New Hampshire Medical Malpractice Laws

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in New Hampshire

New Hampshire does not have a statute of repose with respect to medical malpractice claims. Accordingly, in theory, there is no definitive outer limit for when a medical malpractice claim may be brought when the Discovery Rule is relied upon in bringing an action.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in New Hampshire

Claims against the State

Tort claims against the state, any state agency, or any employee of the state are governed byRSA § 541-B:14. To the extent provided for in the statute and subject to the limitations therein, New Hampshire has waived sovereign immunity with respect to tort claims. The New Hampshire Supreme Court explained “the legislature intended this chapter to govern all claims against the State and/or its employees….” Laramie v. Stone, 999 A.2d 262, 277 (N.H. 2010). The Court added:

The broad language of the statute considered as a whole, its comprehensive nature establishing procedures for filing claims with the board of claims and/or the superior court, and its legislative history support the conclusion that the legislature intended that RSA chapter 541-B govern all actions for damages against state employees unless otherwise specifically stated. Id.

Claims against the state brought under RSA § 541-B:14 must “be brought within 3 years of the date of the alleged bodily injury, personal injury or property damage or the wrongful death resulting from bodily injury.” RSA § 541-B:14 IV. The statute further provides:

As a condition precedent to commencement of the action, the agency shall be provided written notice within 180 days after the time of the injury or damage as to the date, time, and location the injury or damage occurred. The lack of written notice shall not bar a claim unless the agency can show by a preponderance of the evidence that its ability to defend against the action was substantially prejudiced thereby. Such notification may be made either by the claimant or an appropriate representative of the claimant.

Damages against the state or its employees are capped at $475,000 per claimant and $3,750,000 per any single incident.RSA 541-B:14 I. Punitive damages are not available in actions against the state or its employees. Id.

Claims against Governmental Units

A governmental unit is “any political subdivision within the state including any county, city, town, precinct, school district, chartered public school, school administrative unit, or departments or agencies thereof, or any other body corporate and politic within the state, but does not include the state or any department or agency thereof.” RSA § 507-B:1 I.

Any action brought under RSA § 507-B, must be “commenced within 3 years after the time of the injury or damage, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.” RSA § 507-B:7. The statute also sets forth the following:

As a condition precedent to commencement of the action, the clerk of the governmental unit shall be notified by registered mail within 60 days after the time of the injury or damage or discovery of the injury or damage, if it could not reasonably have been discovered at the time of the occurrence of the injury or damage, as to the date, time and location where the injury or damage occurred, and provided that in any case where lack of written notice, actual knowledge or reasonable opportunity to obtain knowledge of any injury or damage within the 60-day period is alleged by the governmental unit, the burden of proof shall be on the governmental unit to show that it was substantially prejudiced thereby

Damages against a governmental unit are capped at $275,000. RSA § 507-B:4 I. The statute states that the “limit applies in the aggregate to any and all actions to recover for bodily injury, personal injury or property damage arising out of bodily injury, personal injury or property damage sustained by one person in a single incident or occurrence.” Id. In addition, “[l]iability of a governmental unit for bodily injury, personal injury or property damage sustained by any number of persons in a single incident or occurrence is limited to $925,000.” Id. Punitive damages are not available in actions against a governmental unit. RSA § 507-B:4 II. Finally, the jury may not be informed about the damage caps, “but the court shall abate any verdict to the extent it exceeds the limits” provided for in the statute. RSA § 507-B:4 III.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in New Hampshire

New Hampshire has enacted a general Good Samaritan law that is codified in RSA § 508:12. The statute provides immunity from civil damages for individuals who voluntarily and without receiving direct compensation render emergency care at the scene of an accident. It states:

If any person in good faith renders emergency care at the place of the happening of an emergency or to a victim of a crime or delinquent act or while in transit in an ambulance or rescue vehicle, to a person who is in urgent need of care as a result of the emergency or crime or a delinquent act, and if the acts of care are made in good faith and without willful or wanton negligence, the person who renders the care is not liable in civil damages for his acts or omissions in rendering the care, as long as he receives no direct compensation for the care from or on behalf of the person cared for.

