party wants to obtain information that the other party has that may help
win the case, while the other party has information only it knows about that it
wants to avoid providing to its opponent. Both sides are understandably
motivated by their interest in prevailing in the litigation but the resulting
disputes often require intervention from the court. Our judicial system has very
clearly taken sides in this context. To serve the foundational policy in favor of
decisions on the merits,2 New Hampshire applies a strong preference for broad
discovery, subject only to common sense protections for obvious instances of
overreach. 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 Green2024-03-15 08:45:532024-03-15 08:48:05Relevance as an Objection to Discovery Requests in Civil Cases
In medical negligence cases, the dogged pursuit of complete audit trail data can help achieve favorable results. In a recent case, the defendant medical practice produced an incomplete audit log with its answers to the plaintiff’s discovery requests, which revealed that the defendant medical provider edited the medical record, but failed to identify what alterations were made. Our determination to discover the changes made by the provider ultimately paved the way to a successful resolution. This article will review the state and federal audit trail regulations that guided our pursuit of the audit data and it will demonstrate one of the many ways an audit trail can be used advantageously in a medical negligence case. 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 Maalouf2023-08-04 12:42:582023-08-04 12:47:23Audit Trail Use in Medical Negligence Cases
In the Estate of Lisa Chartier v. Apple Therapy of Londonderry, LLC,2the New Hampshire Supreme Court recently clarified the law with respect to bystander emotional distress claims. In the 4-1 decision, the Court held that the “accident” that must be contemporaneously perceived as required in Corso v. Merrill3 is “a sudden, unexpected, and shocking event involving serious physical injury to a third party,” settling an issue that has been litigated in New Hampshire trial courts for over 30 years. This article will discuss the background giving rise to this issue and it will summarize the Chartier decision.
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
Relevance as an Objection to Discovery Requests in Civil Cases
/by Jared GreenBy: Jared R. Green & Elie A. Maalouf1
I. Introduction
Civil discovery necessarily implicates two diametrically opposed interests:
one party wants to obtain information that the other party has that may help
win the case, while the other party has information only it knows about that it
wants to avoid providing to its opponent. Both sides are understandably
motivated by their interest in prevailing in the litigation but the resulting
disputes often require intervention from the court. Our judicial system has very
clearly taken sides in this context. To serve the foundational policy in favor of
decisions on the merits,2 New Hampshire applies a strong preference for broad
discovery, subject only to common sense protections for obvious instances of
overreach. Read more
Audit Trail Use in Medical Negligence Cases
/by Elie MaaloufBy: Elie A. Maalouf & Nick E. Abramson
I. Introduction
In medical negligence cases, the dogged pursuit of complete audit trail data can help achieve favorable results. In a recent case, the defendant medical practice produced an incomplete audit log with its answers to the plaintiff’s discovery requests, which revealed that the defendant medical provider edited the medical record, but failed to identify what alterations were made. Our determination to discover the changes made by the provider ultimately paved the way to a successful resolution. This article will review the state and federal audit trail regulations that guided our pursuit of the audit data and it will demonstrate one of the many ways an audit trail can be used advantageously in a medical negligence case. Read more
New Hampshire Supreme Court Clarifies Law on Bystander Emotional Distress Claims
/by Jared GreenNew Hampshire Supreme Court Clarifies Law on Bystander Emotional Distress Claims
By: Jared R. Green1 & Elie A. Maalouf
I. Introduction
In the Estate of Lisa Chartier v. Apple Therapy of Londonderry, LLC,2 the New Hampshire Supreme Court recently clarified the law with respect to bystander emotional distress claims. In the 4-1 decision, the Court held that the “accident” that must be contemporaneously perceived as required in Corso v. Merrill3 is “a sudden, unexpected, and shocking event involving serious physical injury to a third party,” settling an issue that has been litigated in New Hampshire trial courts for over 30 years. This article will discuss the background giving rise to this issue and it will summarize the Chartier decision.
Read more
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