New Hampshire Medical Malpractice Summary

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Statutes of Limitations

The two-year statute of limitations specific to medical malpractice, N.H. Rev. Stat. Ann. § 507-C:4 (1997), although still on the books, has been held to be unconstitutional. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). The general statute of limitations for personal injury or wrongful death is three years, and if the injury was not and could not reasonably have been discovered at the time of the act or omission, this statute runs from the time plaintiff discovers or should have discovered the injury and its causal relationship to the act or omission complained of. N.H. Rev. Stat. Ann. § 508:4 (1997). An infant or mentally incompetent person has two years from the removal of the disability in which to sue. N.H. Rev. Stat. Ann. § 508:8 (1997).

Contributory or Comparative Negligence

New Hampshire has adopted the modified doctrine of comparative negligence. Under this doctrine, a claimant’s action is barred only if his fault exceeds the combined fault of all defendants. N.H. Rev. Stat. Ann. § 507:7-d (1997). The claimant’s recovery is diminished in proportion to his degree of fault. Id.

Joint and Several Liability

Joint tortfeasors are generally jointly and severally liable. N.H. Rev. Stat. Ann. § 507:7-e (1997). However, any tortfeasor who is less than 50 percent at fault (and who did not knowingly take part in a common plan) is only severally liable, that is, liable only for that portion of the claimant’s damages equal to the tortfeasor’s share of fault. Id.

Contribution

A right of contribution exists among joint tortfeasors who are jointly and severally liable. N.H. Rev. Stat. Ann. § 507:7-f(I) (1997). A joint tortfeasor who has paid more than his adjudged proportionate share of the obligation may recover a judgment for contribution upon motion in the same action, if fault was apportioned therein to the party from whom contribution is sought, or by a separate action brought within one year. N.H. Rev. Stat. Ann. § 507:7-g (1997). A settling defendant may seek contribution only if the settlement was reasonable and extinguished the liability of the person from whom contribution is sought. N.H. Rev. Stat. Ann. § 507:7-f(II) (1997).

Vicarious Liability

No reported New Hampshire case has considered whether the theory of ostensible or apparent agency may be used to impose liability on a hospital for the negligence of physicians who are not its employees.

Expert Testimony

In New Hampshire, medical malpractice claimants must present expert testimony in support of their claims. N.H. Rev. Stat. Ann. § 507-E:2 (1997); Bissett v. Renna, ___ N.H. ___, 710 A.2d 404 (1998). However, the requirement set forth at N.H. Rev. Stat. Ann § 507-C:16 (1997), that in order to testify an expert must have been competent and duly qualified to have rendered care at the time the defendant did, has been held to be unconstitutional. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).

Damage Caps

The New Hampshire Supreme Court has held a $250,000 cap on non-economic damages in medical malpractice cases, N.H. Rev. Stat. Ann § 507-C:7 (1997), to be unconstitutional. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). It has held an $875,000 cap on non-economic damages in personal injury cases, N.H. Rev. Stat. Ann § 508:4-d (1997), to be unconstitutional. Brannigan v. Usitalso, 134 N.H. 50, 587 A.2d 1232 (1991).

Damages recoverable in a wrongful death action may not exceed $50,000, except where the party recovering is a spouse, child, parent, or any dependent relative. N.H. Rev. Stat. Ann. § 556:13 (1997). Damages are never awarded for loss of society and companionship in death cases, except that effective January 1, 1998, such damages may be awarded to a surviving spouse, up to a limit of $150,000. N.H. Rev. Stat. Ann. § 556:12 (Supp. 1997).

Punitive damages may not be awarded in any action unless specifically provided by statute. N.H. Rev. Stat. Ann. § 507:16 (1997).

Statutory Cap on Attorneys’ Fees

All fees for actions resulting in a settlement or judgment of $200,000 or more are subject to approval by the court. N.H. Rev. Stat. Ann. § 508:4-e (1997). Specific limits applicable to medical malpractice cases, N.H. Rev. Stat. Ann § 507-C:8 (1997), have been held to be unconstitutional. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).

Periodic Payments

The court may, in its discretion, order the periodic payment of damages. N.H. Rev. Stat. Ann. § 524:6-a (1997). However, this statute, which requires the judge to examine the defendant concerning his ability to pay, id., appears to be meant as a form of relief for defendants unable to pay a judgment except in installments. N.H. Rev. Stat. Ann § 507-C:7(IV) (1997), a periodic payment statute specific to medical malpractice cases, is unconstitutional. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).

Collateral Source Rule

The New Hampshire Supreme Court has held N.H. Rev. Stat. Ann § 507-C:7(I) (1997), the statute abolishing the collateral source rule in medical malpractice actions, to be unconstitutional. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).

Pre-Judgment Interest

In actions for personal injury or wrongful death, the clerk of the court must add to the damage award simple interest calculated from the date of filing until the date of judgment. N.H. Rev. Stat. Ann.§ 524:1-b (1997). Pre-judgment interest is imposed even if it extends the damage award beyond the maximum liability imposed by law. Id. The applicable interest rate is the discount rate on one-year United States Treasury bills plus two percent. N.H. Rev. Stat. Ann. § 336:1(II) (Supp. 1997).

Patient Compensation Funds and Physician Insurance

New Hampshire does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

In tort actions against the state, compensatory damages are limited to $250,000 per claimant and $2,000,000 per occurrence. Interest may be added, but not punitive damages. N.H. Rev. Stat. Ann. § 541-B:14 (1997). A personal injury or wrongful death claim against the state must be brought within three years of the alleged personal injury or death, provided that the state is notified by mail within 180 days of the alleged injury. Failure to give notice is not a bar unless the state is prejudiced. Id. If a lawsuit is filed against both the state and one of its employees, and the court finds that the state is responsible for the actions of the employee, it must dismiss the employee and allow the case to proceed solely against the state. N.H. Rev. Stat. Ann. § 541-B:9-a (1997).

Governmental units, including any county, city, town, or other corporate body within the state, may be held liable for damages in a bodily injury action arising out of the operation of its premises. N.H. Rev. Stat. Ann. § 507-B:2 (1997). The limitation period for actions against a governmental unit is three years from the time of the injury or from the time the injury and its cause were or reasonably should have been discovered. N.H. Rev. Stat. Ann. § 507-B:7 (1997). The clerk of the governmental unit must be notified by registered mail within sixty days after the injury. Id. The liability of a governmental unit for personal injuries is limited to $150,000 per claimant and $500,000 per occurrence. Interest may be added but not punitive damages. N.H. Rev. Stat. Ann. § 507-B:4 (1997). This limit also applies to an employee acting in good faith and within the scope of his office. Id.

If the state or a municipal subdivision purchases insurance that covers a claim, then its sovereign immunity is waived up to the insurance limits. N.H. Rev. Stat. Ann. § 412:3 (1998).

Arbitration

New Hampshire does not require that medical malpractice actions be referred to binding arbitration.

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Revision Date: February 6, 1998