Notice that the immunity granted by New Hampshire’s Good Samaritan law does not apply if the rendering of assistance constitutes “willful or wanton negligence.” Id. Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to willful or wanton misconduct.

In addition, the statute requires Good Samaritans to turn the injured person over to the care of a medical professional as soon as possible. Id. The statute provides: “Any person rendering emergency care shall have the duty to place the injured person under the care of a physician, nurse, or other person qualified to care for such person as soon as possible and to obey the instructions of such qualified person.”

New Hampshire also has a Good Samaritan law for medical professionals in specific situations that is codified in RSA § 508:12-a. For instance, a medical professional covered by the statute is immune from suit for damages in the following situation:

No licensed physician, registered nurse or hospital shall be liable in a suit for damages as a result of any act or omission related to advice, consultation or orders given in good faith to emergency medical care providers licensed under RSA 153-A, by radio, telephone or other remote means of communication under emergency conditions and prior to arrival of the patient at the hospital, clinic, office, or other health facility from which the emergency communication to the emergency medical care provider is made, unless the act or omission was a result of gross negligence or willful misconduct.

The statute provides for similar immunity from suit in three additional specific situations involving medical professionals.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the 2015 New Hampshire Revised Statutes. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title LII—Actions, Process, and Service of Process.

V.Required Elements of a Medical Malpractice Complaint

Basic Elements

In New Hampshire, there is only one recognized form of action, and it is known as a “civil action.” Rule 4(a) of the Rules of the Superior Court of the State of New Hampshire. According to Rule 4(b), to initiate a civil action, “the plaintiff files with the court: (i) the Complaint; (ii) an Appearance (including the plaintiff’s representative by name, address, email address, telephone number, and New Hampshire Bar Association identification number); and (iii) the filing fee.” Additionally, for statute of limitations purposes, “an action shall be deemed commenced on the date the Complaint is filed.” Id.

Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 6(a). The Rule describes pleadings as “the written statements by the parties of the facts constituting their respective claims and defenses.” Under Rule 8(a), a complaint:

shall contain a statement of the material facts known to the pleading party on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitled; provided, however, that in any personal action a pleading shall not allege the amount of damages claimed, but shall state only that the damages claimed are within the jurisdictional limits of the court. Relief in the alternative or of several different types may be demanded.

If the plaintiff seeks a trial by jury, it must be stated in the complaint.Rule 8(b) states:

A plaintiff entitled to a trial by jury and desiring a trial by jury shall so indicate upon the first page of the Complaint at the time of filing, or, if there is a counterclaim, at the time plaintiff files an Answer to such counterclaim. Failure to request a jury trial in accordance with this rule shall constitute a waiver by the plaintiff thereof.

Notice Pleading

New Hampshire is a notice pleading state. Pike Industries v. Hiltz Construction, 143 N.H. 1, 3 (N.H. 1998). The New Hampshire Supreme Court explained that “New Hampshire maintains a system of notice pleadings.” Id. The Court added: “It is well settled that a defendant is entitled to be informed of the theory on which the plaintiffs are proceeding and the redress that they claim as a result of the defendant’s actions.” Id. The Supreme Court instructed that “we take a liberal approach to the technical requirements of pleadings.” Porter v. City of Manchester, 151 N.H. 30, 43 (N.H. 2004). But the Court cautioned that in situations where “the plaintiff has suffered damages that are not readily apparent from the facts alleged, those damages should be specifically stated.” Id.

It should be noted that while the New Hampshire Supreme Court self-identifies as a notice pleading state the actual requirements imposed under its system are likely more stringent than readers who are familiar with notice pleading requirements in other states are accustomed to. Most other notice pleading states simply require “a short and plain statement of the claim showing that the pleader is entitled to relief.”

For instance, that is all Iowa, a notice pleading state, requires in accordance with Rule 1.402(2)(a); in fact, virtually all other notice pleading states contain that precise language or a slight variation in their applicable procedural rules. Furthermore, the Iowa Supreme Court explained that the “plaintiff does not need to identify a specific legal theory but must simply state the prima facie elements of a claim so as to give fair notice to the defendant. The pleading of ‘ultimate facts is clearly not required.” [emphasis supplied] Stessman v. American Black Hawk Broadcasting Company, 416 N.W.2d 685, 686 (Iowa 1987).

