An often overlooked basis for liability in medical malpractice actions is the Patients' Bill of Rights statute, RSA 151:19-30. The statute requires that each hospital and other licensed healthcare facility adopt a policy setting forth patient rights, which must include at a minimum the 20 rights listed in the statute The statute further provides that the facility must provide a copy of the policy "to each member of the staff who shall be trained and involved in the implementation of the policy" and to each patient upon admission. RSA 151:20, I.

Most of the rights mandated by the statute do not directly concern how care is to be rendered and, thus, are not likely grounds for liability. These include, among other things, the right to have regular access to the unmonitored use of a telephone, RSA 151:21, XII, the right of a terminally ill patient to unrestricted visitation by family members, RSA 151:21, XVIII, the right to be informed in writing and language that the patient can understand of the facility's basic per diem rate, RSA 151:21, III, and the right to privacy during visits, RSA 151:21, XV.

Other aspects of the statute, however, relate directly to how care is rendered and are more relevant to liability claims. For example, RSA 151:21, V, provides that a patient "shall be transferred or discharged after appropriate discharge planning only for medical" and limited other specified reasons. (Emphasis added.) The statute's mandate of "appropriate discharge planning" arguably requires that a patient not to be discharged until assessments are made of the patient's condition and his or her ability to cope in the planned discharge environment and the availability of needed community supports. The adequacy of such assessments are sometimes critical liability issues, particularly in a psychiatric malpractice case where the plaintiff claims the defendant negligently discharged a patient with a known risk for suicide or violence.

A second patient right mandated by the statute that relates directly to how patient care is provided is:

• The patient shall be fully informed by a health care provider of his or her medical condition, health care needs, and diagnostic test results, including the manner by which such results will be provided and the expected time interval between testing and receiving results, unless medically inadvisable and so documented in the medical record, and shall be given the opportunity to participate in the planning of his or her total care and medical treatment, to refuse treatment, and to be involved in experimental research upon the patient's written consent only.

RSA 151:21, IV. The statute, thus, mandates that a patient "be fully informed" about specific aspects of the medical care being provided, an important subject in any case presenting claims that a healthcare provider negligently failed to provide a patient with adequate treatment information.

Entitled "Equitable and Other Relief," RSA 151:30 provides equitable and monetary remedies for violation of the statute. The statute grants the Superior Court "original jurisdiction over all proceedings under this subdivision," RSA 151:30, I, and empowers the Court to grant equitable relief to enforce patient rights mandated by the statute. Id. In addition, the statute mandates that damages be awarded to any patient whose rights have been violated as follows:

• Damages shall be assessed in a proceeding against a facility which violates this subdivision and the facility shall be liable for the sum of $50 for each violation per day or part of a day or for all damages proximately caused by the violation, whichever is greater.

RSA 151:30, II (emphasis added). In reliance on this provision, a plaintiff who has suffered medical harm as a result of a violation of the statute can assert a claim for damages.

In addition, the plaintiff can assert a statutory violation in the context of a traditional medical malpractice claim. The statute provides that "[v]iolations of this subdivision may be raised in any other proceedings for damages...." RSA 151:30, III. The statute, thus, contemplates that a patient who suffered harm as a result of a statutory violation can assert the violation in the context of a common law or other claim to recover damages.

The simplest way to incorporate a statutory violation in a medical malpractice claim is to assert the violation as negligence per se. The doctrine of negligence per se provides that "where a cause of action does exist at common law, the standard of conduct to which a defendant will be held may be defined as that required by statute, rather than as the usual reasonable person standard." Marquay v. Eno, 139 N.H. 708, 713 (1995)(citing Broderick v. Watts, 136 N.H. 153 (1992)). A statutory standard of conduct is applicable where (1) the injured person is a member of the class intended by the legislature to be protected, and (2) the harm is of the kind which the statute was intended to prevent. Marquay, 139 N.H. at 715. Implicit in this test is whether "the type of duty to which the statute speaks is similar to the type of duty on which the cause of action is based." Id. at 716. This is a question of law. See Lupa v. Jensen, 123 N.H. 644, 646 (1983).

The Patient Bill of Rights statute plainly meets the first requirement of this doctrine: patients are the class of persons the statute seeks to protect. The applicability of the second requirement, although more dependent on the facts of each case, will almost always be present given the statute's remedial purpose.

Ralph F. Holmes is a partner with McLane, Graf, Raulerson & Middleton and handles complex personal injury, commercial, and probate litigation.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer