Recent Developments in New Hampshire Medical Malpractice Law

I. Introduction

Since November 2000, the New Hampshire Supreme Court has issued five opinions in medical negligence cases. The Court has recognized an important new cause of action and has applied settled law to interesting factual situations. The core element running through these opinions is the Court’s abiding respect for the jury system and its confidence in the ability of New Hampshire jurors to make difficult decisions on liability and damages.

II. MacDonald v. Bishop

On November 30, 2000, the Court decided the case of MacDonald v. Bishop.1 The case was heard by a three justice panel comprised of Chief Justice Brock, Justice Horton, and the author of the opinion, Justice Broderick.

The lawsuit arose from a doctor’s failure to diagnose the plaintiff’s tongue cancer. The plaintiff went to his primary care physician in January of 1994 with a discolored, smooth spot on his tongue that had persisted for several weeks. The physician determined that the plaintiff had a vitamin deficiency and recommended a multi-vitamin. Within months, the plaintiff’s pain resolved, but it was replaced with numbness. He saw a specialist in March of 1995 and a biopsy revealed cancer. A portion of the plaintiff’s tongue was subsequently removed, along with lymph nodes in his neck. He also underwent chemotherapy and radiation treatment, which caused permanent side effects including the total elimination of the plaintiff’s sense of taste.

At trial, it was undisputed that the defendant did not tell the plaintiff that his condition could be associated with cancer or that he had a high risk for developing oral cancer. However, the doctor testified that he told the plaintiff to contact him if his symptoms persisted and to consult with a dentist to determine whether his dentures were causing his problems. The plaintiff denied that the doctor said either of these things. The jury returned a defense verdict and the plaintiff appealed.

The appeal centered on the trial court’s exclusion of certain testimony from the plaintiff’s son and brother. First, the plaintiff argued that the judge had erroneously excluded testimony from his son and brother that he told them after his January 1994 appointment with the defendant that he had a vitamin deficiency and planned to take a multi-vitamin. This testimony was offered in support of the inference that the doctor never told the plaintiff that his tongue condition could be a precursor to cancer, that he should consult a dentist, or that he required any follow-up care.

The plaintiff was allowed to testify that he made this statement to his brother. However, on appeal, he argued that the excluded testimony from the son and brother was critical corroborative evidence necessary to prove malpractice. He contended that the testimony of his son and brother should have been admitted under the state of mind exception to the hearsay rule set forth in Rule 803(3) of the New Hampshire Rules of Evidence. The Court disagreed.

[The plaintiff] sought to introduce statements he purportedly made to his son and brother about his physical condition immediately following his January 1994 examination to prove what the defendant told him or failed to tell him. The state of mind exception, however, only permits a litigant to use an out- of-court statement to prove the state of mind or subsequent conduct of the declarant when such facts are at issue. Because [the plaintiff] was not offering the challenged testimony to prove his state of mind, but rather to establish the conduct of another, the trial court did not abuse its discretion by excluding it.2

The plaintiff also challenged the trial judge’s refusal to allow his attorney to ask his son about the plaintiff’s description of changes in his tongue’s condition. The plaintiff argued that his son’s testimony was necessary to rebut the doctor’s position that he did not breach the standard of care because the tongue condition resolved itself after the plaintiff took multi-vitamins. Again, the plaintiff argued that such testimony was admissible under the state of mind hearsay exception.

The Court did not address the merits of the evidentiary rulings, but instead ruled that the plaintiff had suffered no prejudice in any event. After recounting the testimony of various witnesses, the Court determined that there was already ample evidence in the record to rebut the assertion that the condition had resolved itself.

We conclude that even without the son’s proposed testimony, the jury had ample evidence before it to decide whether [the plaintiff’s] symptoms resolved prior to March 1995 and, thus, could fairly determine whether multi-vitamins cured his tongue complaints. Accordingly, there is no discernible prejudice to the plaintiff’s case as a result of the trial court’s evidentiary rulings.3

Although the specific issues on appeal pertained to evidentiary rulings, the Supreme Court affirmance in this case reflects its deference to the jury’s role in resolving disputed evidence.

