You or a loved one has experienced injury due to negligence by a healthcare professional in New Hampshire. You've decided to pursue a medical malpractice lawsuit.
To prevail in such a lawsuit, patients must prove the following:
- A provider-patient relationship existed
- The provider was negligent (he or she did not provide treatment or care in a reasonably skillful and competent manner)
- The provider's negligence caused actual injury
- The injury you're claiming caused the damages you're attempting to recover
It goes without saying that the road ahead could be long and rough. That's why we've outlined the basics of how a medical malpractice case can progress in New Hampshire. Every claim is different, but having some basic information can help you know what to expect, which can, in turn, make the process more straightforward.
The Right Attorney
Retaining an experienced attorney can help you navigate New Hampshire's medical malpractice landscape. Medical malpractice is a unique area of the law, and you should look to a firm that has the resources and experience to handle this type of complex, expensive litigation.
Talk to a number of lawyers before deciding on the one you will hire. Think of it as giving an interview—you want the best, so you'll want a lawyer with extensive experience litigating medical malpractice cases, and trying them before juries. Your attorney should also have the negotiating experience and judgment to obtain the best possible results in a settlement, in the event your case doesn't go to trial.
The Investigation of Medical Records
The first thing a lawyer will do is ask for description of your case. She might ask, "Who do you think committed malpractice?" and ask for a description of the facts. Doctors are not legally responsible for all errors in diagnosis; sometimes nurses, physician's assistants, or other healthcare providers can be at fault.
Your lawyer will look at your medical records and bills and see if she thinks malpractice has happened from a legal standpoint. She'll then retain an expert to review the materials and offer an opinion. The gathering of records can take months, but this piece of the process is critical because medical malpractice cases are proven through expert testimony. You won't have a case if the expert witness can't opine that the defendant was negligent.
New Hampshire's "Early Offer" System
Claimants who don't want to go through the traditional court-based process can request an "early offer" from their medical providers. This "early offer" system, which took effect in New Hampshire in 2013, allows patients to seek specific payments from providers based on out-of-pocket expenses, as well as an additional amount for the nature of the injury. Though this system can deliver payments much faster, patients lose the opportunity to recover for pain and suffering, lost wages, or other damages recovered under the traditional court system. You should speak to an attorney before deciding whether to go through the “early offer” system.
The Pre-Litigation Screening Panel
After a medical malpractice lawsuit is filed in New Hampshire, parties might take part in a pre-litigation screening panel. The defendant medical provider can choose to waive the panel. If not, the case is screened by a three-person panel (made up of a retired judge or person with judicial experience, a health care practitioner who practices in the area of alleged medical negligence, and an attorney) before they can go to trial.
At the hearing, both parties present their respective cases and are able to examine and cross examine witnesses. If the panel finding is unanimous for the defendant, the jury at trial will be advised of the panel finding. If the panel finding is unanimous for the plaintiff, the defendant may be willing to settle the case.
Mediation and Negotiation
Mediation and negotiation is another avenue your case could take that doesn't lead to a jury trial. Attorneys usually start talking about this after the discovery process, when each party investigates the other's legal claims and defenses. Sometimes lawyers can work a settlement out amongst themselves. Other times, the attorneys and their respective clients will go to a mediation where a mediator, a neutral third party, will try to facilitate a settlement.
A Jury Trial
When mediation either does not take place or does not result in a settlement, the case is then scheduled for trial. Medical malpractice trials sometimes don't start when first scheduled and can last a week or even longer. All told, from filing the lawsuit to the screening panel and on to the trial, the whole process can take over two years.