The Current Status of Loss of Opportunity Claims in NH Medical Malpractice Litigation

I. Introduction:
The New Hampshire Supreme Court’s 2001 adoption of the loss of opportunity theory of recovery led to intense lobbying by the medical and insurance communities culminating in the passage of R.S.A. 507-E:2, III in 2003. This article will address the current status of loss of opportunity claims in the aftermath of that statute.

II. Background:
In the 2001 case of Lord v. Lovetti, the New Hampshire Supreme Court determined that a person has been deprived of a less than even chance of avoiding harm as a result of negligent medical care has suffered a compensable loss. This meant that, for the first time in New Hampshire, a person could recover damages even if he or she could not prove that the outcome probably would have been different but for the defendant’s negligence.
The Court emphasized that it was not allowing recovery in the absence of legal causation. It was merely recognizing a new type of harm (the loss of an opportunity for a better outcome) that still must be proven to have been more likely than not caused by the defendant’s negligence. Specifically, the Court explained that “[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.”ii Thus, in the case before it, the Court noted 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.”iii
Despite its limited application, the Lord decision created a stir in the medical community and among medical malpractice insurance carriers. They went to the Legislature with erroneous claims that the Supreme Court had created liability in the absence of negligence and the Legislature responded in 2003 by passing Senate Bill 119, which amended the Medical Injury statute by adding paragraph III to R.S.A. 507-E:2.
The new provision begins by declaring that a plaintiff’s burden of proof in a medical negligence case is “not satisfied by evidence of loss of opportunity for a substantially better outcome.”iv However, it goes on to state that
this paragraph shall not bar claims based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition.v
III. R.S.A. 507-E, III Only Applies To Cases Arising After June 30, 2003:
The legislation that created R.S.A. 507-E:2, III explicitly states that “[t]his act shall apply to all actions for medical injury arising on or after the effective date of this act.”vi The effective date for the amendment was June 30, 2003. Therefore, the new provision applies only to those malpractice cases arising on or after June 30, 2003.
A medical negligence case does not “arise” until causal negligence is coupled with harm to the plaintiff.vii Taking into account the three year statute of limitations and the various tolling provisions which may extend that period even further, it suffices to say that there will be many cases filed for years to come which will continue to be governed by Lord v. Lovett and not R.S.A. 507-E:2, III.
We have had defendants argue that Lord v. Lovett should not be applied to cases that arose before the effective date of the new statute because the Legislature has told the Court that its interpretation of the medical injury statute in Lord was erroneous. A virtually identical argument was rejected by the Supreme Court in Bromfield v. Seybolt Motors, Inc.viii
When the accident occurred in Bromfield, a woman was not permitted to recover for loss of spousal consortium by virtue of the Supreme Court’s decision in Snodgrass v. Cherry-Burrell Company.ix However, after the accident, but before suit was filed, the Legislature passed a new statute recognizing such a cause of action. The Supreme Court first ruled that the statute could not be applied retroactively to govern a case that arose before its passage.x
The Court then turned to the plaintiff’s request that it overrule Snodgrass in light of the Legislature’s actions and allow her claim to proceed as a matter of common law. The Court rejected the plaintiff’s argument noting that she was essentially asking it to declare that its prior decision became “wrong” when the Legislature voted to overrule it.
For better or worse litigants, their counsel and insurers have relied on Snodgrass as the law of the jurisdiction prior to the effective date of the new statute . . . in the trial and settlement of tort litigation. To overrule Snodgrass and apply it to this case is an indirect method of applying the new statute retro- actively which we decline to do.xi
There is no meaningful distinction between the argument rejected in Bromfield and the argument made by medical care providers that Lord v. Lovett should not be applied to cases arising before the effective date of R.S.A. 507-E:2, III. Lord clearly governs all medical negligence cases that arose before June 30, 2003.
IV. Loss of Opportunity Claims Can Be Made In The Alternative To Wrongful Death Claims:
Some medical care providers argue that a wrongful death claim and a loss of opportunity claim cannot go to the jury in the alternative. However, “[t]he clear rule in New Hampshire is that a plaintiff may seek to recover on alternative legal grounds. The only exceptions . . . are when the causes of action are mutually exclusive or mutually inconsistent.”xii
Claims for wrongful death and loss of opportunity are neither mutually exclusive nor mutually inconsistent. In fact, the Iowa Supreme Court recently held that such claims may be asserted in the alternative:
We are convinced that this should be allowed because a trier of fact might fail to find on the evidence that a negligent act was a proximate cause of a patient’s death yet believe that the negligence deprived the patient of a chance to survive.xiii
In the case of Estate of Hart v. Hartmanxiv, Superior Court Judge Larry Smukler instructed the jury on loss of opportunity in the alternative to wrongful death. Judge Smukler also gave the jury a special verdict form which broke down the relevant questions in sequence. It required the jury to first consider whether the defendants’ negligence was a proximate cause of the decedent’s death. If the answer was yes, the jury was instructed to state the full amount of damages and its job was completed. The jury was asked to consider the lost opportunity claim only if it found that the defendants’ negligence was not a proximate cause of the decedent’s death.
