Carson v. Maurer

Decision Date31 December 1980
Docket Number80-273 and 80-291,80-099,80-252,Nos. 80-017,80-136,80-191,s. 80-017
Citation120 N.H. 925,424 A.2d 825
Parties, 12 A.L.R.4th 1 Kenneth E. CARSON v. L. Herbert MAURER, M. D. Diane C. ARMY v. William CUSACK, Jr., M. D. et al. Timothy WILLIAMS et al. v. Charles C. THOMPSON et al. Denise JEAN et al. v. Norman CRISP, M. D. et al. Thomas T. TAYLOR v. HITCHCOCK CLINIC, INC. et al. Theodore J. BONNEAU et al. v. HITCHCOCK CLINIC, INC. et al.
CourtNew Hampshire Supreme Court

Kenneth E. Carson, f/n/f Kimberly Carson and as administrator of the estate of Kimberly Carson, by brief and orally, pro se (80-017).

Wiggin & Nourie, Manchester (Richard B. McNamara, Manchester, orally), for plaintiff Diane C. Army (80-099).

Burns, Bryant, Hinchey, Cox & Shea, Dover, and Shuman, Ross & Spiliakos, Boston, Mass. (Howard S. Ross, Boston, Mass., orally), for plaintiffs Timothy Williams and Cynthia Williams (80-136; 80-191).

McLane, Graf, Raulerson & Middleton P.A., Manchester (Jack B. Middleton and Bruce W. Felmly, Manchester, orally), for plaintiffs Denise Jean, Dennis Jean, E. Harlan Connary and Patricia Connary (80-252).

McSwiney, Jones & Semple, Concord (Carroll F. Jones, Concord, orally), for plaintiff Thomas T. Taylor, as administrator of the estate of Laura R. Taylor and individually (80-273).

Brown & Nixon, Manchester (Michael P. Hall, Manchester, orally), for plaintiffs Theodore J. Bonneau and Norah M. Bonneau (80-291).

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Theodore Wadleigh, Manchester, orally), for defendants Mary Hitchcock Memorial Hospital and Wentworth-Douglas Hospital (80-099; 80-273).

Bell, Falk & Norton, Keene (Ernest L. Bell, III, Keene, orally), for defendants Charles C. Thompson and Norman G. Mireault, individually and d/b/a Rochester Family Planning Clinic (80-136; 80-191).

Orr & Reno, Concord, by brief for defendant Hitchcock Clinic, Inc. (80-273).

Sulloway, Hollis & Soden, Concord (Martin L. Gross and Warren C. Nighswander, Concord, orally), for defendants William E. Cusack, Jr., M. D., L. Herbert Maurer, M. D., Norman Crisp, M. D., Robert Hinckley, M. D., Julie Stiles, M. D., and Mary Hitchcock Memorial Hospital (80-017; 80-099; 80-252; 80-291).


The plaintiffs in these consolidated appeals challenge the constitutionality of RSA ch. 507-C (Supp.1979), governing actions for medical injury.

The plaintiffs here are also plaintiffs in underlying actions for medical injury; the defendants are medical care providers. In three of the actions below (Nos. 80-017, 80-099 and 80-136) the court granted the defendants' motions to dismiss for failure to comply with the notice requirement of RSA 507-C:5 (Supp.1979), and the plaintiffs appealed. The plaintiffs in 80-136 then moved to amend their complaint to reflect compliance with RSA 507-C:5 (Supp.1979); the trial court denied this motion, and the plaintiffs also appealed that ruling (80-191). Two other actions (Nos. 80-252 and 80-291) are here on interlocutory transfers without ruling from the Hillsborough County Superior Court, and a third action (No. 80-273) is here on certification from the United States District Court for the District of New Hampshire.

I. Introduction.

The statute in question is part of an effort by the legislature to address the problems of the medical injury reparations system. In enacting RSA ch. 507-C (Supp.1979), the legislature set forth rigorous standards for qualified expert testimony, created a two-year statute of limitations applicable to most medical malpractice actions, required that notice of intent to sue be given at least sixty days before commencing the action, prohibited the statement of the total damages claimed as an ad damnum or otherwise, abolished the collateral source rule, limited the amount of damages recoverable for non-economic loss to $250,000, empowered the court to order periodic payments of any future damages in excess of $50,000, and established a contingent fee scale for attorneys in medical malpractice actions.

In enacting RSA ch. 507-C (Supp.1979), the legislature sought to contain the costs of the medical injury reparations system by revising and codifying the applicable tort law. In its statement of findings and purpose, the legislature found

"... that substantial increases in the incidence and size of claims for medical injury pose a major threat to effective delivery of medical care in the state and that the risks and consequences of medical injury must be stabilized in order to encourage continued provision of medical care to the public at reasonable cost, the continued existence of medical care institutions and the continued readiness of individuals to enter the medical care field."

