What is medical malpractice?

In New Hampshire, medical malpractice is defined by statute as “any action against a medical provider to recover damages or account of medical injury” (RSA 507-E:1(I)). Medical injury is defined as “any adverse, untoward, or undesired consequence arising out of or sustained in the course of professional services provided by a medical care provider…” (RSA 507-E:1(III)). Thus, malpractice occurs when a medical care provider causes injury. However, that injury must also have been caused by substandard or negligent care.

What is “standard of care”?

"Standard of care" is the minimal acceptable care required of a medical care provider under the circumstances. In order for a patient to successfully pursue a medical malpractice claim he or she must prove that the defendant provider failed to meet that standard of care. Another statute (RSA 508:13) specifies that whether a medical care provider has met the applicable standard of care is to be determined by the standards and recommended practices and procedures of his profession, and the training, experience, and professed degree of skill and care of the average practitioner of that profession. The applicable “degree of care” is the degree of care which an ordinary, prudent practitioner would exercise under the same or similar circumstances. N.H. Civ. Jury Instr. 13.1 (2023). RSA 508:13 further explains that the standard of care to be applied shall not be bound by the standards exhibited within any particular geographical area.

what is causation?

Causation is one of the burdens a patient must bear in successfully pursuing a medical malpractice claim. This requirement is also governed by a statute which compels a Plaintiff in a medical malpractice action to prove that as a result of the breach of the standard of care the “…injured person suffered injuries which would not otherwise have occurred” (RSA 507-E:2 (I) (C)). Thus, a patient can recover damages in a malpractice case only for those injuries directly arising from a medical care provider’s negligence.

what are damages and how much is recoverable?

In medical malpractice and other personal injury activities, the damages recoverable are variable depending on the types of injuries incurred. Common areas of damage include:

• Medical bills

• Lost wages and lost earning capacity

• Physical incapacity and suffering

• Emotional suffering

• Extraordinary life care costs such as nursing care, therapy, and specialized medical and other equipment.

are experts required?

Yes. Again, a statute mandates this by requiring expert testimonial regarding the standard of care, its breach, and causation (RSA 507-E:2 (II) (a)). This often means that multiple experts may be required in medical malpractice cases to adhere to various issues presented and specialties of medicine involved.

how long do i have to file a lawsuit?

The deadline for filing a lawsuit is imposed by a “statute of limitation,” which sets out the time period within which a suit may be brought. The exact date depends on the facts of each case and sometimes requires a final determination by a judge, which is why it’s best to contact a lawyer promptly to allow sufficient time to properly investigate a case and to avoid the potential catastrophe of missing a statute of limitations.

Ordinarily, a patient has three years from the date of negligence within which to file suit (RSA 508:4). However, when the negligent provider is a federal health center or is employed by an entity that receives federal funding, the statute of limitations is two years, not three. (42 U.S.C. § 233(g), § 254 (b); 28 U.S.C. § 2401(b)). Additionally, minors usually have until their 20th birthday to commence a claim for personal injuries (RSA 508:8). However, the medical and extraordinary bills incurred in the care of a minor are the responsibility of the minor’s parent or guardian; consequently, the three-year statute of limitations applies to such expenses.

If i signed a consent form, have i waived my right to bring a case?

No. A consent form does not give the health care provider the right to provide negligent care. While a consent form indicates an acknowledgment of stated risks and complications associated with a given treatment or procedure, it does not relieve the physician from his or her duty of meeting the standard of care associated with such treatment. 

do most cases settle?

If we carefully screen the cases on which we are asked to provide representation, we properly prepare them, our clients provide accurate information and testimony, and the other variables that make a strong Plaintiff’s case are achieved, there is a likelihood that it will settle. We will advise our clients during settlement negotiations; however, the decision as to whether to settle is ultimately that of the client’s.

why do attorneys turn down malpractice cases?

There can be a number of reasons why an attorney will not take a case, including:

• A credible expert will not confirm that there has been malpractice or that malpractice was the cause of injury or death

• The damages are insufficient to justify the cost of bringing a case to court. It is very expensive to pursue a medical malpractice case to conclusion. Therefore, even if medical malpractice clearly occurred, the harm that was caused must be serious enough to allow for a recovery that would warrant such a costly and difficult undertaking.

how are attorney’s fees paid?

Although clients have the option to pay for our representation on an hourly basis as their cases progress, most cannot afford to do so and instead elect to hire us on a contingent fee basis. A contingent fee is paid only if the contingency of a financial recovery is achieved. When that occurs, a percentage of the total recovery is charged.

how are costs paid?

In addition to attorney’s fees, costs are incurred in pursuing malpractice and personal injury cases. These can include the costs of gathering medical records, investigation, expert fees, court fees, deposition expenses, travel, and more. For those clients who cannot afford to pay for those costs as the case progresses, we will pay for them and take repayment from the recovery at the conclusion of the case.