2008-807, JOSEPH SMITH & a. v. HCA HEALTH SERVICES OF NEW HAMPSHIRE, INC. d/b/a PORTSMOUTH REGIONAL HOSPITAL

or are supported by the record. For many years, Ms. Smith took a regimen of

and loss of consortium. We affirm.

The following facts were either found by the trial court to be undisputed

Regional Hospital, on the plaintiffs’ claims for false imprisonment, negligence defendant, HCA Health Services of New Hampshire, Inc. d/b/a Portsmouth order of the Superior Court (Smukler, J.) granting summary judgment to the HICKS, J. The plaintiffs, Joseph Smith and Laurie A. Smith, appeal an

brief and orally), for the defendant. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Todd Hathaway on the

orally), for the plaintiffs. Fitzgerald & Nichols, P.A., of Laconia (Paul T. Fitzgerald on the brief and

to press. Errors may be reported by E-mail at the following address: Opinion Issued: July 31, 2009

page is: http://www.courts.state.nh.us/supreme. JOSEPH SMITH & a.

No. 2008-807 editorial errors in order that corrections may be made before the opinion goes Belknap Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as management.” p. 2 facility were made by exercising my specialized knowledge in . . . pain

nurse and her employment history.

conclusions that I drew about the effect of the admission to the defendant’s

The disclosure included Mandl’s resume, which listed her certifications as a

and could judge whether her patients’ psychological symptoms intensified.

held in a ‘locked down’ unit”; and that “[a]ny factual observations or detoxification”; that in her “expert opinion,” Ms. “Smith should not have been opinions about the standards of care . . . for . . . issues . . . such as

expected or wanted the defendant to place Ms. Smith in a “lockdown” facility. testify as to the above-stated facts, particularly that neither she nor Ms. Smith witness on April 18, 2008. In their disclosure, they stated that she would However, she said she had often referred patients to detoxification facilities,

Smith's loss of consortium claim. The plaintiffs disclosed Mandl as an expert defendant’s actions exacerbated Ms. Smith’s psychological symptoms. acknowledged that she could not give expert testimony regarding whether the standard of care for an in-patient detoxification program. She also

motion, the plaintiffs attached an affidavit in which Mandl sought to “clarify” The court found that the plaintiffs’ claims for negligence and loss of consortium The trial court granted the defendant’s motion for summary judgment.

Hospital on August 19, 2004. seek treatment and admitted herself to defendant Portsmouth Regional these actions caused Ms. Smith to suffer emotional distress, resulting in Mr.

Mandl admitted that she did not consider herself to be an expert on the

The defendant moved for summary judgment. In their objection to the

Ms. Smith would be able to leave the facility at any time. Ms. Smith agreed to actions constituted false imprisonment, that the hospital acted negligently, that

The defendant deposed Mandl on June 17, 2008. During the deposition, hospital, and the hospital released Ms. Smith on August 21, 2004.

she voluntarily admit herself to a detoxification facility. Mandl assumed that The plaintiffs filed suit on February 24, 2007, alleging that the hospital’s alerted to this, Ms. Smith’s nurse practitioner, Lillian Mandl, suggested that 2004, she began taking more than her prescribed dose of medication. When release her when she requested. Mr. Smith and Mandl complained to the indicating she did not want to restrict visitors. The hospital also refused to staff prevented Mr. Smith from visiting her, though she signed a form Once admitted, Ms. Smith was placed in a “lockdown” facility. Hospital

suffered from unrelated psychological disorders, including depression. In prescribed pain medication after sustaining injuries in a car accident. She also proffer a suitable expert witness. p. 3 the plaintiffs’ claims are actions for medical injury and if the plaintiffs failed to of proof, and the trial court’s grant of summary judgment would be proper, if

E:2, I. Therefore, the plaintiffs would be unable to meet this statutory burden

plaintiffs suffered injuries which would not otherwise have occurred. RSA 507in accordance with this standard; and (3) as a proximate result thereof, the reasonable professional practice; (2) that the medical care provider failed to act

actions for medical injury, experts must testify: (1) as to the standard of

rendered by a medical care provider.” RSA 507-E:1, III (quotation omitted). In

consequences arising out of or sustained in the course of professional services “Medical injury” is defined as “any adverse, untoward or undesired medical injury” is an “[a]ction for medical injury.” (Quotation omitted.)

intent.

whether based in tort, contract or otherwise, to recover damages on account of

language is clear, we need not go beyond it for further indication of legislative

testimony. Under RSA 507-E:1, I, “any action against a medical care provider, (Supp. 2008) compels the plaintiffs to prove their claims by using expert “actions for medical injury” under RSA 507-E:1 (1997), then RSA 507-E:2 necessary expert testimony. Id. at 776-77. summary judgment. They also contend that Mandl is qualified to give any words used in statutes their plain and ordinary meanings, and when the In the Matter of Giacomini & Giacomini, 151 N.H. 775, 776 (2005). We give the When interpreting statutes, we are the final arbiters of legislative intent.

treatment in the defendant’s detoxification facility. If these claims constitute

(2005), is sufficient evidence of the applicable standard of care to withstand

The plaintiffs’ claims arise out of events that occurred during Ms. Smith's

expert testimony. They argue that the Patients’ Bill of Rights, RSA 151:21 of law to fact de novo. Id. matter of law, we will affirm. Id. at 792. We review the trial court’s application outcome of the litigation, and if the moving party is entitled to judgment as a reveal any genuine issues of material fact, i.e., facts that would affect the party. Dent v. Exeter Hosp., 155 N.H. 787, 791 (2007). If this review does not is beyond the ken of the average layperson. the affidavits and other evidence in the light most favorable to the non-moving claim required expert testimony because the standard for discharging patients We review the trial court’s grant of summary judgment by considering

