Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury.
The New Hampshire Supreme Court has held that caps on non-economic damages in medical malpractice cases are unconstitutional under the state constitution.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. New Hampshire follows a modified rule of joint and several liability, pursuant to which damages are joint and several, except that if any party's fault for the injury is less than fifty percent then the party's liability is several, and is limited to the portion of the damages consitent with the party's degree of fault. An exception may arise in cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, in which case the judgment against those parties is joint and several. Where liability is not joint, if within 60 days of final judgment the damages are uncollectible, the court may reallocate any uncollectible amount among the other defendants according to their proportionate shares of fault.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. The New Hampshire Supreme Court held that a statute abrogating this rule was unconstitutional.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In New Hampshire, a medical malpractice action must be commenced within three years of the date the injury is or reasonably should be discovered. For minors, an action may be commenced within two years of their reaching the age of majority. The state's supreme court held a statute of limitations specific to medical malpractice actions to be unconstitutional.
Additional rules affecting malpractice litigation in the State of New Hampshire include:
Limits on Attorney Fees
The state supreme court held that limits on attorney fees in medical malpractice cases are unconstitutional.
Pretrial Screening Panels
In New Hampshire, the parties to a medical malpractice case may agree to have the claim submitted to a pretrial screening panel, comprised of a doctor, lawyer and retired judge. The parties may request that certain legal issues be resolved by the trial court before they submit the case to a screening panel. Within thirty days after hearing, the panel must issue findings on the issue of whether medical negligence occurred, whether any negligence by the defendants was a proximate cause of the injuries claimed by the patient, and whether fault on the part of the patient was equal to or greater than the fault of the health care provider. Unless the parties agree, the panel may not issue findings on affirmative defenses other than comparative negligence.
Medical Expert Witness Restrictions
The state supreme court held that an attempt to impose heightened requirements for expert witness testimony in medical malpractice cases was unconstitutional.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. New 's apology law provides that no 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 their family is admissible as an admission of liability in a medical injury action. However, a statement of fault, negligence, or culpable conduct that is made as part of such a statement remains admissible.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.