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

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 Under settled New Hampshire law, such claims should often be dismissed by the trial judge and withdrawn from the jury’s consideration.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

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