On appeal, the plaintiffs contest the conclusion that their claims require

such testimony. 633, 635 (1995). The court further found that Mandl was not qualified to give

chapter 507-E did not govern the plaintiffs’ claim for false imprisonment, that required expert testimony under RSA chapter 507-E, and that even if RSA p. 4 E:2 explicitly states that plaintiffs “

negligence under RSA chapter 507-E.”

allow patients to freely communicate with family members. However, RSA 507secluding their patients, and RSA 151:21, XII, which requires that providers RSA 151:21, VIII, which prevents medical care providers from involuntarily of Rights that is “separate from the question of whether there was professional RSA 151:30 (2005) provides a cause of action for violations of the Patients’ Bill medical injury resulting from an alleged improper prescription). Furthermore, 4

meet their burden of proof, they have not requested relief under RSA 151:30.

standard. Specifically, they argue that the applicable standard is articulated in

be prescribed is insufficient to establish the standard of care in an action for

breach and the plaintiffs’ injuries. evidence as to the standard of care are therefore insufficient. that although the plaintiffs invoke the Patients’ Bill of Rights in an attempt to requirements that RSA 507-E:2 applies to actions for medical injury. We note action are all actions for medical injury under RSA 507-E:1. N.H. 762, 777 (2005). RSA 151:21 thus does not modify the strict evidentiary that this treatment imposed. RSA 507-E:1, III. Thus, the plaintiffs’ causes of Carlisle v. Frisbie Mem. Hosp., 152

not required because the Patients’ Bill of Rights, RSA 151:21, supplies that

Administration publication recommending how and when various drugs should Renna, 142 N.H. 788, 793-94 (1998) (holding that a Food and Drug the defendant’s breach of that standard and the causal connection between the See Bissett v. to disclose an expert capable of testifying as to the relevant standard of care, their burden of proof. RSA 507-E:2, I (emphasis added). Other forms of injury, the requirements of RSA 507-E:2 apply and the plaintiffs were required must include expert testimony” to meet

the plaintiffs allege that they suffered damages “arising out of” the restrictions legislature intended to cover.

providers,” The plaintiffs argue that expert testimony as to the standard of care is

Given that the plaintiffs’ causes of action are all actions for medical

indisputably a “professional service[] rendered by a medical care provider,” and plaintiffs’ causes of action are plainly within the universe of claims the “lockdown” detoxification facility. The defendant’s treatment of Ms. Smith was Lord v. Lovett, 146 N.H. 232, 237 (2001) (quotation omitted). The (2001), and by covering “all conceivable lawsuits against medical care series of events; namely, the defendant’s choice to treat Ms. Smith in a evidentiary burden on plaintiffs, see Francoeur v. Piper, 146 N.H. 525, 528 contain the costs associated with medical malpractice suits by elevating the support this conclusion. The legislature enacted this statutory scheme to Policy considerations behind the enactment of RSA chapter 507-E

imprisonment, negligence and loss of consortium – all arise out of the same In the instant case, the plaintiffs’ individual causes of action – false of admissible evidence of the standard of care; p. 5 because Ms. Smith strongly desired to leave. This statement, however, is bereft

plaintiffs’ case. symptoms. As a result, Mandl is unqualified to testify as to this element of the her opinion, the defendant should have released Ms. Smith from the facility symptoms or has made any conclusions as to the cause of Ms. Smith’s

whether the admission was the admission to the defendant’s facility, she did not consider herself an expert on

for an inpatient detoxification facility. Mandl does say she will testify that, in represents that she is qualified to give testimony on the causes of psychological

judge whether Ms. Smith’s symptoms of mental illness worsened after her

appear that Mandl is prepared to discuss what constitutes the standard of care Ms. Smith’s symptoms deteriorated following her admission. Mandl nowhere plaintiffs’ expert disclosure, in Mandl’s deposition or in her affidavit does it observation or conclusion in her affidavit or her deposition testimony is that care for pain medication and detoxification generally. But nowhere in the specialized knowledge in . . . pain management.” However, the only such

In her deposition, Mandl testified that although she considered herself able to

unable to give required expert testimony. that she does believe herself “well qualified” to testify about the standard of of the admission to the defendant’s facility were made by exercising my the trial court unsustainably exercised its discretion in finding that she was states that “any factual observations or conclusions that I drew about the effect particularly in light of her original deposition testimony, we cannot hold that

decision of the trial court if there are valid alternative grounds to support it.”). Town of Hooksett, 147 N.H. 184, 189-90 (2001) (“This court will sustain the Mandl was similarly unqualified to testify on causation. See Handley v.

a detoxification facility. Her later affidavit contradicts this statement, asserting explicitly that she did not consider herself an expert on the standard of care for evidence that Mandl was able to testify as to the standard of care, and testimony on the applicable standard of care. In her deposition, Mandl testified discharge of patients from inpatient detoxification facilities. Absent further

unsustainable exercise of discretion. determination that a witness is unqualified to testify as an expert absent an to testify with respect to the standard of care. We will not reverse a trial court’s

The trial court found that Mandl was not prepared to give expert

to exclude expert testimony). discretion in a trial court’s grant of a pre-summary judgment motion in limine Park Assocs., 139 N.H. 545, 548 (1995) (finding no unsustainable exercise of

that expert testimony was required and concluded that Mandl was unqualified In ordering summary judgment for the defendant, the trial court noted p. 6 6

a matter of law.

meet their burden of proof at trial, and the defendant is entitled to judgment as elements of the plaintiffs’ case. Therefore, the plaintiffs would be unable to plaintiffs did not proffer an expert qualified to testify as to all of the required

BRODERICK, C.J.