2010-024, Petition of Juli George

Thomas G. Van Houten

No. 2010-024

Original

Amy Steadman, pro

Bouchard, Kleinman & Wright, P.A. ___________________________

George, seeks review of the order of the Superior Court (Brown DALIANIS, J. In this petition for original jurisdiction, the plaintiff, Juli

pursuant to RSA chapter 519-B. We affirm. screening panel for medical injury claims (medical injury screening panel) Substance Abuse Centers (CSAC) to refer her claim against it to a pretrial motion of defendant Merrimack River Medical Services, Inc. d/b/a Community

Centers. Merrimack River Medical Services, Inc. d/b/a Community Substance Abuse THE SUPREME COURT OF NEW HAMPSHIRE Sabin R. Maxwell on the brief, and Mr. Kleinman orally), for defendant

plaintiff.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as for leave to file an interlocutory appeal of the trial court’s ruling, see p. 2 subsequently, denied the plaintiff’s motion to reconsider. The plaintiff moved pursuant to RSA chapter 519-B. The court granted this motion and, plaintiff’s claim against it to a screening panel for medical injury claims

CSAC moved to defer a scheduled structuring conference and refer the

recover on it, she must prove that CSAC was negligent in its care, treatment plaintiff’s claim against CSAC is an “action for medical injury” because, to medical injury” because she is not a patient of CSAC. We conclude that the The plaintiff argues that her claim against CSAC is not an “action for

car, causing her to suffer injuries. (2010), and, thus, must be presented to a medical injury screening panel. See Steadman was asleep, her car crossed the centerline and struck the plaintiff’s CSAC is an “action for medical injury” within the meaning of RSA 507-E:1, I, III succumbed to the effects of methadone and fell asleep at the wheel. Because The narrow question before us is whether the plaintiff’s claim against that as a result of CSAC’s negligent treatment of Steadman, Steadman which might have exacerbated the effect of methadone. The plaintiff alleges whether Steadman was affected by other factors, such as drugs or alcohol, was under the influence of methadone; and (5) failed to monitor adequately plaintiff’s claims. (4) failed to intervene and prevent Steadman from leaving the clinic while she narrow issue. In particular, we express no opinion as to the viability of the have prevented Steadman from leaving the clinic in an impaired condition; against CSAC to a medical injury screening panel, we confine ourselves to this procedure for monitoring patients after they received methadone that would litigate only whether the trial court erred by referring the plaintiff’s claim methadone that should have been given to her; (3) failed to implement a proper RSA ch. 519-B (2007). Given that the parties have had an opportunity to under the influence of methadone; (2) failed to determine the proper dosage of (1) failed to monitor Steadman properly and/or supervise her while she was In her claim against CSAC, the plaintiff specifically alleges that CSAC:

8, which the trial court denied. This petition for original jurisdiction followed.

posed a substantial risk to third parties. foreseeable that her driving ability was impaired and that her impairment for allowing Steadman to leave the facility and drive despite it being reasonably Steadman was negligent for failing to drive safely and that CSAC was negligent result of having been given methadone at CSAC. The plaintiff alleged that that the accident happened because Steadman fell asleep at the wheel as a vehicle head-on, causing her to suffer “grievous injuries.” The plaintiff alleged plaintiff alleged that Steadman’s vehicle crossed the centerline and struck her In her 2009 writ against defendants Amy Steadman and CSAC, the injury as: p. 3 account of medical injury.” RSA 507-E:1, I. RSA 507-E:1, III defines a medical trial, the panel’s findings are admissible at trial. RSA 519-B:10, I; see provider, whether based in tort, contract or otherwise, to recover damages on into negotiations to pay the claim or admit liability” and if the claim goes to E:1, II. An “[a]ction for medical injury” is “any action against a medical care unanimously finds “in the plaintiff’s favor, the defendant shall promptly enter agree that CSAC is a “medical care provider” within the meaning of RSA 507greater than the fault on the part of the provider.” RSA 519-B:6, I. If the panel “[m]edical care provider,” and “[m]edical injury.” RSA 519-B:2. The parties provider is found, whether any fault on the part of the patient was equal to or definitions contained in RSA chapter 507-E for “[a]ction for medical injury,” the injury complained of”; and (3) “[i]f fault on the part of the medical care The medical injury screening panel statute specifically incorporates the care”; (2) “[w]hether the acts or omissions complained of proximately caused 3 the applicable standard of care by the medical care provider charged with that (1) “[w]hether the acts or omissions complained of constitute a deviation from

