99 Middle Street
Manchester, NH 03101


45 Milk Street
Boston, MA 02109

TEL: 617.778.7500

Two Monument Square
Portland, ME 04101



Contact us:
Peter Mosseau
Mark Attorri
Bradley Holt

Jonathan Lax





MEDICAL services group Update

Recent Developments that May Interest Friends and Clients of the Firm

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

To remove your name from the mailing list, send an email to mpouliot@nkms.com with ‘remove’ in the subject line.  To add a name to the mailing list, please send an email to mpouliot@nkms.com with ‘add’ in the subject line.

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 constitute advertising.