Francoeur v. Piper
| Decision Date | 22 June 2001 |
| Docket Number | No. 99–188.,99–188. |
| Citation | 146 N.H. 525,776 A.2d 1270 |
| Parties | Normand C. FRANCOEUR, Administrator of the Estate of Joyce Francoeur and Individually, v. Jurgen PIPER, M.D. & another. |
| Court | New Hampshire Supreme Court |
Hall, Hess, Stewart, Murphy & Brown, P.A., of Manchester (Michael P. Hall and Francis G. Murphy, Jr. on the brief, and Mr. Hall orally), for the plaintiff.
Bouchard & Mallory, P.A., of Hampton (Robert D. Lietz and Kenneth G. Bouchard on the brief, and Mr. Bouchard orally), for the defendants.
The plaintiff, Normand C. Francoeur, individually and as the administrator of the estate of his wife, Joyce Francoeur, appeals following a jury verdict in Superior Court (Brennan , J.) in favor of the defendants, Jurgen Piper, M.D. and his employer, the Orthopaedic Center. The plaintiff argues that the trial court erred in instructing the jury regarding the elements of medical negligence. We reverse and remand.
Mrs. Francoeur suffered a broken right ankle when she fell from her wheel chair as it veered off a ramp. At the time, she suffered from multiple complications associated with her diabetic condition. In the emergency room, Dr. Piper treated her ankle fracture
by applying a cast. Later, upon removing the cast, Dr. Piper found an area of necrotic skin. Despite attempts to ward off infection, Mrs. Francoeur's leg became gangrenous and later was amputated. The plaintiff filed this medical malpractice claim alleging that Dr. Piper failed to act according to the standard of reasonable professional practice in his treatment of Mrs. Francoeur's fractured ankle. See RSA ch. 507–E (1997); Leighton v. Sargent , 27 N.H. 460, 475, 1853 WL 2490 (1853). He specifically alleged that Dr. Piper's failure to appropriately treat the infection in Mrs. Francoeur's leg resulted in its amputation.
On appeal, the plaintiff raises two issues regarding the jury instructions given at trial. He first claims the trial court erred in instructing the jury on common law professional negligence. The trial court gave the standard jury instructions defining malpractice, professional negligence, and standard of care. See N.H. Civil Jury Instructions 3d . §§ 13.1–13.3 (2000). The trial court also instructed the jury on the burden of proof as defined by RSA 507–E:2, I (1997). See also N.H. Civil Jury Instructions 3d . § 13.6 (2000). The plaintiff argues that RSA chapter 507–E abrogated all common law in a medical malpractice claim because RSA 507–E:1 (1997) broadly defines medical injury to include all actions "whether arising from negligence, error, omission ... or otherwise arising out of or sustained in the course of [providing medical] services." Therefore, he asserts the trial court should have limited its instructions to the language set forth in RSA 507–E:2, I, because the legislature intended to supersede all common law causes of action for medical malpractice including negligence. He contends that because he "never argued the case in terms of negligence," the court erred in instructing the jury on common law professional negligence. We disagree.
The second section sets forth specific requirements for meeting the burden of proof for any action in medical injury:
The express purpose of this section is to specify the kind of evidence a plaintiff must present at trial. It requires a plaintiff to provide expert testimony to prove each of the elements supporting a claim. The plaintiff agrees that he "argued and presented evidence concerning what the standard of care was; that that standard of care had been breached; and that that breach caused injuries that otherwise would not have occurred." Although the plaintiff asserts that this claim does not sound in negligence, these are precisely the elements of a common law professional negligence claim. See Leighton , 27 N.H. at 475, 1853 WL 2490; see also Bronson v. Hitchcock , 140 N.H. 798, 801, 677 A.2d 665 (1996). Thus, in this case the plaintiff cannot claim the court erred in instructing the jury on negligence simply because he chose to avoid using the word "negligence" in pleading and presenting his case.
We also find no support for the plaintiff's argument that the legislature intended RSA 507–E:2, I, to modify the elements of a medical malpractice claim such that breaching the standard of care no longer is synonymous with negligence. The plaintiff contends this purported change means that the trial court erred when it explained the law regarding a breach of the standard of care in terms of negligence. This error, he argues, impermissibly included an element of negligence, not required by the language specifically set forth in RSA 507–E:2, I. Both the language and history of RSA 507–E:2, I, demonstrate that the legislature did not intend such a result.
In 1977, the legislature enacted RSA chapter 507–C (1997), a "comprehensive system of recovery in the field of medical negligence." Carson v. Maurer , 120 N.H. 925, 946, 424 A.2d 825 (1980). In doing so, "the legislature sought to contain the costs of the medical injury reparations system by revising and codifying the applicable tort law." Id . at 930, 424 A.2d 825; see also Laws 1977, 417:1. We subsequently held that "significant provisions of RSA chapter 507–C [were] unconstitutional." Carson , 120 N.H. at 945, 424 A.2d 825. Because "we [were] not sure that the remaining provisions of RSA chapter 507 C would have been enacted without the rest, ... [we] declare[d] the [entire] chapter void." Id .
In 1986, the legislature enacted RSA chapter 507–E. See Laws 1986, 227:4. The language of RSA 507–E:2, I, essentially is a re-enactment of RSA 507 C:2, I (1997). The legislative bill that included RSA 507–E:2, I, was entitled "An Act Relative to Tort Reform and Insurance." Laws 1986, ch. 227. RSA 507–E:2 is entitled "Burden of Proof," and sets forth the following standard: "[T]he plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness [to prove the standard of care, breach of the standard of care, and causation]." RSA 507–E:2, I (emphasis added). This language, read in light of a clear legislative intent to contain the costs associated with medical malpractice claims, supports the conclusion that rather than lowering the burden for plaintiffs, the legislative purpose was to impose strict evidentiary requirements. The legislative history provides no support for the plaintiff's reading of the statute. Consequently, we reject the plaintiff's claim that the trial court erred in instructing the jury on negligence.
Second, as a separate issue concerning the instructions on negligence, the plaintiff objected to the trial court's instruction that "[a] mere error in judgment, made in the proper exercise of judgment, is not professional negligence." On appeal, the plaintiff contends that when the jury considers the proper standard of care, an error of judgment is negligence, and without further explaining what constitutes the "proper exercise of judgment," the instruction "allowed the jury to erroneously conclude that bad judgment based on ignorance could not be a basis for liability as long as Dr. Piper genuinely cared about [Mrs.] Francoeur."
In determining whether a defendant has met the applicable standard of care, the jury shall consider whether the defendant, having the knowledge and skill to act as a professional, "neglected to apply [that knowledge and skill] with such care and diligence as in his judgment, properly exercised , the case must have appeared to require; in other words that he neglected the proper treatment from inattention and carelessness." Morrill v. Tilney , 128 N.H. 773, 779–80, 519 A.2d 293 (1986) ; see RSA 508:13 (1997). Due care, however, may permit a doctor to exercise judgment in choosing among several courses of treatment. Rogers v. Meridian Park Hospital , 307 Or. 612, 772 P.2d 929, 930–31 (1989).
In this case, the defendants assert that in the course of treating Mrs. Francoeur, Dr. Piper had multiple options from which to...
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