New Hampshire Medical Malpractice Laws

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in New Hampshire; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in New Hampshire. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Weighing whether or not to bring a medical malpractice action can be a difficult and cumbersome process. You are likely in the midst of healing from your injury and now you are faced with the prospect of extensive litigation against a health care provider that you entrusted with your life.

Medical malpractice litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

Suing for Medical Malpractice in New Hampshire

If you were injured due to the negligence of a health care provider, you may be in a position to file a medical malpractice lawsuit. The law in New Hampshire places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in New Hampshire allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, unlike many other states, the law in New Hampshire does not cap those damages. Timing is everything when filing a medical malpractice claim in New Hampshire as the law places a statute of limitations on how long you may wait to bring your claim.

How long do I have to file a medical malpractice case in New Hampshire?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in New Hampshire mandates that an action for personal injury must be filed within three years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a credible cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that New Hampshire law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover, or should have discovered, your injury, the three-year window to file your lawsuit begins. If the lawsuit is being brought against a federally-funded physician or medical facility, the case must be filed within two years of the injury occurring.

In New Hampshire Medical Malpractice Cases, who is Responsible?

The law in New Hampshire considers medical malpractice to be a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.

A health care provider is defined as any person, corporation, facility, or institution licensed by the state or otherwise lawfully providing health care services, including, but not limited to:

• Physicians
• Hospitals
• Offices
• Clinics
• Health centers or other health care facilities
• Dentists
• Nurses
• Optometrists
• Pharmacists
• Podiatrists
• Physical therapists
• Mental health professionals
• Any officer, employee, or agent of these acting in the course and scope of employment
• Any agency related to or supportive of health care services [2]

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove:

• The health care provider owed you a duty to act as a reasonably competent physician would act under the same or similar circumstances.
• The health care provider breached that duty.
• You were injured.
• Your injury was caused by the health care provider’s breach of duty.

What if I am partially to blame? Can I Still Recover Money for Indiana Medical Malpractice?

New Hampshire, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, New Hampshire is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [3]

In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor never should have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why New Hampshire decided to adopt a modified system.

Are there medical malpractice recovery caps in New Hampshire?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are different types of damage awards you may receive in New Hampshire:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation to you. The law in New Hampshire does not allow an award of punitive damage unless stated by statute. [4] Actions that allow for awards of punitive damages include: credit services organization breach of contract; wireless telephone cloning; wiretapping and eavesdropping; consumer credit reporting. Currently personal injury claims are not an included punitive damage category.

In the past, the law in New Hampshire attempted to place a limit on the damages you could receive from a court. The law had placed a $250,000 limit on non-economic damages and a limit of $875,000 on non-economic damages. Both of those limitations were later challenged and held to be unconstitutional.

Damage caps no longer exist in New Hampshire.

Expert witness reporting and testimony

An expert witness is a person who is a specialist in a subject who may present their expert opinion without having been a witness to any occurrence relating to the claim being brought before the court.

When a medical issue is beyond the capacity of the people of common experience and knowledge to form a valid judgment by themselves, expert evidence is required to prove medical causation in claims involving physical injuries. In medical malpractice cases, the general rule is that the proximate cause between the negligence and the injury must be established through expert testimony. The rule applies if any inference of the requisite causal link must depend on observation and analysis outside the common experience of jurors. [5]

In actions for medical injury, experts must testify: (1) as to the standard of reasonable professional practice; (2) that the medical care provider failed to act in accordance with this standard; and (3) as a proximate result thereof, the plaintiffs suffered injuries which would not otherwise have occurred.

Are some parties immune from medical negligence cases?

Some states provide absolute immunity to their municipalities, cities in towns when it comes to actions of personal injury. However, the law in New Hampshire allows those actions to be brought but does provide a limit on the amount of damages that may be awarded. If an action is brought against the state of New Hampshire, compensatory damages are capped at $2,000,000 per occurrence.

Settling medical malpractice cases in New Hampshire

Many medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of mandatory pretrial mediation or screening panel and New Hampshire is no different.

The parties in a medical malpractice case have the voluntary option of having the case heard by a pre-litigation screening panel. If the parties decide to use the panel, the case may still go to a standard jury trial at a later date, but with certain restrictions. If the panel unanimously votes in favor of either the plaintiff or defendant and the losing party takes the case to court, the jury will be informed of the panel’s decision. [6]

Once a medical malpractice lawsuit is filed, the clerk of the superior court notifies the chief justice of the superior court. Within 14 days, the chief justice must choose a retired judge, a person with judicial experience, or another qualified person from a list maintained by the chief justice to serve as chairperson of the panel to screen the claim. Once notification of the chief justice’s choice of chairperson, the clerk must then notify the chairperson and the parties, and provide them with the lists of health care practitioners, health care providers, and attorneys. The chairperson will then choose two or three additional panel members from the lists as follows: one attorney; one health care practitioner; and if the claim involves more than one person accused of professional negligence the chairperson may choose a fourth panel member who is a health care practitioner.

The lawmakers of New Hampshire felt that the availability and affordability of insurance against liability for medical injury is essential for the protection of patients as well as assuring availability of and access to essential medical and hospital care. In order to contain the costs while promoting the availability and affordability of insurance against liability for medical injury, the panel was created in order to resolve lawsuits as early and inexpensively as possible.

