In any given medical negligence case, the “standard of care” for the specific provider in question is a factual question that must be established through expert testimony. This requirement is set forth by RSA 507-E:2(I), which enumerates the elements necessary for a plaintiff to meet his or her burden of proof. However, until recently, there were contexts where additional New Hampshire law impacted the standard of care depending on the education and licensing level of the treating provider.

The burden of proof in a medical malpractice case is largely defined by statute. RSA 507-E:2(I) states that in any action for medical injury, the plaintiff must prove the following through expert testimony:

(a) The standard of reasonable professional practice in the medical care provider's profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

In general, the rules of agency law hold principals responsible for the negligent acts of their agents. Principals provide their agents with authority to act on their behalf, and agents owe certain duties to their principals in exchange. Agency relationships arise in many contexts, but the most common example in personal injury cases is the employer-employee relationship. Under the doctrine of respondeat superior (in Latin, “let the master answer”), the employer is legally responsible for the harm caused by their employee so long as the employee was acting within the scope of their employment.

Until 1887, New Hampshire common law did not recognize the death of a human being as an “injury” and no right to bring a lawsuit existed.¹ The prevailing belief was that an injured person’s cause of action died with them, and no one left behind had legal standing to bring a lawsuit on behalf of the estate. Thus, for most of the 19th century the common law provided no redress for negligence that resulted in death, and arguably create a perverse incentive for negligent actors to allow the victims of their negligence to die in order to escape litigation.