The jury returned a verdict in favor of the defendant on the wrongful death claim but found in favor of the plaintiff on the loss of opportunity claim and awarded damages in excess of one million dollars.
These cases recognize the fact that a claim for loss of opportunity is akin to a “lesser- included offense” of a claim for wrongful death. The jury should be allowed to consider the loss of opportunity claim even when it is not the focus of the plaintiff’s case-in-chief. The Iowa Supreme Court has addressed the issue as follows:
when the [loss of opportunity] claim is submitted in the alternative to ordinary wrongful-death damages it is unrealistic to require a claimant who is arguing that it is more probable than not that death resulted from the defendant’s negligence to also present evidence that the probability of survival was in fact some lesser percentage.xv
With this in mind, the Iowa court concluded that, even if the plaintiff does not affirmatively plead and prove a lost opportunity claim, the trial court should instruct the jury on both alternative claims and the jury can determine whether to award full damages or a reduced proportion “based on all of the evidence in the case.”xvi
V. Cases Governed By R.S.A. 507-E:2, III:
For those medical malpractice cases arising on or after June 30, 2003, R.S.A. 507-E:2, III states that the plaintiff’s burden of proof is “not satisfied by evidence of loss of opportunity for a substantially better outcome.” This does not mean, however, that a plaintiff is barred from recovering damages for negligent medical care any time his or her chances of survival or recovery were less than 50% even with proper medical care. In such cases, the statute still allows a plaintiff to make a claim “based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm . . .”
The phrase “ultimate harm” is not defined in the statute. It can be read, however, to refer to those elements of provable harm other than “loss of opportunity” for which the plaintiff seeks compensation. After all, a plaintiff whose cancer is misdiagnosed and allowed to grow and spread for a year and a half does not merely suffer a statistical diminution in his survival chances. He may suffer physical pain or discomfort that he would not otherwise have experienced. He may have to undergo different treatment modalities that are more costly and more unpleasant than those he would have needed if not for the defendant’s negligence. He may miss time from work that he would not have missed or experience periods of debilitation that he would not have experienced. He may suffer fear and anxiety that can be directly related to the diminished chances of survival as opposed to the underlying disease itself.
These are all “harms” that are proximately caused by the defendant’s negligence and they are unrelated to the plaintiff’s “lost opportunity.” The statute appears to allow claims for the pain and suffering, loss of enjoyment of life, medical expenses, and lost wages that are proximately caused by the defendant’s negligence. The only elements it does not allow are those normally associated with wrongful death such as funeral expenses, loss of enjoyment of life from the date of death through the decedent’s normal life expectancy, and lost earning capacity from the date of death through the decedent’s probable work-life. In this respect, the damages allowed under R.S.A. 507-E:2, III are analogous to those that can be recovered by a person injured in an auto accident who lives for several months and then dies from an unrelated heart attack.
The new statute also permits recovery when a person with a less-than-even chance of survival dies, not as a result of the underlying disease, but as a direct result of negligent medical care. The prime example of this is the Duke University case where a young girl with a grim prognosis was killed when she received a mismatched heart-lung transplant. Even though she probably would have died even if she received appropriate medical care, her actual death was caused by medical negligence rather than the underlying disease. Under R.S.A. 507-E:2, III, her estate would be allowed to make a wrongful death claim because, under the unique circumstances of that case, the “ultimate harm”—death—was proximately caused by the defendant’s negligence.
VI. Conclusion:
In Lord v. Lovett, our Supreme Court recognized that a person who has a less-than-even chance of survival or recovery due to a pre-existing condition is entitled to satisfactory medical care just like anyone else. For those cases that arose before June 30, 2003, Lord remains controlling. And for those cases that arise on or after June 30, 2003, there remain several viable claims that can be made to compensate those victims who cannot prove that they probably would have survived or recovered but for the defendant’s negligence.
146 N.H. 232 (2001).
Id., 146 N.H. at 238.
Id., 146 N.H. at 239.
R.S.A. 507-E:2, III.
Laws 2003, Chapter 208:3.
See Benson v. New Hampshire Insurance Guarantee Association, No. 2004-052, slip op. at 5 (N.H.Supr.Ct. decided December 29, 2004) (citing Conrad v. Hazen, 140 N.H. 249, 252 (1995)).
109 N.H. 501 (1969).
103 N.H. 56 (1964).
See supra note 8, 109 N.H. at 502.
Hewes v. Roby, 135 N.H. 476, 477 (1992) (citations and quotations omitted).
Mead v. Adrian, 670 N.W.2d 174, 180 (Iowa 2003).
Belknap County Superior Court Docket No. 00-C-187.
Mead, supra note 13, 670 N.W.2d at 180 fn. 5.