New Hampshire Medical Malpractice Laws

Between 2009 and 2018, New Hampshire paid out $23,843,000 in medical malpractice claims, a stark reminder of the devastating consequences of medical negligence. One particularly concerning case involved Manchester’s Dr. Yvon Baribeau, who faced numerous lawsuits stemming from his actions over two decades. Baribeau's malpractice resulted in the deaths and injuries of multiple patients, highlighting the need for strong legal protections for victims of medical negligence.

In the wake of such incidents, New Hampshire enacted strict laws concerning medical malpractice. With that in mind, this article aims to give a comprehensive overview of pertinent ordinances, including what constitutes malpractice, who can be sued, and what evidence is needed to prove a claim. It will also discuss important deadlines and recommend resources that may help victims pursue compensation.

What Qualifies as Medical Malpractice in New Hampshire?

In New Hampshire, legal claims involving medical errors are not referred to as "medical malpractice" but rather as "actions for medical injury." These are essentially the same as medical malpractice claims in other states and fall under the broader category of personal injury cases.

When the law mentions medical injuries, it encompasses any adverse outcome arising from or during the professional services provided by a healthcare provider. Thus, a plaintiff does not have to sustain a physical injury to file a medical injury claim. Grounds for such cases include:

• Performance of medical procedures without obtaining the patient's informed consent.

• Erroneous or failed diagnoses.

• Negligent maintenance of medical equipment or appliances.

• Premature abandonment of a patient or treatment plan.

New Hampshire courts have even ruled that performing surgery too hastily on a patient can constitute medical injury since it deviates from the standard of care expected of healthcare providers.

Moreover, state law does not differentiate between medical malpractice and negligence. For a valid medical injury claim, the victim must have suffered an injury and incurred expenses to be entitled to damages.

Who Can You Sue for Medical Malpractice in New Hampshire?

In the Granite State, one can file a lawsuit against healthcare providers for medical malpractice 

or, to use the state-specific term, medical injury. The definition of a healthcare provider in New Hampshire aligns with that of other states. It includes:

• Physicians

• Physician assistants

• Registered or licensed practical nurses

• Hospitals, clinics, or other healthcare agencies licensed by the state or otherwise authorized to provide medical care or services

• An officer, employee, or agent of any of the entities above acting within the scope of their employment. 

Exemptions

While the given list does not differentiate between private and public medical care providers, government employees and facilities can still be held liable for medical malpractice. However, there are limitations to the compensation that can be awarded in such cases. 

Specifically, lawsuits against government medical care providers can only result in a maximum of $475,000 per claimant, with a total cap of $3,750,000 for a single incident. Additionally, punitive damages are not allowed in these cases.

New Hampshire has another layer of protection for medical professionals in the form of Good Samaritan laws. These safeguard anyone who provides emergency aid from being held liable for their actions or omissions during the course of providing that care. However, certain conditions must be met for these protections to apply:

• Location and circumstances: The emergency care must have been administered at the scene of the emergency, after the victim was injured by a crime or delinquent act, or while the victim was being transported in an emergency vehicle.

• Intention: The emergency care must have been provided in good faith and without willful or wanton negligence.

• Lack of compensation: The emergency care must have been performed without any expectation of direct payment from the person receiving the care.

Medical Malpractice Liability Insurance Requirements

In New Hampshire, medical malpractice insurance is not mandated by law for healthcare providers. However, certain medical facilities may impose this requirement as a condition of employment for their physicians. This is done to safeguard the facility against potential financial liabilities arising from medical malpractice claims.

A specific obligation exists for healthcare providers who choose to self-insure for medical malpractice liability. These individuals must submit a detailed report outlining all opened, closed, and companion medical malpractice claims from the preceding year. This helps the insurance commission monitor the financial stability and risk management practices of self-insured providers.

What Is the Statute of Limitations in New Hampshire for Medical Malpractice Cases?

In New Hampshire, medical malpractice or medical injury claims, considered personal injury cases, have a three-year statute of limitations, beginning from the date the injury occurred. While an earlier state law set a two-year limitation period, it was deemed unconstitutional by the New Hampshire Supreme Court in the Carson v. Maurer case.

