New Hampshire Revised Statutes 507-E:2 – Burden of Proof
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I. In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses:
(a) The standard of reasonable professional practice in the medical care provider‘s profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
II. Without limiting the applicability of paragraph I of this section, where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person:
(a) The plaintiff shall have the burden of proving by affirmative evidence, which must include expert testimony of a competent witness or witnesses, that the treatment, procedure or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure or surgery as should reasonably have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other competent medical care providers with similar training and experience at the time of the treatment, procedure or surgery.
(b) In determining whether the plaintiff has satisfied the requirements of subparagraph (a) of this paragraph, the following matters shall also be considered as material issues:
(1) Whether the injured person or person giving consent on his behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure, or surgery;
(2) Whether the injured person or the person giving consent on his behalf knew of the risks or hazards inherent in such treatment, procedure, or surgery;
(3) Whether the injured party would have undergone the treatment, procedure, or surgery regardless of the risk involved or whether he declined to be informed thereof;
(4) Whether it was reasonable for the medical care provider to limit disclosure of information because such disclosure could be expected to adversely and substantially affect the injured person’s condition.
III. The requirements of this section are not satisfied by evidence of loss of opportunity for a substantially better outcome. However, this paragraph shall not bar claims based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition.
(a) The standard of reasonable professional practice in the medical care provider‘s profession or specialty thereof, if any, at the time the medical care in question was rendered; and
Terms Used In New Hampshire Revised Statutes 507-E:2
- Action for medical injury: means any action against a medical care provider, whether based in tort, contract or otherwise, to recover damages on account of medical injury. See New Hampshire Revised Statutes 507-E:1
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to any section of these laws, shall mean the section next preceding or following that in which such reference is made, unless some other is expressly designated. See New Hampshire Revised Statutes 21:13
- Medical care provider: means a physician, physician's assistant, registered or licensed practical nurse, hospital, clinic or other health care agency licensed by the state or otherwise lawfully providing medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment. See New Hampshire Revised Statutes 507-E:1
- person: may extend and be applied to bodies corporate and politic as well as to individuals. See New Hampshire Revised Statutes 21:9
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
II. Without limiting the applicability of paragraph I of this section, where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person:
(a) The plaintiff shall have the burden of proving by affirmative evidence, which must include expert testimony of a competent witness or witnesses, that the treatment, procedure or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure or surgery as should reasonably have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other competent medical care providers with similar training and experience at the time of the treatment, procedure or surgery.
(b) In determining whether the plaintiff has satisfied the requirements of subparagraph (a) of this paragraph, the following matters shall also be considered as material issues:
(1) Whether the injured person or person giving consent on his behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure, or surgery;
(2) Whether the injured person or the person giving consent on his behalf knew of the risks or hazards inherent in such treatment, procedure, or surgery;
(3) Whether the injured party would have undergone the treatment, procedure, or surgery regardless of the risk involved or whether he declined to be informed thereof;
(4) Whether it was reasonable for the medical care provider to limit disclosure of information because such disclosure could be expected to adversely and substantially affect the injured person’s condition.
III. The requirements of this section are not satisfied by evidence of loss of opportunity for a substantially better outcome. However, this paragraph shall not bar claims based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition.