Gould v. Concord Hosp.

Decision Date18 April 1985
Docket Number84-368 and 84-376,Nos. 84-319,s. 84-319
Citation493 A.2d 1193,126 N.H. 405
PartiesNancy GOULD, Administratrix of the Estate of Erwin F. Gould v. CONCORD HOSPITAL et al.
CourtNew Hampshire Supreme Court

Winer, Pillsbury & Bennett, Nashua (Peter W. Bennett, Nashua, on the brief and orally), for plaintiff.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (John E. Friberg and Greg G. Peters on the brief, and Theodore Wadleigh, Manchester, orally), for defendant Concord Hospital.

Sulloway, Hollis & Soden, Concord (Warren C. Nighswander, Concord, on the brief and orally), for defendant Craig A. Campbell, M.D.


The issue before us is whether the superior court properly dismissed the plaintiff's wrongful death action against the defendants. We reverse and remand.

In considering a motion to dismiss, the plaintiff's allegations are regarded as true. Aldrich v. Beauregard & Sons, 105 N.H. 330, 331, 200 A.2d 14, 15 (1964). The plaintiff alleges the following. On November 25, 1980, the plaintiff's husband complained of severe chest pains and was taken to Concord Hospital. He was admitted to the hospital at about 10:00 a.m. under the care of A. Craig Campbell, M.D. At approximately 11:00 a.m. the plaintiff's husband was discharged. That evening he suffered a myocardial infarction. He was pronounced dead on arrival at the hospital.

Approximately three years after her husband's death, the plaintiff filed a medical malpractice action, sounding in negligence and contract, against Concord Hospital and Dr. Campbell. On the recommendation of the Master (Charles T. Gallagher, Esq.), the Superior Court (Temple, J.) held that the two-year limitations period in RSA 556:11 had run and dismissed the negligence and contract counts against Dr Campbell, and the negligence count and part of the contract count against the hospital. The portion of the contract count against the hospital that was not dismissed alleges that the hospital breached an implied contract to adopt and to enforce appropriate emergency procedures in its care of the decedent.

Both the hospital and the plaintiff contest the superior court's ruling. The hospital argues that the count alleging breach of an implied contract is, in substance, a tort claim and that it therefore is barred by RSA 556:11. The plaintiff argues that RSA 556:11 (Supp.1983), which provides a six-year limitations period, retrospectively governs this case, and, alternatively, that application of the two-year limitations period in RSA 556:11 denies the plaintiff equal protection of the law. We consider these arguments in turn.

Under RSA 556:11, an action in tort by or against a deceased party is barred two years after the party's death, unless the action was pending at the time of death. Guerin v. N.H. Catholic Charities, 120 N.H. 501, 505, 418 A.2d 224, 227 (1980). After the plaintiff's claims had expired under this provision, RSA 556:11 was amended to provide a six-year limitations period, RSA 556:11 (Supp.1983). An action in contract is not barred until six years after it accrues, RSA 508:4, I, regardless of a party's death in the interim. RSA 556:15; see Guerin supra. The trial court's decision that the implied contract count against the hospital is to be treated as a contract claim, and not as a tort claim, thus allowed the plaintiff to proceed with this claim, even though her other claims were held to be barred under RSA 556:11.

"Whether an action is one in tort or in contract 'is not determined by the form of [the] action but by its substance.' " Guerin, 120 N.H. at 505, 418 A.2d at 227 (quoting Lakeman v. LaFrance, 102 N.H. 300, 305, 156 A.2d 123, 127 (1959)). An agreement by a physician to effect a cure in her care of a patient, "as distinguished from a contract to furnish medical services generally and according to applicable standards," can support an action in contract. Cloutier v. Kasheta, 105 N.H. 262, 265, 197 A.2d 627, 628-29 (1964).

In the instant case, the plaintiff does not allege that the parties agreed that the hospital would effect a cure or even that the hospital would employ a particular means of emergency care. Rather, the plaintiff alleges that the hospital agreed to render medical services to the decedent and that this agreement was breached by the hospital's failure to provide "appropriate" emergency care. We can imagine no circumstances under which appropriate care would not also constitute reasonable care. We thus interpret the count to allege that the hospital breached an obligation to exercise reasonable care in the adoption and execution of its emergency procedures. The count "alleges an action for treatment in an improper manner rather than one for breach of a contract to achieve a promised result." Lakeman v. LaFrance, 102 N.H. 300, 305, 156 A.2d 123, 127 (1959). Viewed in this light, the count substantively alleges a claim in tort, not contract. This count, as well as the other counts, thus is barred unless the two-year limitations period in RSA 556:11 does not apply.

The plaintiff argues that the six-year limitations period in RSA 556:11 (Supp.1983) retrospectively governs the instant case. Our constitution prohibits retrospective laws. N.H. CONST. pt. I, art. 23. A law is retrospective if it impairs a vested legal right. Lakeman v. Moore, 32 N.H. 410, 412-13 (1855). A vested right "may relate to the grounds of the action, or the grounds of the defence, both of which seem to be equally protected by the constitution." Woart v. Winnick, 3 N.H. 473, 477 (1826). A right to assert the statute of limitations as a defense vests once the limitations period has run. Rockport v. Walden, 54 N.H. 167, 173-74 (1874). Since the limitations period had run against the plaintiff prior to the enactment of the amendment, application of the amendment would impair the defendants' vested right to assert the limitations defense and would thus operate as an unconstitutional retrospective law. Accordingly, we conclude that RSA 556:11 (Supp.1983) does not operate retrospectively in the case before us. See also Theberge v. Transportation Systems, 611 F.Supp. 368, (D.N.H. 1984).

The plaintiff next argues that application of RSA 556:11 violates principles of...

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