RSA 519-B:10, II; see RSA 519-B:8, I(c). without payment, or be subject to the admissibility of those findings” at trial. favor, the plaintiff shall release the claim or claims based on the findings, Following a hearing, the panel must answer three questions: 519-B:8, I(b). Conversely, if the panel unanimously finds “in the defendant’s

determination is nonbinding, unless the parties agree otherwise. See the panel” shall be forwarded to the panel, RSA 519-B:4, II. The panel’s interpretation, which presents a question of law that we review de all the relevant medical and provider records necessary to a determination by Resolving the issues in this petition requires that we engage in statutory panel shall be convened, and, “no later than 6 months from the return date . . . entry of a medical injury case,” RSA 519-B:3, II(a), a medical injury screening The medical injury screening panel statute provides that, “[u]pon the

B:4, IV. The parties may also agree to bypass the panel “for any reason.” Id.

statute in the context of the overall statutory scheme and not in isolation. Id. language that the legislature did not see fit to include. Id. We interpret a as written and will not consider what the legislature might have said or add meaning to the words used. Id. We interpret legislative intent from the statute examining the language of a statute, we ascribe the plain and ordinary Petition of Farmington Teachers Assoc., 158 N.H. 453, 456 (2009). When

patient. brought by a patient or that the “medical injury” at issue be suffered by a the pertinent statutes does not require that an “action for medical injury” be and supervision of Steadman. We further conclude that the plain language of court trial” and to “encourage the prompt resolution of claims.” Id p. 4 meritorious and non-meritorious claims without the delay and expense of a medical injury claims to a screening panel “is intended to help identify both against liability for medical injury.” RSA 519-B:1, I. The presentation of reparations system and . . . promote availability and affordability of insurance screening panel statute, which are to “contain the costs of the medical injury screening panel is entirely consistent with the purposes of the medical injury Transferring the plaintiff’s claim against CSAC to a medical injury

panel requirement. an “[a]ction for medical injury” and is subject to the medical injury screening unless she proves that CSAC was negligent in its treatment of Steadman, it is injuries. Because the plaintiff cannot recover on her claim against CSAC the wheel and crashed into the plaintiff’s car, causing the plaintiff to suffer because of CSAC’s negligent treatment of Steadman, Steadman fell asleep at Steadman, the plaintiff suffered adverse consequences. She contends that The plaintiff has also alleged that because of CSAC’s negligent treatment of and prevent her from leaving the clinic when she was impaired by methadone. was under the influence of other drugs or alcohol before giving her methadone, determine the right amount of methadone to give her, determine whether she and/or supervise her while she was under the influence of methadone, professional services it rendered to Steadman because it failed to: monitor definition. The plaintiff has alleged that CSAC was negligent in the The plaintiff’s allegations against CSAC fit comfortably within this

in the course of such services. rendition of such services; or otherwise arising out of or sustained

Here, resolving the plaintiff’s claim against CSAC will require determining P.C., 921 N.E.2d 963, 966 (Mass. 2010) (construing Massachusetts statute). sufficient evidence for the matter to proceed. See Vasa v. Compass Medical, see RSA 519-B:3, II(c)(2), applies its expertise to decide whether there is the medical injury screening panel, which includes a health care practitioner, properly to maintain equipment or appliances necessary to the injuries. RSA 519-B:6, I. When, as in this case, medical judgment is at issue, abandonment of a patient or a course of treatment; from failure complained of,” and whether the patient bears any responsibility for the in violation of contract; from failure to diagnose; from premature applicable standard of care,” whether they “proximately caused the injury such services without informed consent or in breach of warranty or or omissions of the medical care provider “constitute a deviation from the medical injury screening panel furthers this goal by reviewing whether the acts

omission in the performance of such services; from rendition of

medical care provider, whether resulting from negligence, error, or

sustained in the course of professional services rendered by a any adverse, untoward or undesired consequences arising out of or so stated. See p. 5 intended to limit the definition to injuries sustained by patients, it could have set forth in the plain language of the definition itself. Had the legislature statutory definition to the plaintiff’s claims complies with legislative intent, as determine the right dosage of methadone to give her. Therefore, applying this care provider, that is, the failure to monitor the patient’s treatment and consequences” that “aris[e] out of” professional services rendered by a medical In this case, the plaintiff’s claims are for “adverse, untoward or undesired

injured to be the patient. RSA 507-E:1, III defines a “medical injury” as “any Similarly, the definition of “medical injury” does not require the person 5

“such failure was the proximate cause of the injury complained of, resulting in finding that health care provider breached applicable standard of care and

