Wrongful Death
Until 1887, New Hampshire common law did not recognize the death of a human being as an “injury” and no right to bring a lawsuit existed.¹ The prevailing belief was that an injured person’s cause of action died with them, and no one left behind had legal standing to bring a lawsuit on behalf of the estate. Thus, for most of the 19th century the common law provided no redress for negligence that resulted in death, and arguably create a perverse incentive for negligent actors to allow the victims of their negligence to die in order to escape litigation.
Now, that right to bring a wrongful death action is protected by state statute. So if a person dies as a result of medical negligence, his or her estate is legally entitled to seek compensation through a lawsuit. The statutory protection of this right ensures that the family of the deceased has a voice in seeking justice for the tragic loss of their loved one.
Initiating the lawsuit is typically handled by the estate’s administrator, though there are exceptions.² If successful, any compensation is awarded directly to the estate. The types of damages that can be recovered are also outlined by statute,³ and include the following:
medical expenses incurred by the negligence;
funeral expenses;
mental and physical pain and suffering endured by the deceased before death; and
lost earnings during the deceased’s probable working life.
If the decedent leaves behind a surviving spouse, the spouse may recover compensation for his or her loss of the comfort, society, and companionship of the deceased, also known as loss of consortium. However, New Hampshire law restricts any such award to $150,000.⁴
If the decedent leaves behind minor children, each child may recover compensation for his or her loss of familial relationship, which includes loss of the comfort, society, affection, guidance, and companionship of their deceased parent. If instead it is the parents who suffer the loss of their child as a result of medical negligence, the same concept applies. Similar to the law on spousal recovery, any award for familial loss is restricted to $50,000 per claimant.⁵
If you read the above and thought that $150,000 or $50,000 seem inadequate to compensate a surviving spouse, parent, or child for the loss of their relationship, you are not alone. A federal district court judge once described New Hampshire’s limit on spousal and familial recovery as lying in the “in the backwater of the modern stream.”⁶ Many states impose no damages cap at all, and of the ones that do, the cap amount tends to be significantly higher. Maine, for example, allows for spousal recovery up to $750,000, and even allows for punitive damages up to $250,000.⁷
In fact, the spousal and familial cap amounts in New Hampshire have not changed since their enactment in 1998 and 1999, respectively. Even assuming the allotted amounts are fair, they still fail to account to for inflation. For perspective, $150,000 and $50,000 in 1998-99 are closer to $273,000 and $89,000 today.⁸
¹ Burke v. Burnham, 97 N.H. 203 (1951)
² See RSA 556:19
³ RSA 556:12(I)
⁴ RSA 556:12(II)
⁵ RSA 556:12(III)
⁶ Lacaillade v. Loignon Champ-Carr, Inc., No. 10-cv-68-JD, 2011 U.S. Dist. LEXIS 116596, at *12 (D.N.H. Oct. 7, 2011)(quoting Maguire v. Exeter & Hampton Elec. Co., 114 N.H. 589 (1974).
⁷ Me. Rev. Stat. Ann. 18-C § 2-807 (2021).
⁸ https://www.usinflationcalculator.com/