A medical malpractice case, also known as a medical negligence action, while fundamentally easy to understand, can be one of the most difficult cases to try in a New Hampshire courtroom. In a medical negligence action, the plaintiff must prove a claim that is very similar to an ordinary negligence case, such as a slip and fall or automobile accident. Specifically, the plaintiff must demonstrate that the medical provider was obligated to do a certain thing or refrain from doing a certain thing, the medical provider failed to act or refrain from acting, and as a result of the medical provider’s failure the plaintiff was injured.
Where a medical negligence action diverges from a more routine automobile accident or slip and fall case concerns the evidence the plaintiff must present at trial. There is a statue in New Hampshire which requires the plaintiff, in order to proceed with a medical negligence action, to introduce expert testimony which shows what the medical provider was supposed to do or not do when the treatment was rendered and that the medical provider’s failure to act in accordance with this “standard of care” caused the plaintiff’s injury.
The expert witness must be a person who is familiar with the standard of care that was in existence when the treatment was rendered. Usually this means another medical provider with training and experience similar or superior to the provider being sued. Attempts to “cut corners” with this expert witness can result in the jury disbelieving the expert or the court dismissing the action prior to the case even reaching the jury.
An example of such an extreme sanction occurred when a plaintiff claimed she was injured when an ophthalmologist prescribed an allegedly inappropriate medication for her. The plaintiff attempted to prove her case by calling a pharmacist to testify that the medication prescribed by the ophthalmologist was not appropriate. The plaintiff’s case was dismissed prior to reaching the jury because the court felt the pharmacist was not familiar with the standard of care that applied to ophthalmologists at the time the plaintiff was injured.
Successful prosecution of a medical negligence case requires a through analysis and understanding of the standard of care applicable to the medical provider who is the subject to the lawsuit as well as a thorough understanding of the treatment rendered and the results of that treatment. It is not enough that the plaintiff suffers an unfortunate outcome as the result of treatment. Only if the medical provider was negligent in performing the treatment can a claim for medical negligence possibly exist.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].