TITLE LII
ACTIONS, PROCESS, AND SERVICE OF PROCESS

Chapter 507-C
ACTIONS FOR MEDICAL INJURY

Section 507-C:1


RSA 507-C has been held unconstitutional in the case of Carson v. Maurer (1980) 120 N.H. 925, 424 A.2d 825. Community Resources for Justice, Inc. v. City of Manchester (2007) 154 N.H. 748, 917 A.2d 707, overrules Carson v. Maurer to the extent that it did not employ the new middle tier scrutiny standard articulated in Community Resources for Justice, Inc. v. City of Manchester.
    507-C:1 Definitions. –
As used in this chapter:
I. "Action for medical injury" means any action against a medical care provider, whether based in tort, contract or otherwise, to recover damages on account of medical injury.
II. "Medical care provider" means a physician, physician's assistant, registered or licensed practical nurse, hospital, clinic or not-for-profit home health care agency licensed by the state or otherwise lawfully providing medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment.
III. "Medical injury" or "injury" means any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; from rendition of such services without informed consent or in breach of warranty or in violation of contract; from failure to diagnose; from premature abandonment of a patient or of a course of treatment; from failure properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:2

    507-C:2 Burden of Proof. –
I. In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence consisting of the expert testimony of a competent witness or witnesses:
(a) The standard of acceptable professional practice in the medical care provider's profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
II. Without limiting the applicability of paragraph I of this section, where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person:
(a) The plaintiff shall have the burden of proving by affirmative evidence, consisting of expert testimony of a competent witness or witnesses, that the treatment, procedure or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure or surgery.
(b) In determining whether the plaintiff has satisfied the requirements of subparagraph (a) of this paragraph, the following matters shall also be considered as material issues:
(1) Whether a person of ordinary intelligence and awareness in a position similar to that of the injured person or person giving consent on his behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure or surgery;
(2) Whether the injured person or the person giving consent on his behalf knew of the risks or hazard inherent in such treatment, procedure or surgery;
(3) Whether the injured party would have undergone the treatment, procedure or surgery regardless of the risk involved or whether he did not wish to be informed thereof;
(4) Whether it was reasonable for the medical care provider to limit disclosure of information because such disclosure could be expected to adversely and substantially affect the injured person's condition.
III. In any action for medical injury, the doctrine of res ipsa loquitur shall not apply.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:3

    507-C:3 Qualified Testimony. –
In any action for medical injury:
I. No witness is competent to give the expert testimony required by RSA 507-C:2 unless the court finds that the witness was competent and duly qualified to render or supervise equivalent care to that which is alleged to have caused the medical injury at the time that such care was rendered.
II. No witness whose compensation for his services is in any way dependent on the outcome of the case shall be permitted to give the expert testimony required by RSA 507-C:2.
III. No medical care provider shall be required to give expert opinion testimony against himself or herself as to any of the matters set forth in RSA 507-C:2. However, this prohibition does not apply if the medical care provider has previously and voluntarily given such expert opinion testimony favorable to himself or herself at the trial.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:4

    507-C:4 Statute of Limitations. – Notwithstanding any other provision of law, all actions for medical injury shall be commenced within 2 years of the act, omission or failure complained of, except that where the action is based upon discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such 2-year period, the action may be commenced within 2 years of the date of discovery or of the date of discovery of facts which would reasonably lead to discovery, whichever is earlier. This section applies to all persons regardless of minority or other legal disability, except that a minor under the age of 8 years at the time of the act, omission or failure complained of shall in any event have until his tenth birthday in which to commence an action.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:5

    507-C:5 Notice of Intent to Sue. – No action for medical injury shall be commenced until at least 60 days after service upon the person or persons alleged to be liable, by certified or registered mail, of a written notice of claim setting forth, under oath, the nature and circumstances of the alleged injuries and the damages claimed. If the notice is served within 60 days of the expiration of the period for bringing suit described in RSA 507-C:4, the time for commencement of the action shall be extended 60 days from the service of the notice.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:6

    507-C:6 Elimination of Ad Damnum. – In any action for medical injury, the declaration or other affirmative pleading shall not specify the amount of damages claimed, but shall, instead, contain a general allegation of damage and shall state that the damages claimed are within any minimum or maximum jurisdictional limits of the court to which the pleading is addressed. At any time after service of the pleading, the defendant may, by special interrogatory, which shall be answered within 15 days, demand a statement of the amount of damages claimed by the plaintiff. The information provided in response to the special interrogatory shall not be admissible in evidence at trial, nor shall it be communicated to the jury in argument or otherwise.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:7