III. St. Pierre v. Elgert

The Supreme Court issued its opinion in St. Pierre v. Elgert4 on December 28, 2000. The panel hearing this case was comprised of Chief Justice Brock, Justice Broderick, Justice Nadeau, and the author, Justice Dalianis.

The lawsuit giving rise to this decision arose from the delivery of the plaintiff’s second child. The defendant physician believed that the plaintiff had expelled all of the placenta when she actually had retained some pieces. The pieces that were retained caused an infection that led to a procedure in which the plaintiff’s uterus was perforated. She ultimately lost one of her fallopian tubes.

At trial, the court entered a directed verdict in favor of the defendant at the close of the plaintiff’s case finding that the plaintiff’s expert had not established a prima facie case on liability or causation. On appeal, the Supreme Court painstakingly reviewed the expert’s testimony and concluded that it was sufficient to make out a jury question on both elements.

With respect to liability, the plaintiff’s expert testified on direct that the standard of care required the defendant to make sure that the placenta was completely expelled from the mother. He added that the defendant breached this standard because he “missed a piece.” The expert also testified that he did not actually read the defendant’s deposition so he could not comment on what the defendant’s examination consisted of. On cross-examination, the expert directly contradicted himself. Specifically, he conceded that negligence is determined by how the examination was conducted; it is not to be presumed from the mere fact that tissue was missed. The trial court ruled that this testimony was insufficient to permit a reasonable juror to find that the standard of care had been breached. The Supreme Court disagreed.

The Court began by noting that the expert’s testimony on direct was sufficient to satisfy the plaintiff’s burden of proof regarding the standard of care. Addressing the expert’s subsequent contrary testimony, the Court concluded as follows:

While it may appear that the expert articulated two contradictory standards of care, one that requires a physician not to miss any retained products of conception and another that depends upon how the physician examines the placenta, it was for the jury to resolve any such conflict. The jury may accept some parts and reject other parts of testimony, and adopt one or the other of inconsistent statements by witnesses. The defendant’s argument that the case should have been taken from the jury because of alleged inconsistency in the expert’s testimony is without merit.5

Accordingly, the Court ruled that “the inferences that may be drawn from the expert’s testimony are not so overwhelmingly in favor of the defendant that no contrary verdict could stand.”6

Moving on to the issue of causation, the Court first noted that the expert had testified on direct that the defendant’s failure to recognize that the plaintiff retained portions of the placenta “caused her condition.” In addition, the expert had testified that the plaintiff’s infection “was instigated and started by the retained tissue” and that “the presence of retained tissue was the result of not recognizing that it was retained initially and not removing it . . . [b]y [the defendant], who delivered the placenta.”7 According to the Court, this testimony was sufficient to permit a reasonable juror to find causation. The Court noted that “[t]he emergency room doctor’s failure to detect retained products two days after delivery arguably may have contributed to the plaintiff’s injuries, but did not extinguish the defendant’s role.”8

This decision, like the one before it, demonstrates the Court’s commitment to the right to a jury trial. It is clear that the Court has sharply restricted the ability of trial judges to take cases from the jury.

IV. Lord v. Lovett

The opinion in Lord v. Lovett9 was issued by the Court on April 4, 2001. The opinion was written by Justice Nadeau, writing for himself, Justice Dalianis, and Superior Court Justices Groff and Mangones. Justice Broderick concurred separately.

This lawsuit came about when the plaintiff’s spinal cord injury was misdiagnosed and improperly treated. She broke her neck in an automobile accident and alleged that the two doctors who treated her failed to immobilize her and failed to administer steroid therapy causing her to lose the opportunity for a substantially better recovery. Because of the negligent treatment she received, she suffers from significant residual paralysis, weakness, and sensitivity.