Laws 1977, ch. 417:1. Accordingly, RSA ch. RSA 507-C (Supp.1979) was intended to codify and stabilize the law governing medical malpractice actions and to improve the availability of adequate liability insurance for health care providers at reasonable cost. Laws 1977, ch. 417:1 II, III.

The plaintiffs first argue that RSA ch. RSA 507-C (Supp.1979) violates the equal protection guarantees of the United States and New Hampshire Constitutions, U. S. Const. Amend. XIV, § 1; N. H. Const. pt. I, arts. 2 and 12, in that it improperly singles out victims of medical negligence, as distinct from victims of other kinds of negligence, for harsh treatment by restricting the means by which they may sue and the damages they may recover for their injuries.

The medical malpractice statute establishes several classifications. First, it confers certain benefits on tortfeasors who are health care providers that are not afforded to other tortfeasors. Conversely, it distinguishes between those tort claimants whose injuries were caused by medical malpractice and all other tort claimants. The statute also distinguishes between medical malpractice victims whose non-economic loss exceeds $250,000 and those whose non-economic loss is $250,000 or less and between malpractice victims whose future damage awards exceed $50,000 and those who are awarded $50,000 or less for future damages. The issue is whether any of these classifications violates the equal protection mandate that "those who are similarly situated be similarly treated." Estate of Cargill v. City of Rochester, 119 N.H. 661, 665, 406 A.2d 704, 706 (1979), quoting Belkner v. Preston, 115 N.H. 15, 17, 332 A.2d 168, 170 (1975).

The plaintiffs contend that RSA ch. RSA 507-C (Supp.1979) impinges upon the exercise of their allegedly fundamental right to be indemnified for personal injuries, and that the statute is therefore unconstitutional unless supported by a compelling state interest. We have held, however, that the right to recover for one's injuries is not a fundamental right, Estate of Cargill v. City of Rochester, supra 119 N.H. at 666, 406 A.2d at 707, and courts in other jurisdictions have reached a similar conclusion in examining their state's medical malpractice statutes. See American Bank & Trust v. Community Hospital, 163 Cal.Rptr. 513, 517 (Cal.App.1980); Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399, 410 (1976), cert. denied 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585, 600 (Ind.1980). Furthermore, none of the classifications created by RSA ch. RSA 507-C (Supp.1979) involves the type of suspect classification, such as race, alienage or nationality, that would require strict scrutiny. See Johnson v. St. Vincent Hospital, Inc., supra at 596-97; Estate of Cargill v. City of Rochester, supra 119 N.H. at 667, 406 A.2d at 707; Belkner v. Preston, supra 115 N.H. at 18, 332 A.2d at 170-71.

Although the right to recover for personal injuries is not a "fundamental right," Estate of Cargill v. City of Rochester, supra 119 N.H. at 666, 406 A.2d at 707, it is nevertheless an important substantive right. Briscoe Co. v. Rutgers, 130 N.J.Super. 493, 500, 327 A.2d 687, 690 (1974); Hunter v. North Mason School Dist., 85 Wash.2d 810, 814, 539 P.2d 845, 848 (1975). In Estate of Cargill v. City of Rochester, supra 119 N.H. at 667, 406 A.2d at 707, we applied the rational basis test in evaluating classifications which, like those in RSA ch. 507-C (Supp.1979), place restrictions on an individual's right to recover in tort. We now conclude, however, that the rights involved herein are sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test. See Hunter v. North Mason School Dist., supra 85 Wash.2d at 814, 539 P.2d at 848. Consequently, the classifications created by RSA ch. RSA 507-C (Supp.1979) "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation" in order to satisfy State equal protection guarantees. (Emphasis added.) State v. Scoville, 113 N.H. 161, 163, 304 A.2d 366, 369 (1973), quoting F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920); see Allen v. Manchester, 99 N.H. 388, 390-91, 111 A.2d 817, 819 (1955); State v. Moore, 91 N.H. 16, 22, 13 A.2d 143, 148 (1940).

We recognize that recently the United States Supreme Court has restricted its application of this substantial relationship test to cases involving classifications based upon gender and illegitimacy. See, e. g., Lalli v. Lalli, 439 U.S. 259, 265, 99 S.Ct. 518, 523, 58 L.Ed.2d 503 (1979) (illegitimacy); Reed v. Reed, 404 U.S. 71, 76-77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (gender). In interpreting our State constitution, however, we are not confined to federal constitutional standards and are free to grant individuals more rights that the Federal Constitution requires. Opinion of the Justices, 118 N.H. 347, 349-50, 387 A.2d 333, 335 (1978); Angwin v. Manchester, 118 N.H. 336, 337, 386 A.2d 1272, 1273 (1978); see State v. Hogg, 118 N.H. 262, 264, 385 A.2d 844,...

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