In contrast, notice that the New Hampshire Supreme Court instructed: “It is well settled that a defendant is entitled to be informed of the theory on which the plaintiffs are proceeding and the redress that they claim as a result of the defendant’s actions.” [emphasis supplied] Pike Industries v. Hiltz Construction, 143 N.H. 1, 3 (N.H. 1998). Most other notice pleading states are in line with Iowa’s position on the issue rather than New Hampshire’s.

Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms. Again, it is worth pointing out that the foregoing resembles the pleading requirements in New Hampshire despite the fact the state’s Supreme Court identifies its system as notice pleading.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VI. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in the determination of whether a prospective expert medical witness is qualified to provide expert testimony in a medical malpractice case is Rule 702 of the New Hampshire Rules of Evidence. It provides that a witness may be deemed qualified to provide expert opinion testimony “by knowledge, skill, experience, training, or education….”

The New Hampshire Supreme Court instructed: “In deciding whether to qualify a witness as an expert, the trial judge must conduct an adequate investigation of the expert’s qualifications.” Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, 667 (2006). The Supreme Court added: “Because the trial judge has the opportunity to hear and observe the witness, the decision whether a witness qualifies as an expert is within the trial judge’s discretion.” Id. As such, the trial court has wide discretion in determining whether to qualify a witness as an expert, and the decision will be reversed on appeal only upon a showing that it was “a clearly unsustainable exercise of discretion.” Goudreault v. Kleeman, 965 A.2d 1040, 1048 (N.H. 2009).

Under New Hampshire law, an expert witness need not specialize in the same practice area as the defendant against whom he or she will provide opinion testimony. Id. at 1049. The Supreme Court stated that “we have held that ‘[t]he lack of specialization in a particular medical field does not automatically disqualify a doctor from testifying as an expert in that field.’” [internal citation omitted] Id.
In fact, the New Hampshire Supreme Court provides wide latitude on who may qualify as an expert witness with respect to a particular issue. For example, the Supreme Court held that an “orthopedic surgeon is not per se unqualified to render expert testimony on the psychological health of a patient.” Mankoski v. Briley, 137 N.H. 308, 312 (1993). In Mankoski, the trial court ruled that the orthopedic surgeon was unqualified to testify as an expert on the subject of a patient’s psychological health because he was not a psychiatrist or psychologist. The Supreme Court ruled that the trial court clearly abused its discretion. Id.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in New Hampshire

Rule 702 of the New Hampshire Rules of Evidence is the starting point for determining whether expert testimony is admissible. State v. Cressey, 137 N.H. 402, 404 (1993). The Supreme Court instructed that to “evaluate the admissibility of [a witness’] expert testimony, we must return to the basic evidentiary rules regarding experts.” Id. That is, the Court cited Rule 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise if:

• the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
• the testimony is based on sufficient facts or data;
• the testimony is the product of reliable principles and methods; and
• the expert has reliably applied the principles and methods to the facts of the case.

In 2002, the New Hampshire Supreme Court adopted the Daubert standard in Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609, 614 (2002), when it announced: “Today, we apply the Daubert standard to New Hampshire Rule of Evidence 702.” The Supreme Court discussed the admissibility of expert testimony in great detail and provided prospective guidance for trial courts when making admissibility determinations as follows:

Rule 702 states that a qualified expert may offer testimony if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Thus, expert testimony “must rise to a threshold level of reliability to be admissible. For many years, New Hampshire followed Frye, which held that expert opinion must “have gained general acceptance in the particular field in which it belongs” to be admissible. Following the enactment of the Federal Rules of Evidence, the United States Supreme Court abandoned the Frye test in Daubert, establishing a more flexible standard of reliability that places special emphasis on four factors: (1) “whether a theory or technique … can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known or potential rate of error” of a particular technique; and (4) the Frye “general acceptance” test….

Today, we apply the Daubert standard to New Hampshire Rule of Evidence 702….