New Hampshire adheres to the "discovery rule" for medical injury claims, meaning the statute of limitations does not commence when the injury occurred if it was not or could not be detected at the time of the malpractice act. The three-year limitation period still applies, but it starts when the victim discovers or should have reasonably discovered the medical injury and its cause.

Notably, New Hampshire does not impose a statute of repose for medical malpractice claims. A statute of repose is a legal provision that sets an upper limit beyond which individuals are barred from filing certain claims, including medical malpractice, regardless of the circumstances.

What Do You Need to Prove in a New Hampshire Medical Malpractice Case?

In a standard medical malpractice claim, the plaintiff must demonstrate three essential elements through affirmative evidence:

• Standard of care: There is a recognized standard for the type of medical care provided by the defendant. This standard is determined by the actions and practices of other healthcare providers in similar situations.

• Breach of duty: The defendant failed to adhere to the established standard of care. This means that the provider's actions fell below the expected level of competence and skill for their profession or specialty.

• Causation: The defendant's breach of duty directly caused the plaintiff's injuries. This requires establishing a clear link between the provider's actions or omissions and the patient's harm.

In cases involving a lack of informed consent, the plaintiff must additionally prove that:

• Informed consent was not obtained: They did not receive enough details about the proposed medical treatment before it was administered. This information should have included potential risks, side effects, and alternative treatment options.

• Failure to obtain consent caused harm: The plaintiff must prove that the lack of informed consent directly caused their injuries. This means that the patient would have refused the treatment had they been fully informed of the possible consequences.

In medical malpractice cases, expert testimony is often crucial to establish the healthcare provider's negligence. New Hampshire law allows a variety of individuals to be considered expert witnesses based on their knowledge, experience, or education. Nonetheless, the court typically decides whether a witness qualifies as an expert. For instance, in Mankoski v. Briley, an orthopedic surgeon's testimony regarding the psychological state of a car accident victim was deemed admissible.

Patient testimonies and medical records are also common forms of evidence in medical malpractice lawsuits. However, the state provides some protection to healthcare providers by prohibiting the use of expressions of sympathy or compassion as evidence of liability.

Additionally, New Hampshire courts and juries are not bound by local care standards. Instead, they evaluate the evidence to determine whether the defendant acted with due care and adhered to the prevailing professional standards throughout the treatment. Factors such as the average skill of a practitioner in the relevant field and other relevant circumstances are also considered.

How Much Can You Sue for Medical Malpractice in New Hampshire?

The potential compensation for a medical malpractice claim in New Hampshire varies depending on several factors, including the extent of the plaintiff’s medical expenses, the severity of their emotional or psychological distress, and any additional punitive damages awarded due to the healthcare provider's severe negligence.

The ultimate amount, encompassing both economic and non-economic damages, is determined through court rulings or agreements reached during mediation. Consulting an experienced attorney can help one assess the value of their claim and navigate the process of securing fair compensation.

Types of Damages

As hinted above, two types of damages can be awarded in personal injury claims: economic and non-economic.

Economic damages are intended to reimburse the victim for the financial losses they have incurred as a result of the injury. These can include past, present, and future medical expenses, as well as lost wages and rehabilitation costs.

Non-economic damages, on the other hand, aim to compensate the victim for the intangible losses they have suffered, such as pain and suffering, emotional distress, and loss of enjoyment of life. New Hampshire has no cap on non-economic damages in medical malpractice cases, except when the claim is against government medical care providers.

Know that New Hampshire does not allow punitive damages in medical malpractice cases. However, courts may award "enhanced compensatory damages" when the medical care provider's actions are deemed wanton, malicious, or oppressive.

Negligence System

The Granite State adheres to the principle of comparative negligence in medical malpractice cases. This approach contrasts with contributory negligence, where a plaintiff's claim is entirely barred if they bear any responsibility for their harm.

Under New Hampshire's comparative negligence statute, a plaintiff's recoverable damages are diminished in proportion to their percentage of fault. For instance, if a plaintiff is found to be 20% at fault for their medical malpractice injuries, they would only be able to recover 80% of their total damages.

However, the law also establishes a threshold beyond which a plaintiff's claim is completely barred. If a plaintiff is determined to be 51% or more at fault for their injuries, they will not be entitled to compensation. This provision ensures that plaintiffs bear a significant portion of the responsibility for their harm before seeking damages.