Litigating medical negligence cases in New Hampshire

After first having your case presented in front of a medical review panel and possibly undergoing voluntary alternative dispute resolution, if a settlement was not ultimately reached, your claim will likely advance to trial.

A claim for medical malpractice in Indiana is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

To begin a civil action in New Hampshire, you must file a Complaint with the clerk of the court. The Complaint should include the proper name of every plaintiff and of every defendant as well as a statement of facts constituting the cause of action.

After the Complaint is served upon all named defendants, each defendant has 30 days to provide an Answer to the complaint. The Answer must specifically admit or deny each allegation listed in the Complaint. A general denial of all allegations in the Complaint is insufficient. The answering party must expressly state when it does or does not have knowledge or information sufficient to form a belief as to the truth of the allegation. That statement will have the effect of a denial.

Preparing for Litigation

After the Complaint and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission [7]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition. At the trial any part of a deposition, if admissible under the rules of evidence, may be used against any party who was present at the deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

When your physical condition is in controversy, the court in which the action is pending may order you to submit to a physical examination. In order for the examination to take place, an order must be made based upon good cause. The examination will serve to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

As mentioned, the law in New Hampshire gives the option to anyone involved in a medical malpractice place to have the case heard by a screening panel prior to reaching the trial stage of litigation.

Settlement is permitted at any time prior to the lawsuit proceeding to trial.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. In New Hampshire, a jury that hears a case will render a verdict based upon presented evidence. The jury will determine which party is at fault and how much compensation for damages is appropriate.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in Indiana allows each side to have three peremptory challenges where jurors may be eliminated from consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In New Hampshire, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of New Hampshire
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witnesses will be questioned by the plaintiff’s attorney and then likely cross-examined by the opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. Most appeals taking place in New Hampshire must be filed within 30 days from notice of the judgment or decision.

How to find the best New Hampshire Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury and moving on with your life.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured while also attempting to make sure that the negligent actions taken by the health care provider never happen again. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. The medical bills can be astronomical, making adequate compensation all the more important.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your time table, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. Do your due diligence and interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to yours. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency basis.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Be careful of false promises. An attorney or firm who feels your case is a “slam dunk” is likely just trying to secure your business and should raise a red flag. Medical malpractice cases are complex and far from a sure thing. Make certain that an attorney or firm is serious about dedicating the requisite time to put you in a position to have a successful outcome.

Some notable medical malpractice law decisions from New Hampshire

These cases represent awards to plaintiffs in medical malpractice cases in New Hampshire. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Jodoin v. Johnson

A lawsuit was filed by plaintiffs Noel and Adam Jodoin against defendant Dr. Ellen Johnson based upon a claim that the defendant misread a CT scan that resulted in the patient suffering more severe effects from a stroke.

In 2007, Noel Jodoin went to the emergency room after experiencing a prolonged and severe headache. Noel then started experiencing some neurological effects and slurred speech and was given a CT scan, which was later interpreted by the defendant as providing no evidence of acute hemorrhage, mass lesion, mass effect, acute ischemia, or extra axial fluid collections. Noel’s condition worsened after several more hours at the hospital and was ultimately flown to Brigham and Women’s Hospital in Boston, where another CT scan was performed. The scan showed bilateral intracranial hemorrhages with extension into subarachnoids from the superior sagittal sinus caused by thrombosis or stroke.

In the lawsuit, the Jodoin’s claim that the defendant reached the standard of care by failing to accurately read Noel’s head CT and by failing to communicate with Noel’s care providers. To the extent that the defendant noted abnormalities in the CT, she negligently dismissed them as not being clinically significant. At trial it was stated that had the defendant properly interpreted the results, Noel would have been treated in a timely manner and likely would not have experienced the severity of symptoms from which she suffered.

Noel continues to need extensive rehabilitative therapy and services including having to re-learn how to take care of her activities of daily living.

A jury agreed with the plaintiffs and awarded a $5 million verdict in their favor.

Hinz v. Leefmans

A lawsuit was filed by plaintiff Randolph Hinz against defendant Dr. Eric Leefmans based upon a claim stating that the doctors treated the fractures in his leg before stabilizing his condition by giving him blood. The plaintiff further claimed that his leg surgery could have waited until after his more serious blood loss was treated and that blindness was the consequence of failing to wait.

Hinz was taken to Concord Hospital after being involved in a roll-over car accident which threw him 150 feet from the vehicle. He suffered multiple broken bones and a collapsed lung which resulted in blood loss of 30 to 40 percent.

Because of the blood loss and failure to restore the blood, the nerves in Hinz’s brain controlling sight were deprived of oxygen and died.

A jury found Dr. Eric Leefmans 100% at fault for Hinz’s injuries and awarded $1.75 million.

Footnotes

[1] N.H. Rev. Stat. Ann. § 507-C:4

[2] N.H. Rev. Stat. Ann. § 332-I:1

[3] N.H. Rev. Stat. Ann. § 507:7-d

[4] N.H. Rev. Stat. Ann. § 507:16

[5] N.H. Rev. Stat. Ann. § 507-E:2

[6] N.H. Rev. Stat. Ann. § 519-B

[7] Rules of the Superior Court of New Hampshire