To the extent that the trial court relied on the Daubert factors, it erred by focusing upon the reliability of the expert’s conclusion, rather than the reliability of the underlying technique used to reach that conclusion…. In essence, the trial court reached its own conclusion regarding the validity of the expert’s opinion. However, “[o]bjections to the basis of an expert’s opinion go to the weight to be accorded the opinion evidence, and not to its admissibility. The appropriate method of testing the basis of an expert’s opinion is by cross-examination of the expert….”

The proper focus for the trial court is the reliability of the expert’s methodology or technique. The trial court functions only as a gatekeeper, ensuring a methodology’s reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert’s testimony. Thus, the trial court must “decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case….”

In determining reliability, the court may find the four factors outlined in Daubert to be helpful. These factors consider: (1) whether the results of the differential etiology used in this fire investigation are capable of being tested; (2) whether the use of such a differential etiology has been subjected to peer review and publication; (3) the error rate of fire investigation conclusions based upon this differential etiology, and (4) whether there is general acceptance in the scientific community of the use of such etiology in fire investigations. These factors, however, are not a “definitive checklist or test.” Because the Daubert analysis is flexible and tied to the facts of a given case, a methodology may be reliable even if it fails to meet one or more of these factors. Likewise, in an appropriate case the trial court may fashion additional factors to determine the reliability of the testimony. In no case, however, may such factors be based upon the credibility or weight the court attributes to the expert’s conclusions. [internal citations omitted] Id. at 612-617.

VII. Comparative Negligence

Modified Comparative Negligence with 51% Bar Rule

By statute, New Hampshire uses modified comparative negligence with a 51% bar rule. RSA § 507:7-d. The statute provides that a plaintiff’s contributory fault does not bar recovery, stating:

Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff’s legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant….

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than the defendant or defendants being sued by the plaintiff—the 51% bar rule. If the plaintiff’s percentage share of determined fault is greater than the total of all defendants (i.e., plaintiff’s contributory negligence is determined to be 51% or greater), then the plaintiff is not entitled to any recovery.

Under contributory negligence (the doctrine that New Hampshire followed prior to implementing the current doctrine of modified comparative negligence), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury. Contributory negligence is extremely unforgiven. If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.

In doing away with contributory negligence, the New Hampshire Supreme Court observed: “The New Hampshire legislature first enacted a comparative negligence statute in 1969, motivated by a deep conviction that the contributory negligence rule was so basically unfair and illogical that it should have no further place in the State’s law.” Goudreault v. Kleeman, 965 A.2d 1040, 1055 (N.H. 2009). It is for this reason that nearly every state has abandoned it. Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million. Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault). That is the result for under New Hampshire’s current doctrine of modified comparative negligence. In contrast, under contributory negligence, the plaintiff recovers nothing. The plaintiff’s 10% allocation of fault serves as a complete bar to recovery. That is the stark difference between the two doctrines.

Comparative negligence is a fault and damages allocation system. Under New Hampshire’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. RSA § 507:7-d. Fault is determined and apportioned among the plaintiff and all defendants, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault. Id. The statute provides that “the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff….” Id.

For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award. If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because New Hampshire imposes the 51% bar rule.

The defendant or defendants attempting to invoke the defense of comparative negligence has the burden of proof. RSA § 507:7-d. The statute states: “The burden of proof as to the existence or amount of fault attributable to a party shall rest upon the party making such allegation.”

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Fortunately for plaintiffs pursuing medical malpractice claims, New Hampshire follows the combined comparison approach. The statute states that a plaintiff is barred from any recovery “if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant.” RSA § 507:7-d. This language provides for the combined comparison approach.

Under New Hampshire law, the plaintiff in the foregoing example would be entitled to recover damages since the plaintiff’s share of negligence is less than the defendants’ aggregate share on a combined comparison basis (40% versus 60% for the defendants).

VIII. Limitation on Noneconomic Damages

As of the date of this article, New Hampshire does not impose a cap on noneconomic damages that may be recovered in a medical malpractice action. The Legislature has attempted to cap noneconomic damages on two occasions, but the New Hampshire Supreme Court has held both attempts to be unconstitutional.

