New Hampshire’s Supreme Court has twice ruled caps on noneconomic damages to be unconstitutional (the first set at $250,000 and the second at $875,000). As a result there is no general limit on damages that may be awarded in malpractice cases. However, in cases of wrongful death awards are limited to $50,000 if the recovering party is not a direct spouse, child, parent, or direct dependent. Additionally, damages for loss of society or companionship are only available to spouses, and may not exceed $150,000. Punitive damages have been outlawed in New Hampshire.
While tort reform has not been especially successful in New Hampshire, the state does allow for voluntary submission of a claim to a medical review panel prior to litigation. According to reports conducted by the state the use of these panels does tend to reduce both the likelihood of a claim going to trial and the size of any damages awarded.
While there is a statute of limitations that is specific to medical malpractice on the books in New Hampshire the New Hampshire Supreme Court has ruled it to be unconstitutional. The effect of this is that malpractice cases fall under the general wrongful death and personal injury statute of limitations for the state. That statute allows the claimant up to three years from the date of the alleged malpractice to bring a complaint.
An exception to this deadline occurs in situations where the claimant could not reasonably have learned about the alleged medical malpractice at the time it occurred, such as when a foreign object is left in the body. When this occurs the lawsuit must be commenced within three years of the time the plaintiff discovers the alleged malpractice or should reasonably have discovered it given due diligence.
Finally, a minor who is injured while under the age of eight has until his or her 10th birthday to have a claim filed, and those suffering from a disability such as mental incompetency may have the statute tolled, or paused, until the disability is removed.
New Hampshire, the “Live free or die” state, has proven relatively opposed to most tort reform, seeing many of the most common measures as violations of the state’s constitution. So, it is not likely that limits on damages or a stricter statute of limitations for malpractice will be put into place in New Hampshire any time in the near future.
However, despite the resistance to tort reform measures shown by the court, New Hampshire physicians continue to see average premium prices compared to other New England states. While rates in New Hampshire range from 10-20% higher than average when compared to the rest of the country, in a study done by the New Hampshire Department of Insurance rates for general surgery, internal medicine, and ob/gyns all fell right in the middle when compared to Connecticut, Rhode Island, Maine and Vermont.
Expect the medical professional liability insurance market in New Hampshire to remain relatively stable for the time being. The court has spoken and the current rates likely reflect the state of the market as it is likely to remain for some time. One exception to this outlook would be that if further competition and diversity is introduced to the market rates could drop.