    507-C:7 Damages Recoverable. –
In any action for medical injury:
I. The damages awarded may include compensation for actual economic losses suffered by the injured person by reason of medical injury, including but not limited to, the cost of reasonable and necessary medical care, rehabilitation services, custodial care, loss of services and loss of earnings or earning capacity. The defendant may introduce evidence of amounts recovered or recoverable by or on behalf of the injured person from health, accident, sickness or income-disability insurance or from governmental, employment, service or other benefit programs. Where the defendant does so, the plaintiff may introduce evidence of the total of any amounts which the plaintiff has paid or contributed to secure his right to any such benefits as to which the defendant has introduced evidence. When such evidence is introduced, the jury shall be instructed to reduce the award for economic loss by a sum equal to the difference between the total benefits received and the total amount paid by the plaintiff to secure such benefits.
II. The damages awarded may include compensation for pain and suffering or other non-economic loss. However, compensation for non-economic losses shall in no event exceed the sum of $250,000.
III. In the event of a verdict for the plaintiff, the finder of fact shall separately state its awards for past and future economic losses and for past and future non-economic losses. In trials to a jury, the jury shall not be informed of the limit prescribed in paragraph II of this section, but if the jury awards an amount in excess of the limit, the court shall reduce the amount of damages awarded to conform to the limit.
IV. In the event of a judgment for the plaintiff, if the award for future damages exceeds $50,000, the court may, at the request of either party, order that the future damages of the injured person be paid in whole or in part by periodic payments as determined by the court, rather than by lump sum payment, on such terms as the court deems just and equitable. As a condition to authorizing periodic payments of future damages, the court may order a judgment debtor who is not adequately insured to post security adequate to assure full payment of such damages. In the event of the death of the injured person prior to completion of installment payments, upon motion of any party at interest, the court shall modify the order by deducting from the remaining balance the amount thereof representing unpaid compensation for future non-economic loss and future expenses of care and by ordering the remainder to be paid to the estate of the decedent.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:8

    507-C:8 Contingent Fees. –
I. In any action for medical injury, no attorney representing any party to such action shall contract for, charge or collect on a contingent fee basis any fee for his services to such party in excess of the following limits:
(a) Fifty percent of the first $1,000 recovered;
(b) Forty percent of the next $2,000 recovered;
(c) Thirty-three and one-third percent of the next $97,000 recovered;
(d) Twenty percent of all in excess of $100,000 recovered;
(e) Where the amount recovered is for the benefit of an infant or incompetent and the action is settled without trial, the foregoing limits shall apply, except that the fee in any amount recovered up to $50,000 shall not exceed 25 percent.
II. No attorney shall enter into such a contingent fee arrangement with his client without first advising the client of his 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 services.
III. Such contingent legal fee shall be computed on the net sum recovered by the client after deducting disbursements made in connection with the institution and prosecution of the client's claim and litigation.
IV. The contingent legal fee within the permissible maximum limits shall include legal services rendered in any appeal or review or in any retrial, but this shall not be deemed to require an attorney to take an appeal.
V. If, at the conclusion of any action for medical injury, an attorney considers that the fee limitations prescribed in paragraph I of this section are insufficient, he may apply to the court, with written notice to the client, for an increase in the fee, which the court, after hearing, may grant in such amount, if any, as is deemed reasonable under the circumstances of the case.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:9

    507-C:9 Baseless Pleadings. – In any action for medical injury, claims, defenses or denials made without reasonable cause and found to be untrue shall subject the party pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, including reasonable attorney's fees, to be taxed by the court upon motion made within 30 days of judgment.

Source. 1977, 417:22, eff. Sept. 3, 1977.

Section 507-C:10

    507-C:10 Applicability. – This chapter applies to all causes of action for medical injury accruing after September 3, 1977, and as to such causes of action, shall supersede any inconsistent provision of law. In addition, this chapter applies to causes of action accruing prior to September 3, 1977, upon which no action has been instituted as of September 3, 1977, except that the time for bringing such actions as specified in RSA 507-C:4 shall be computed from September 3, 1977.

Source. 1977, 417:22, eff. Sept. 3, 1977.