New Hampshire Certificate of Merit / Expert Sufficiency Certification (Medical Injury)

CERTIFICATE OF MERIT / EXPERT SUFFICIENCY CERTIFICATION

(New Hampshire Medical Injury Action)

[Suitable for voluntary pre-suit attachment, Rule 11 record-building, or filing with a screening panel under any successor procedure]

TABLE OF CONTENTS

PART I — ATTORNEY CERTIFICATE OF MERIT (Form A)

1. Caption
2. Counsel's Certification
3. Statement of Expert Consultation
4. Statement of Good Faith Basis (N.H. R. Civ. P. 11)
5. Verification

PART II — EXPERT AFFIDAVIT IN SUPPORT OF MEDICAL INJURY CLAIM (Form B)

1. Caption
2. Affiant's Qualifications (RSA 507-E:3)
3. Materials Reviewed
4. Standard of Care
5. Breach of Standard of Care
6. Causation
7. Damages
8. Reservation
9. Oath / Notarization

PART I — ATTORNEY CERTIFICATE OF MERIT

(Form A)

1. CAPTION

THE STATE OF NEW HAMPSHIRE
[__________] COUNTY, SS.
SUPERIOR COURT
Docket No. [__________________]

2. COUNSEL'S CERTIFICATION

I, [ATTORNEY NAME], NH Bar No. [__________], counsel of record for Plaintiff in the above-captioned matter, hereby certify under penalty of perjury and pursuant to N.H. R. Civ. P. 11 as follows:

1. ☐ I have personally reviewed the relevant medical records, billing records, imaging studies, and other materials necessary to evaluate the merit of Plaintiff's medical injury claim.

2. ☐ I have consulted with a qualified expert who is licensed to practice medicine (or, where applicable, the relevant healthcare profession) in the United States; who is board-certified or otherwise qualified by training and experience in the same or substantially similar specialty as the Defendant healthcare provider(s); who has actively practiced or taught in the relevant specialty within the five (5) years preceding the act or omission complained of; and who satisfies the requirements of RSA 507-E:3 and N.H. R. Evid. 702.

3. ☐ Based on that consultation, I have a reasonable and good-faith belief that:
   a. There is a recognized standard of acceptable professional practice applicable to Defendant(s) at the time of the alleged conduct;
   b. Defendant(s) materially breached that standard; and
   c. Defendant(s)' breach proximately caused or substantially contributed to Plaintiff's injuries and damages.

4. ☐ The expert consulted has provided (or has agreed to provide) a written opinion supporting paragraphs 3(a)–(c), and is willing to testify at trial subject to ordinary scheduling and compensation arrangements.

5. ☐ I have evaluated the applicable statute of limitations under RSA 508:4 and any tolling provisions (including RSA 508:8 minor tolling and the New Hampshire discovery rule), and the action is timely commenced.

6. ☐ I am aware that RSA 519-B (Screening Panels for Medical Injury Claims) was repealed effective July 1, 2023, by 2023 N.H. Laws ch. 132 (SB 65), and that no statutory pre-suit panel filing is currently required.

3. STATEMENT OF EXPERT CONSULTATION

7. The expert consulted is identified as follows (identify by name and credentials, OR by qualifications only if the expert's identity is being withheld until formal Rule 26 disclosure):

☐ By Name:

• Name: [EXPERT NAME], M.D. / D.O. / Ph.D. / R.N.
• Specialty: [____________________]
• Board Certification(s): [____________________]
• Active Practice / Teaching Status: [Active practice / Active teaching / Both]
• Practice / Affiliation: [____________________]
• State(s) of Licensure: [____________________]

☐ By Qualifications Only (identity withheld pending Rule 26 disclosure):

• Specialty: [____________________]
• Board Certification: [____________________]
• Years of Practice / Teaching: [____]
• Active in the specialty within five (5) years preceding the alleged conduct: ☐ Yes ☐ No

4. STATEMENT OF GOOD FAITH BASIS (N.H. R. Civ. P. 11)

8. By signing the Complaint and this Certificate, undersigned counsel certifies under N.H. R. Civ. P. 11(a) that:

a. The Complaint is not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
b. The factual contentions have evidentiary support, or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;
c. The legal contentions are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and
d. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

5. VERIFICATION

I declare under the pains and penalties of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.

Executed at [____________], New Hampshire, on [__/__/____].

