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
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Kevin Duganhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgKevin Dugan2014-07-28 03:20:472017-04-28 14:41:47The Attorney Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a Secret
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
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Holly Haineshttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgHolly Haines2014-07-28 03:12:032017-04-28 03:12:17Physician Heal Thyself? Evidentiary Issues When A Physician is the Plaintiff In a Medical Malpractice Case
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
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Kevin Duganhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgKevin Dugan2014-01-28 03:15:572017-04-28 03:16:10The Limited Role of Comparative Fault in NH Medical Negligence Cases
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Mark Abramsonhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgMark Abramson2013-11-13 03:04:432017-09-06 20:54:43Balancing the Scales of Justice – Achieving a Critical Mass of Women on the NH Judiciary
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
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Holly Haineshttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgHolly Haines2013-08-28 03:15:122017-04-28 03:15:24Protecting the Right to Make Informed Procreative Choices and Recover for Medical Malpractice From Negligent Preconception Medical Care
Ethical Considerations in Medical Malpractice When Client Testimony and the Records Conflict
By
Mark A. Abramson and Kevin F. Dugan
I. Introduction
The attorney-client privilege is “the oldest of the privileges for confidential communication known to the common law.”[1] “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”[2]
Like all things, however, the attorney-client privilege is susceptible to abuse. While it can be used to foster trust and protect a client’s legitimate interests, it can also be invoked as a shield to deflect inquiries into virtually any area that the attorney wishes to keep hidden. It may be affirmatively asserted in order to obscure wrongdoing on the part of the client, or it may be passively relied upon by an attorney who allows a client to commit perjury without correction. Read more
http://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpg00Kevin Duganhttp://www.arbd.com/wp-content/uploads/2017/02/ABD-logo.jpgKevin Dugan2012-06-28 03:16:562017-04-28 03:17:11Ethical Considerations in Medical Malpractice When Client Testimony and the Records Conflict
The Attorney Client ‘Shield’ in Medical Malpractice Cases Revisited: Why a Witness Knowledge of Facts is Not a Secret
/by Kevin DuganThe 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
/by Holly HainesPhysician 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
/by Kevin DuganThe 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
/by Mark Abramsonpending
Protecting the Right to Make Informed Procreative Choices and Recover for Medical Malpractice From Negligent Preconception Medical Care
/by Holly Hainesby 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
Ethical Considerations in Medical Malpractice When Client Testimony and the Records Conflict
/by Kevin DuganEthical Considerations in Medical Malpractice When Client Testimony and the Records Conflict
By
Mark A. Abramson and Kevin F. Dugan
I. Introduction
The attorney-client privilege is “the oldest of the privileges for confidential communication known to the common law.”[1] “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”[2]
Like all things, however, the attorney-client privilege is susceptible to abuse. While it can be used to foster trust and protect a client’s legitimate interests, it can also be invoked as a shield to deflect inquiries into virtually any area that the attorney wishes to keep hidden. It may be affirmatively asserted in order to obscure wrongdoing on the part of the client, or it may be passively relied upon by an attorney who allows a client to commit perjury without correction. Read more