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Allocating Fault to the Empty Chair Remains the Law
– for Now.
On May 31,
2007 the New Hampshire Senate took up HB143, the legislation
passed earlier this year by the House which would have explicitly
overturned the N.H. Supreme Court’s recent decisions in Debenedetto v. CLD Consulting Engineers
and Nilsson v. Bierman. These cases gave an expansive
reading to the term “party” as used in the statute governing
apportionment of fault among tortfeasors, RSA
507:7-e. HB143 would have
explicitly reversed Debenedetto and Nilsson
by revising RSA 507:7-e to define "party" to include only those
parties who are still in a lawsuit at the time of verdict or judgment. Despite the 4-0 recommendation of
the Senate Judiciary Committee to Adopt HB143 the full Senate
“tabled” the legislation.
Under Senate parliamentary rules the legislation can be taken off
the table for further floor action on or before June 7, 2007. If HB143 remains on the table after
June 7 any legislation regarding the same subject matter may not be
introduced until next year’s legislative session.
State Malpractice Screening Panels Apply to Federal
Cases too.
Plaintiffs in malpractice suits filed in the Federal
District Court of New Hampshire must submit their claims to the New
Hampshire Medical Malpractice Screening Panel, established by RSA 519:B, which became effective in August 2005. RSA 519:B-9(I)(a)
provides in part “(t)he panel process is a preliminary procedural
step through which malpractice claims proceed.” Relying on that language the
plaintiff in the Federal District Court
case of Plumb v. Lavery et al. argued
the state’s recently enacted medical malpractice screening panel
system was a procedural law, and did not apply in federal proceedings under
a doctrine established by the case of Erie v. Tompkins.
304 U.S. 64
(1938). Under the “Erie
Doctrine” federal courts sitting in diversity must apply the
substantive, but not the procedural laws of the states in which they sit. In 1981 the First Circuit Court of
Appeals rejected a similar claim that the Massachusetts Screening Panel
Statute was procedural. Feinstein v. Mass Gen. Hospital, 643 F.2d
880 (1st Cir. 1981). The New
Hampshire Federal District Court determined Feinstein
was binding precedent and therefore rejected Plumb’s argument that New
Hampshire’s Medical Malpractice Screening
Panels are merely procedural, and therefore inapplicable to claims brought
in federal court. Accordingly, the court referred Plumb’s claims to
the New Hampshire Screening Panel.
This ruling is significant and the five other malpractice suits
filed in the U.S. District Court for the District of New Hampshire since
August 2005 may now be referred to the screening panels before those
plaintiffs are permitted to proceed with their cases in federal court.
for more information on thESE topicS, please contact
one of the medical services group
attorneys: Peter mosseau, mark attorri, bradley holt
or jonathan lax, or visit the medical services group’s blog –
“differential diagnosis”
– or the
‘Articles’ and
‘e-alerts’ archives on our website at: http://www.nkms.com
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The contents of this message are intended for
general information purposes only, and should not be considered legal
advice or a legal opinion.
Anyone seeking specific legal advice should consult an attorney. The Supreme Judicial Court of the Commonwealth of Massachusetts indicates this may
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