Prior to trial, the plaintiff stated that her expert would testify that the defendants’ negligence deprived her of the opportunity for a substantially better outcome; but he could not quantify the degree to which she was deprived of a better outcome. The trial court subsequently dismissed the plaintiff’s suit ruling that New Hampshire does not recognize “loss of opportunity” as a valid cause of action.

On appeal, the Supreme Court reviewed the various approaches taken by other courts when the plaintiff is unable to prove that he was deprived of a better-than-even chance of a successful outcome. After concluding that the loss of an opportunity is an interest that should be compensable, the Court held that, when such a loss is proved to be the result of negligence, the plaintiff may recover damages to compensate for that loss. The Court emphasized that the measure of damages was not to be the full value of the injuries that the plaintiff ultimately suffered.

Preexisting conditions must, of course, be taken into account in valuing the interest destroyed. When those preexisting conditions have not absolutely preordained an adverse outcome, however, the chance of avoiding it should be appropriately compensated even if that chance is not better than even.10

Accordingly, “[a] loss of opportunity plaintiff must provide the jury with a basis upon which to distinguish that portion of her injury caused by the defendant’s negligence from the portion resulting from the underlying injury.”11

The Court rejected the defendants’ argument that the text of New Hampshire’s medical injury statute prevented the recognition of the loss of opportunity cause of action. Characterizing the plaintiff’s loss of opportunity as “an adverse or unintended consequence resulting from the defendants’ negligence, error, omission, or failure to diagnose,” the Court concluded that the cause of action fit within the existing statutory definition of “medical injury.”12 The Court added that nothing in the statute precluded recovery for this type of injury.13

The Court rejected the argument that the cause of action would contradict the medical injury statute by permitting recovery based on the possibility that the defendant caused the plaintiff’s injury when the statute requires proof that the alleged negligence probably caused the injury. This is not true, according to the Court, because “[t]he right we recognize today still requires a plaintiff to prove that the injury she suffered — the lost opportunity for a better outcome — was caused, more probably than not, by the defendant’s negligence.”14 Thus, by characterizing the “injury” as the lost opportunity, the Court ensured compliance with the statute. The Court emphasized that “[h]aving alleged her injury as the loss of opportunity, the plaintiff is not relieved of her burden to prove that the defendants’ negligence ‘probably’ caused it.”15

Lastly, the Court rejected the argument that the cause of action should not be adopted because the loss of an opportunity is intangible, making it difficult to calculation damages.

First, we fail to see the logic in denying an injured plaintiff recovery against a physician for the lost opportunity of a better outcome on the basis that the alleged injury is too difficult to calculate, when the physician’s own conduct has caused the difficulty. Second, we have long held that difficulty in calculating damages is not a sufficient reason to deny recovery to an injured party. Third, loss of opportunity is not inherently unquantifiable. A loss of opportunity plaintiff must provide the jury with a basis upon which to distinguish that portion of her injury caused by the defendant’s negligence from the portion resulting from the underlying injury. This can be done through expert testimony just as it is in aggravation of pre-existing injury cases.16

Justice Broderick wrote a separate concurring opinion. He agreed with the majority that the language of the medical injury statute was broad enough to encompass the loss of opportunity cause of action, but he questioned whether it was intended to do so.17

The Court’s adoption of the loss of opportunity cause of action once again reflects its confidence in the ability of jurors in this state to fairly decide difficult cases. The Court relies heavily on the jury to place a fair value on the lost opportunity.

V. Emerson v. Bentwood

The decision in Emerson v. Bentwood18 was issued on April 9, 2001. The opinion was written by Superior Court Justice Barry for a panel that included Justice Duggan, and Superior Court Justices Mohl, O’Neill, and Hampsey.