RSA § 507-C:7 imposed a $250,000 cap on noneconomic damages specifically in medical malpractice cases. However, the New Hampshire Supreme Court unanimously held “that RSA 507-C:7 II (Supp. 1979) denies medical malpractice plaintiffs the equal protection of the law guaranteed by the New Hampshire Constitution,” and thus the statute is unconstitutional. Carson v. Maurer, 120 N.H. 925, 943 (1980).

Next, the Legislature passed legislature that imposed an $875,000 cap on noneconomic damages in personal injury cases in general. RSA § 508:4-d. Once again, the New Hampshire Supreme Court unanimously struck it down. Brannigan v. Usitalo, 134 N.H. 50, 58 (1991). In Brannigan, the Supreme Court reiterated its reasoning in Carson and its applicability to the present case.

First, and most important, the language of Carson evinces a rejection of the cap itself, and not merely a concern that medical malpractice victims were subject to a cap while other tort victims were not. We agreed with the plaintiffs’ contention that the cap “preclude[d] only the most seriously injured victims of medical negligence from receiving full compensation for their injuries,” and focused on the distinction “between malpractice victims with non-economic losses that exceed[ed] $250,000 and those with less egregious non-economic losses.”

Moreover, we stated at the outset that “the right to recover for personal injuries is … an important substantive right,” without distinguishing medical malpractice injuries from other personal injuries. In the years following Carson, we have consistently interpreted the Carson standard as applicable to all types of personal injuries….

RSA 508:4-d (Supp. 1990) is hereby declared unconstitutional. [emphasis in original] [internal citations omitted] Id. at 57-58.

IX. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in New Hampshire

New Hampshire has a couple of attorney fee provisions of which plaintiffs should be aware. First, by statute, New Hampshire requires: “All fees and costs for actions, resulting in settlement or judgment of $200,000 or more, shall be subject to approval by the court.” RSA § 508:4-e III.

Although RSA § 507-C:8 provides for sliding-scale contingent fee limitations specific to medical malpractice cases, the New Hampshire Supreme Court concluded that the statute “unfairly burdens malpractice plaintiffs and, to a lesser extent, their attorneys.” Carson v. Mauer, 120 N.H. 925, 945 (1980). Accordingly, the Supreme Court announced: “We therefore hold that RSA 507-C:8 (Supp. 1979) is unconstitutional.” Id. Thus, as of the date of this article, there are no contingent fee caps in effect specific to medical malpractice actions.

RSA § 508:4-e II provides: “No attorney shall enter into such a contingent fee arrangement with his or her client without first advising the client of his or her right and affording the client an opportunity to retain the attorney under an arrangement whereby the attorney would be compensated on the basis of the reasonable value of his or her services.”

In addition, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in New Hampshire under Rule 1.5 of the New Hampshire Rules of Professional Conduct. Rule1.5(a) states:

A lawyer shall not enter into an agreement for, charge, or collect an illegal or unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee or expenses include the following:

• the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
• the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
• the fee customarily charged in the locality for similar legal services;
• the amount involved and the results obtained;
• the time limitations imposed by the client or by the circumstances;
• the nature and length of the professional relationship with the client;
• the experience, reputation, and ability of the lawyer or lawyers performing the services; and
• whether the fee is fixed or contingent.

X. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

New Hampshire is among the states that have enacted an “I’m Sorry” law. It is contained in RSA § 507-E:4 II and is specific to healthcare providers. The statute shields healthcare providers who communicate statements of sympathy or similar sentiments made by a healthcare provider to the alleged victim or family by making such communications inadmissible as evidence of an admission of liability in a medical injury action. The statute reads as follows:

A statement, writing, or action that expresses sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual’s family is inadmissible as evidence of an admission of liability in a medical injury action.

The term ‘family’ means “means spouse, parent, grandparent, stepfather, stepmother, child, adopted child, grandchild, brother, sister, half-brother, half-sister, father-in-law, or mother-in-law.” RSA § 507-E:4I

It is important to note that “a statement of fault, negligence, or culpable conduct that is part of or made in addition to a statement, writing, or action described in paragraph II” is not shielded from admissibility and thus may be used as evidence against the healthcare provider. RSA § 507-E:4III.

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in New Hampshire understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

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[1] In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.