Methods of Obtaining Compensation

Generally, compensation for medical malpractice is recovered through litigation. While this is the conventional route, mediation presents a viable alternative for claimants seeking an out-of-court resolution. It offers a more collaborative or less adversarial approach, potentially leading to faster settlements.

Prior to recent legal changes, state laws mandated pre-trial panels to evaluate the merits of medical malpractice claims. These panels comprised medical experts and legal representatives who reviewed the case evidence and provided non-binding opinions on the likelihood of success at trial. The objective was to promote early resolution by encouraging settlements and reducing the burden on the court system.

The repeal of pre-trial panel mandates has shifted the dynamics of medical malpractice claims. With the absence of structured evaluations, claimants and healthcare providers must now navigate the complexities of mediation with less guidance. This transition underscores the role of sound legal counsel in finding the most advantageous path to resolution, whether through mediation or litigation. 

How Much Does It Cost to Pursue a Medical Malpractice Case in New Hampshire?

The cost of pursuing a medical malpractice claim can significantly depend on the case's specific circumstances. However, there are some general expenses:

• Attorney fees: Most medical malpractice lawyers charge a contingency fee, which means they will only receive payment if they successfully obtain a settlement or verdict for their client. The contingency fee is a percentage of the total damages awarded, and it can range from 25% to 40%.

• Court filing fees: These are what an individual must pay to file a lawsuit with the court. They may vary per jurisdiction but are usually between $100 and $500.

• Expert witness fees: These are for hiring medical professionals or other specialists who can provide evidence to support plaintiff claims. Their fees may depend on their experience and the case’s complexity. One can expect to pay $500 to $1,000 per hour.

In addition to these standard expenses, an individual may incur costs associated with acquiring medical records, conducting depositions, and arranging travel and accommodations for their legal team and expert witnesses. Since the figures above are just estimates, the actual cost of a medical malpractice case may be higher or lower.

Legal Resources for Medical Malpractice Victims in New Hampshire

This section highlights organizations, law firms, and programs committed to providing affordable or no-cost legal assistance to eligible individuals. These entities focus on civil law matters, including medical malpractice claims, which fall under the category of personal injury lawsuits.

New Hampshire Free Legal Answers

New Hampshire Free Legal Answers is an online platform that advises qualified individuals facing civil legal issues. This initiative was established under the American Bar Association's Pro Bono and Public Service Standing Committee. Eligible individuals can post questions about specific aspects of their civil cases, and volunteer attorneys licensed in New Hampshire will respond online. The clinic addresses a range of civil law topics, including health and disability.

Unlike traditional legal consultations, New Hampshire Free Legal Answers allows individuals to ask follow-up questions to the volunteer attorney who initially answered their query. This fosters a more comprehensive and personalized legal guidance experience.

603 Legal Aid

603 Legal Aid is a nonprofit organization providing free legal services to low-income families and individuals in New Hampshire. Their services include over-the-phone consultations, pro bono court representation, and referrals to other volunteer attorneys or legal aid programs. The organization's network of volunteer attorneys can also assist clients in completing legal forms and letters.

603 Legal Aid also offers a legal clinic program where individuals can receive advice or information on specific topics. It provides an opportunity to meet one-on-one with volunteer attorneys who have expertise in the topic of interest.

New Hampshire Bar Association Lawyer Referral Service>

The NHBA Lawyer Referral Service offers two programs to assist individuals with their legal needs. The Modest Means Program matches applicants with nearby legal counsel who have experience handling their specific type of civil case. If an applicant does not qualify for the program or is not seeking an attorney, the program's intake and referral team can connect them with relevant organizations or resources.

On the other hand, the Lawyer Referral Service's Full Fee Program guides prospective clients in selecting local legal counsel or resources appropriate for their situation. The LRS frequently handles cases involving personal injury or malpractice.

New Hampshire Legal Aid

New Hampshire Legal Aid is a nonprofit catering to low-income residents. The organization primarily offers legal information and self-help resources on its website, covering various topics. For individuals seeking to fight for themselves in court, New Hampshire Legal Aid has developed a game-like app that guides them through the process of self-representation.

In addition to its online resources, New Hampshire Legal Aid collaborates with other legal aid organizations to maintain a network of volunteer attorneys who provide pro bono or reduced-cost legal representation and consultations to eligible applicants.