The plaintiff sued a surgeon who, according to the plaintiff, performed an unnecessary total hysterectomy. At trial, she presented expert testimony that the defendant deviated from the standard of care when he performed the hysterectomy because far less invasive and risky ways existed to make a diagnosis than the removal of the plaintiff’s organs. However, at the close of the plaintiff’s case, the trial judge directed a defense verdict. He ruled that the expert had not properly established a breach of the standard of care and had not established causation.

On appeal, the Supreme Court examined the record for testimony that would allow the case to go to the jury. Initially, the Court pointed out several instances in which the expert had stated that the defendant breached the standard of care. It went on to consider whether the expert had provided an adequate foundation for his testimony on these matters.

Dr. Klapholz explained that because far less invasive means existed to diagnose the plaintiff’s condition, they should have been utilized first. He also emphasized the importance of a firm diagnosis before undertaking treatment. The defendant admitted at trial that “part of the reason for performing this hysterectomy was to arrive at a more definitive diagnosis.” We therefore conclude that Dr. Klapholz provided an adequate foundation for his opinion that the defendant deviated from the standard of care by performing a hysterectomy, given the plaintiff’s symptoms, when other less invasive means of diagnosis were available.19

Turning to the issue of causation, the Court again found sufficient testimony in the record. The plaintiff’s expert testified that the defendant incorrectly diagnosed the plaintiff’s condition as pelvic inflammatory disease; that he would have ruled this diagnosis out if he had performed the appropriate diagnostic procedures; and that the resulting hysterectomy was unnecessary. This was sufficient, according to the Court, to establish that the plaintiff suffered an injury – the loss of her reproductive organs – that otherwise would not have occurred.20

The Court rejected the trial judge’s assertion that the expert’s testimony left the jury to speculate because he was unable to identify the probable source of the plaintiff’s pain and he was unable to explain why the pain ceased after the hysterectomy. On this issue, the expert had testified that it was “unlikely” that the hysterectomy was necessary given all the possibilities that could cause pain. The Court emphasized that the necessity of the hysterectomy was a question for the jury to resolve and that the weight to be given the expert’s testimony was a matter strictly within the province of the jury.

Citing St. Pierre v. Elgert, the Court concluded that “[t]he plaintiff offered sufficient expert testimony to show a causal link between the defendant’s alleged negligence and the plaintiff’s alleged injury. To conclude otherwise could conceivably render a plaintiff remediless whenever a physician acted prematurely and without a definitive diagnosis.”21

Lastly, the Court rejected the trial judge’s determination that the plaintiff’s expert’s testimony was “unreliable.” The basis for the judge’s conclusion was that he had found the expert’s testimony confusing. He cited the following example, “When asked a rather straight forward question: ‘Is the use of a laparoscope in treatment hindered in your opinion by the presence of adhesions or prior surgeries?’ Dr. Kalpholz answers, ‘No. It may be. It could . . .'”

The Supreme Court determined that the trial judge had taken this exchange out of context and ruled that he had abused his discretion by concluding that the expert’s testimony was so confusing and inconsistent that it would not assist the trier of fact.

Dr. Klapholz clearly stated: (1) the standard of care “is to make a diagnosis first before you attempt to remove an organ”; (2) the defendant deviated from that standard of care performing the hysterectomy “with the data that was available” by not using “other techniques . . . commonly available, that can make a diagnosis that are far less invasive, far less risky and don’t require the removal of organs”; and (3) as a result the plaintiff underwent a total hysterectomy when it was “unlikely given all the possibilities that could cause the pain that [a hysterectomy] would be a necessary procedure.”22

In closing, the Court held that

[t]he expert’s testimony was sufficient for a rational trier of fact to conclude that the defendant should have employed less invasive measures before resorting to a hysterectomy and that said deviation from the standard of care resulted in the plaintiff’s injury. Under our jury system, reasonably disputable issues of fact are to be resolved by the jury.23

VI. Francoeur v. Piper

The decision in Francoeur v. Piper24 was issued on June 22, 2001. The opinion was written by Justice Duggan for a panel that included Chief Justice Brock, and Justices Broderick and Nadeau.