, e.g., Ala. Code § 6-5-481 (9) (2005) (defining medical liability as

emphasis added.) conceivable lawsuits against medical care providers.” (Quotation omitted; 232, 237 (2001), the definition of “medical injury” is broad enough “to cover all injury suffered by a patient. Indeed, as we noted in Lord v. Lovett, 146 N.H. (Emphasis added.) Nothing in this language limits a medical injury to an the course of professional services rendered by a medical care provider.” adverse, untoward or undesired consequences arising out of or sustained in

921 N.E.2d at 967. plaintiff’s claim is subject to the medical injury screening statute. See Vasa, involves the medical treatment CSAC provided to Steadman. Accordingly, the as a predicate for its application”). Here, the plaintiff’s claim against CSAC tribunal statute “does not require the existence of a doctor-patient relationship 660 (Mass. 1999) (determining that Massachusetts medical malpractice medical malpractice tribunal for screening); see Santos v. Kim, 706 N.E.2d 658, medication and failure to advise patient not to drive was properly transferred to health care provider’s failure to warn patient about effects of prescription remove it from the scope of RSA chapter 519-B. See is required. Id The third-party nature of the plaintiff’s claim against CSAC does not. (holding that claim brought by wife of deceased motorist that defendant” that determine whether referral to a medical injury screening panel N.E.2d at 967. “It is the subject matter of the claim and the identity of the not affect whether the defendant’s medical judgment is at issue.” Vasa, 921 concluded in a case involving similar facts, “[t]he identity of the plaintiff does RSA 519-B:5, I(a), :6. As the Massachusetts Supreme Judicial Court “plaintiff” and does not require the “claimant” or “plaintiff” to be the “patient.” provides that cases shall be presented to the panel by the “claimant” or coverage to suits brought by recipients of medical treatment. The statute The medical injury screening panel statute contains no language limiting its

applicable professional standard of care. See RSA 519-B:6, I(a). whether CSAC’s acts or omissions toward Steadman deviated from the cases. Compare p. 6 around the country have reached different conclusions in factually similar negligent treatment of Steadman gave rise to a duty to the plaintiff. Courts generally, to a duty to non-patients, or whether, in particular, CSAC’s alleged whether a medical care provider’s negligent treatment of a patient gives rise, to review claims for medical injury by non-patients, we express no opinion as to Although we conclude that the statute requires medical screening panels

with negligence toward the patient. charged . . . with determining only whether the patient result of physician’s failure to take proper precautions when administering injury” claims depends upon whether the medical care provider is chargeable (physician has duty to unidentifiable third parties who may be injured as a non-patients, such as the plaintiff. The viability of the plaintiff’s “medical consistent with allowing the panels to address the “medical injury” claims of Cheeks v. Dorsey, 846 So. 2d 1169, 1173 (Fla. Dist. Ct. App.) the patient bears more or less fault than the medical care provider is entirely The fact that the screening panels are charged with finding only whether

The plaintiff also contends that because the screening panels “are

fault, see fault of the “patient” is equal to or greater than the medical care provider’s must make a finding about whether, if the medical care provider is at fault, the issue of comparative fault in its analysis of the merits of a non-patient’s claim.” The plaintiff argues that the fact that the medical injury screening panel than patients, the [screening panels are] required to leave unaddressed the key Accordingly, the plaintiff argues, “if the law is read to apply to claimants other authority to examine the comparative fault of any non-patient claimant.” than the medical care provider,” the panels “have neither the duty nor the

of insurance against liability for medical injury.” RSA 519-B:1, I. medical injury reparations system” and promoting “availability and affordability would conflict with the legislature’s stated goal of containing “the costs of the specifically incorporated into the medical injury screening panel statute, and contravene the broad definition of “medical injury,” which the legislature process.” Exempting an entire class of claims from the process would i.e., claims of professional negligence, are subjected to the screening panel notes: “[T]he statute’s goals are ensured only if all actions for medical injury, established by RSA [chapter] 507-E and RSA [chapter] 519-B.” As CSAC aptly override the overall purpose and broad scope of the statutory scheme patients. We agree with CSAC that this language “should not be interpreted to medical injury screening panel statute apply only to claims brought by

RSA 519-B:6, I(c), indicates that the legislature intended that the

158 N.H. at 456. legislature did not see fit to include. Petition of Farmington Teachers Assoc., damage to the patient”). We cannot add words to RSA chapter 519-B that the p. 7 Affirmed

BRODERICK, C.J.