SB464: relative to periodic payments of future damages in medical injury actions.

SB 464 - AS INTRODUCED

2004 SESSION

04-3177

06/09

SENATE BILL 464

AN ACT relative to periodic payments of future damages in medical injury actions.

SPONSORS: Sen. Gallus, Dist 1

COMMITTEE: Judiciary

ANALYSIS

This bill permits an award of damages in a medical injury action to be paid in either periodic payments or a lump sum.

This bill also changes the definition of medical care provider for the purposes of medical injury actions.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04-3177

06/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to periodic payments of future damages in medical injury actions.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Intent. It is the intent of the legislature in adopting this act to authorize the entry of judgments in medical injury actions against medical care providers which provide for the payment of future damages through periodic payments rather than lump-sum payments. By authorizing periodic payment judgments, it is the further intent of the legislature that the courts may utilize such judgments to provide compensation sufficient to meet the needs of an injured plaintiff and his or her dependents for whatever period is necessary, while eliminating the potential windfall from a lump-sum recovery which was intended to provide long-term care for an injured plaintiff who dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended. It is also the intent of the legislature that all elements of the periodic payment program be specified with certainty in the judgment ordering such payments and that the judgment not be subject to modification at some future time.

2 Definitions. RSA 507-E:1 is repealed and reenacted to read as follows:

507-E:1 Definitions. As used in this chapter:

I. "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.

II. "Future damages" means damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor.

III. "Medical care provider" means a physician or other health care practitioner licensed, accredited, or certified to perform specified health services consistent with state law; a health care facility or agency licensed by the state or otherwise lawfully providing medical care or services, or an officer, employee or agent thereof acting in the course or scope of employment.

IV. "Medical injury" or "injury" means any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider, resulting from error in the performance of such services; from rendition of such services without informed consent or in breach of warranty or in violation of contract; from failure to diagnose; from premature abandonment of a patient or of a course of treatment; from failure properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

V. "Periodic payments" means the payment of money or delivery of other property to the judgment creditor at regular intervals.

3 New Section; Periodic Payment of Damages. Amend RSA 507-E by inserting after section 507-E:3 the following new section:

507-E:4 Periodic Payments.

I. In any action for injury or damages against a medical care provider, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments, rather than by a lump-sum payment, if the award equals or exceeds $50,000 in future damages. In entering a judgment ordering the payment, of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages. As a condition of authorizing periodic payments of future damages, the court shall require the judgment debtor who is not adequately insured to post security adequate to assure full payment of such damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of this security, or so much as remains, to the judgment debtor.

II.(a) The judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Such payments shall only be subject to modification in the event of the death of the judgment creditor.

(b) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in subparagraph (a), the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make such periodic payments, including court costs and attorney's fees.

III. Money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In such cases the court which rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subdivision.

IV. Following the occurrence or expiration of all obligations specified in the periodic payment judgment, any obligation of the judgment debtor to make further payments shall cease and any security given shall revert to the judgment debtor.

4 Effective Date. This act shall take effect January 1, 2005.