The plaintiff sued the orthopedic surgeon who treated his late wife’s broken ankle. The woman had to have her leg amputated after it became infected and gangrenous as a result of the defendant’s alleged negligent treatment. The case was tried to a jury in Hillsborough County Superior Court, Southern District, and resulted in a defense verdict. On appeal, the plaintiff challenged two elements of the jury instructions.

First, the plaintiff argued that the trial judge had erred by instructing the jury on common law professional negligence. The plaintiff asserted that the medical injury statute, R.S.A. 507-E, governed this medical malpractice suit and that with the passage of this statute the common law elements of negligence became irrelevant. The Court rejected this argument finding that the statute essentially restated the common law professional negligence elements. Accordingly, the trial judge correctly instructed the jury on the concept of negligence.25

The plaintiff’s second argument was more fruitful as he successfully challenged the trial court’s instruction that “a mere error in judgement, made in the proper exercise of judgment, is not professional negligence.”26

Agreeing with a number of other jurisdictions, the Court noted that this instruction is reasonably capable of confusing or misleading the jury in two ways. First, according to the Court, the instruction improperly introduces a subjective element regarding the standard of care.

The defendant in a medical negligence case is measured against the standard of reasonable professional practice. This reasonableness standard is an objective standard and therefore the defendant’s mental state is not an issue to be considered by the jury. The “mere error of judgment” instruction suggests that some errors are not actionable. In determining which errors are more than a “mere error,” the jury may improperly conclude that only errors made in bad faith are actionable. This could invite the jury to improperly consider the subjective intentions of the defendant at the time he rendered treatment.27

Second, the Court took issue with the use of the word “mere.” The Court found that this term “implies that some errors, which fall below the standard of care, are not serious enough to be actionable. This could lead the jury to conclude incorrectly that a defendant is not liable for malpractice even if he is negligent.”28

Because of its misleading and confusing nature, the Court held that the trial judge erred by giving the “mere error of judgment” instruction to the jury.29 It went on to conclude that this error required reversal of the jury verdict in favor of the defendant and a new trial.30

VII. Conclusion

Going back to Bronson v. The Hitchcock Clinic31, the New Hampshire Supreme Court has consistently trusted properly instructed juries to resolve the difficult issues presented in medical negligence cases. In this era of crowded dockets, where the emphasis has largely turned to pretrial motion practice, the Court’s reaffirmation of the jury system in its five recent medical malpractice cases is most welcome.


  1. 145 N.H. 442 (2000).
  2. Id., 145 N.H. at 445 (citations omitted).
  3. Id., 145 N.H. at 446.
  4. 145 N.H. 620 (2000).
  5. Id., 145 N.H. at 624 (quotations omitted).
  6. Id. (quotations omitted).
  7. Id., 145 N.H. at 624-25.
  8. Id., 145 N.H. at 625 (citing Pridham v. Cash & Carry Bldg. Center, Inc., 116 N.H. 292, 297 (1976)).
  9. Docket No. 99-179.
  10. Id., slip op. at 3 (quoting King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1354 (1981)).
  11. Id., slip op. at 6.
  12. Id., slip op. at 4.
  13. Id.
  14. Id., slip op. at 5.
  15. Id.
  16. Id., slip op. at 6 (citations omitted).
  17. Id., slip op. at 6-8 (Broderick, J. concurring).
  18. Docket No. 98-673.
  19. Id., slip op. at 4.
  20. Id., slip op. at 4-5.
  21. Id., slip op. at 5.
  22. Id.
  23. Id., slip op. at 6 (citations omitted).
  24. Docket No. 99-188.
  25. Id., slip op. at 2-3.
  26. Id., slip op. at 3.
  27. Id., slip op. at 4 (citations omitted).
  28. Id. (citations omitted).
  29. Id.
  30. Id., slip op. at 5.
  31. 140 N.H. 798 (1996).