In New Hampshire there is a law that immunizes public entities, like cities and counties, from many kinds of personal injury claims (NH RSA 507-B:5). Most of these statutory immunities are waived to the extent the public entity has liability insurance (NH RSA 507-B:7-a). In the 1980s the New Hampshire Municipal Association spearheaded an effort to allow Pooled Risk Management Programs [PRMP] to provide insurance coverage to public entities as an alternative to traditional insurance companies. Since then, two PRMPs were created to provide coverage ranging from health insurance to property insurance called Primex and Local Government Center. Both PRMPs provide contracts for liability insurance coverage that is the same as insurance sold by insurance companies. While both PRMPs describe thier products as insurance to the public and the public entities that they cover, they deny that they provide insurance when defending personal injury claims in court in an effort to claim statutory immunity for most types of claims. There are good arguments, that do not appear to have been reviewed by the trial courts that have considered the issue, that the liability coverage provided by PRMPs is RSA 507-B:7-a insurance that waives most statutory immunity provisions. Some of those arguments were summarized in an article published in the Trial Bar News, Volument 37, Winter 2012. A copy of that article is attached: Arguments Why PRMPs Provide Insurance.
Under current New Hampshire law, it is possible for a defendant in a personal injury case to request that a jury consider the fault of someone else for causing the injury to the plaintiff. This includes considering the fault of someone who is not involved in the litigation, is not represented by a lawyer and is not present for the trial. Defendants often seek to apportion fault to as many other people as possible in order to minimize the amount of fault a jury might assign to the defendant for causing the injuries. Since a defendant only pays that portion of a judgment for which he or she is at fault (unless the defendant is 50% or more at fault), there is a monetary incentive for defendants to point the finger at as many other potentially liable people as possible. However, a defendant cannot claim another is at fault without the trial court’s permission. In the case of Debenedetto v. C.L.D. Consulting Engineers, Inc., 153 N.H. 793 (2006), the New Hampshire Supreme Court held that any request by a defendant to hold someone else at fault must be preceded by written notice that describes the theory of liability to be used at trial. The Court described how a defendant has the same burden a plaintiff would have to request that a jury find fault with another person. As a result, defendants must provide a Debenedetto disclosure during pre-trial discovery. In a January 2013 Trial Order, the Trial Court held a defendant’s Debenedetto disclosure inadequate. Normally such a decision would prohibit the jury from considering the fault of anyone not present for trial. However, the Trial Court also permitted the defendant to make a new Debenedetto disclosure because there was time for additional discovery prior to trial and, in the Trial Court’s view, allowing a new disclosure was fair. The Trial Court stressed in its Order that the defendant had the burden to plead facts to support a claim of fault or risk having any new disclosure be ruled inadequate. See DeBenedetto Disclosure Order – Jan. 2013.
The First Circuit Court of Appeals recently remanded a civil rights case for a third trial after the jury awarded the plaintiff $14 million in damages. Shawn Drumgold was tried and convicted of murder in 1989. After serving 14 years of his life sentence, he moved for a new trial because evidence regarding the prosecution’s main witness had been withheld from him during the criminal trial. The evidence suggested that the prosecution’s witness had fabricated his testimony against the Drumgold in exchange for certain benefits. Drumgold filed a civil rights action against the investigating officer. The first jury hung on the issue of causation and a second jury awarded him $14 million – $1 million for each year he spent in prison. The First Circuit Court of Appeals remanded the case back for a third trial because it found that the trial judge had improperly instructed the jury on causation. First Circuit Decision 1.31.13.
Res ipsa loquitur is one of those Latin phrases lawyers like to use. It simply means the act speaks for itself. So when an accident happens that causes injury or property damage that would only happen if someone was at fault, or negligent, then the burden of proof shifts to the defendant to prove that he/she was not negligent. This burden shifting is important when there are multiple defendants who have the only knowledge about which one of them was actually negligent, or at fault, for causing an accident. For example, a few years ago a group of young adults held a party in a barn in Goffstown, New Hampshire. The barn burned down shortly after the party ended. The State Fire Marshall was able to determine that the fire was caused by someone leaving a lit cigarette on an old couch. The group of young adults were sued by the property owners, and the owners sought recovery based on res ipsa loquitur. The trial court agreed to allow the theory to proceed, and the burden shifted to each defendant to prove they did not leave behind the lit cigarette or face joint liability for the loss of the barn. The trial court issued two orders involving res ipsa loquitur and the application of burden shifting to multiple defendants. Order on Sumary Judgment (res ipsa); Order on Amended Writ (res ipsa).
The early offer law became effective in our state on January 1, 2013. This law, which was passed over Governor Lynch’s veto, permits medical providers to make early settlement offers to patients injured by medical negligence that excludes damages that are allowed under the law. For example, if an injured person elects the early offer system, he or she would give up the right to be compensated for pain and suffering, emotional distress and lost earning capacity; that person’s spouse would give up the right to make a claim for lost services, support and companionship. The early offer law also requires that the injured patient submit future medical expenses when they are due and the injured patient is then at the mercy of the provider for payment of these expenses.
The early offer law includes a waiver of rights form. This waiver may have been included in administrative paperwork signed by the patient and the patient may not even realize he or she has opted in to the system. A patient considering whether to opt in must be cautious because if one opts in and does not accept the settlement offer, his or her trial rights will be adversely affected.
The law requires that the medical provider obtain legal counsel for the injured person at the provider’s expense. Again, caution is advised because the attorney has limited responsibilities.
Our attorneys are knowledgeable about medical malpractice cases and the early offer law. There is no charge for an initial consultation.
McDowell and Osburn, PA 603-623-9300