Lord v. Lovett
146 NH 232, 770 A. 2d 1103 (2001)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
In a medical malpractice action, a plaintiff may recover damages for the loss of opportunity for a better outcome when a defendant’s negligence aggravates a preexisting injury, thereby depriving the plaintiff of a substantial chance for a better recovery. The lost opportunity itself is the cognizable injury, and damages are awarded for the value of that lost chance, not the entire underlying injury.
Facts:
- On July 22, 1996, Belinda Joyce Lord suffered a broken neck in an automobile accident.
- Dr. James Lovett and Dr. Samuel Aldridge treated Lord at the Lakes Region General Hospital.
- Lord alleges that the doctors negligently misdiagnosed her spinal cord injury.
- As a result of the alleged misdiagnosis, the doctors failed to properly immobilize her neck and did not administer steroid therapy.
- Lord claims that these failures caused her to lose the opportunity for a substantially better recovery.
- Lord alleges she continues to suffer from significant residual paralysis, weakness, and sensitivity as a result.
Procedural Posture:
- Belinda Joyce Lord sued Dr. James Lovett and Dr. Samuel Aldridge in New Hampshire Superior Court (trial court) for medical malpractice.
- In the trial court, Lord made a pre-trial offer of proof, conceding her expert could not quantify the degree to which she was deprived of a better recovery but would testify that the negligence caused the loss of a substantial opportunity.
- The defendants moved to dismiss, arguing that New Hampshire law does not recognize the 'loss of opportunity' theory of recovery.
- The Superior Court granted the defendants' motion and dismissed Lord's action, ruling that 'there’s no such theory permitted in this State.'
- Lord (as appellant) appealed the trial court's dismissal to the New Hampshire Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does New Hampshire law recognize a cause of action for 'loss of opportunity' when a physician's negligence allegedly deprives a patient of the chance for a substantially better recovery from a pre-existing injury?
Opinions:
Majority - Nadeau, J.
Yes. New Hampshire law recognizes a cause of action for the loss of an opportunity for a better outcome as a distinct injury in medical malpractice cases. The court formally adopts the 'third approach' to such claims, which treats the lost chance itself as the compensable harm. This approach avoids the harsh 'all-or-nothing' result of traditional tort causation rules, which required a plaintiff to prove the negligence was more than 50% likely to have caused the entire adverse outcome. The court reasoned that the state's medical malpractice statute, RSA chapter 507-E, defines 'medical injury' broadly enough to encompass the loss of opportunity. Furthermore, this doctrine does not relax the burden of proof, as a plaintiff must still prove by a preponderance of the evidence that the defendant's negligence 'probably' caused the specific injury claimed—the lost opportunity. The court distinguished prior dicta in cases like Pillsbury-Flood and held that difficulty in calculating damages is not a sufficient reason to deny recovery for a cognizable injury.
Concurring - Broderick, J.
Yes. While agreeing that the statutory definition of 'medical injury' is broad enough to include the loss of chance doctrine, this opinion expresses reservation. The concurrence notes the irony that a cause of action expanding tort liability is being established through a statute that was part of a comprehensive tort reform effort intended to limit liability and stabilize insurance markets for healthcare providers. The legislative history is ambiguous, with some evidence suggesting the legislature intended only to codify existing common law claims and other evidence suggesting it meant to cover 'all conceivable lawsuits.' Given this ambiguity, the majority's 'generous interpretation' of the statute cannot be rejected, but the legislature is urged to clarify the statute's scope if this outcome was unintended.
Analysis:
This decision is significant for formally recognizing the 'loss of opportunity' doctrine as a viable cause of action in New Hampshire medical malpractice law. By adopting the proportional damages approach, the court aligns the state with the modern trend and provides a remedy for plaintiffs who cannot meet the traditional, rigid 'more likely than not' causation standard for their entire injury. This ruling creates a new, compensable form of injury—the lost chance itself—which fundamentally alters the legal landscape for malpractice claims involving pre-existing conditions. Future litigation will likely focus on defining what constitutes a 'substantial' loss of opportunity and developing methodologies for valuing these claims.
Unlock the full brief for Lord v. Lovett