_________________________________
[ATTORNEY NAME], NH Bar No. [__________]
[Firm Name]
[Address]
[City, State, ZIP]
Tel: [(___) ___-____]
Email: [_______________]

PART II — EXPERT AFFIDAVIT IN SUPPORT OF MEDICAL INJURY CLAIM

(Form B)

1. CAPTION

THE STATE OF NEW HAMPSHIRE
[__________] COUNTY, SS.
SUPERIOR COURT
Docket No. [__________________]

2. AFFIANT'S QUALIFICATIONS (RSA 507-E:3)

I, [EXPERT NAME], [M.D. / D.O. / Ph.D. / R.N. / other], being duly sworn, depose and state as follows:

1. I am over the age of eighteen (18) and competent to testify to the matters set forth herein based upon my personal knowledge, education, training, and experience.

2. I am a licensed [physician / nurse / other healthcare professional] currently in active practice (or active teaching / academic appointment) in the specialty of [SPECIALTY].

3. My education and training include:
   - ☐ Medical / professional school: [____________________], graduated [YEAR];
   - ☐ Internship: [____________________], [YEAR];
   - ☐ Residency: [____________________], [YEAR];
   - ☐ Fellowship: [____________________], [YEAR];
   - ☐ Board Certification(s): [____________________], year(s) [____];
   - ☐ Active license in [____________________] State(s), License No(s). [____________];
   - ☐ Hospital staff appointment(s): [____________________];
   - ☐ Academic appointment(s): [____________________];
   - ☐ Publications and teaching in the specialty: see attached current curriculum vitae (Exhibit A).

4. I have actively practiced or taught in the specialty of [SPECIALTY] during at least the five (5) years preceding the act or omission alleged in this action, satisfying the qualification requirements of RSA 507-E:3.

5. I have not been retained by any party to this action as an expert except as described in this Affidavit, and my opinions are based on my independent professional judgment.

6. I am familiar with the recognized standard of acceptable professional practice for [SPECIALTY] practitioners practicing in similar circumstances at the time of the conduct alleged.

3. MATERIALS REVIEWED

7. In forming the opinions set forth in this Affidavit, I have reviewed the following materials:

• ☐ Medical records of [PROVIDER / FACILITY] for the date(s) [__/__/____] through [__/__/____];
• ☐ Hospital records of [HOSPITAL] for the admission(s) of [__/__/____];
• ☐ Imaging studies and radiology reports: [____________________];
• ☐ Pathology reports: [____________________];
• ☐ Laboratory results: [____________________];
• ☐ Operative / procedure reports: [____________________];
• ☐ Nursing records and flow sheets;
• ☐ Medication administration records;
• ☐ Consultation reports;
• ☐ Discharge summaries;
• ☐ Subsequent treatment records: [____________________];
• ☐ Autopsy report (if applicable);
• ☐ Deposition transcripts (if any);
• ☐ Relevant peer-reviewed medical literature, including: [____________________];
• ☐ Applicable practice guidelines, including: [____________________];
• ☐ Other: [____________________].

4. STANDARD OF CARE

(RSA 507-E:2, I(a))

8. The recognized standard of acceptable professional practice for a [SPECIALTY] practitioner treating a patient with [PRESENTING CONDITION] in [YEAR] required, among other things:

a. ☐ [Specific standard 1: e.g., obtaining a complete history and physical, including [specific elements]];
b. ☐ [Specific standard 2: e.g., ordering [diagnostic test] when [clinical indication] is present];
c. ☐ [Specific standard 3: e.g., obtaining timely [specialty] consultation when [criteria] are met];
d. ☐ [Specific standard 4: e.g., performing [procedure] in accordance with [technique / guideline]];
e. ☐ [Specific standard 5: e.g., recognizing and responding to [warning sign] within [time frame]];
f. ☐ [Specific standard 6: e.g., obtaining adequate informed consent disclosing [material risks]];
g. ☐ [Specific standard 7: e.g., providing post-procedural monitoring, including [vital signs / labs / observations] at [intervals]];
h. ☐ [Additional standards as applicable].

9. The basis for my opinion regarding the standard of care includes my own training and experience, the medical literature cited above, and applicable practice guidelines including [____________________].

5. BREACH OF STANDARD OF CARE

(RSA 507-E:2, I(b))

10. Based on my review of the materials identified in Paragraph 7, it is my opinion, to a reasonable degree of medical probability, that Defendant [NAME] materially deviated from the recognized standard of acceptable professional practice in the following respects:

a. ☐ [Specific breach 1: e.g., failing to order [diagnostic test] despite [clinical indication]];
b. ☐ [Specific breach 2: e.g., misinterpreting [imaging / lab / clinical finding]];
c. ☐ [Specific breach 3: e.g., failing to recognize [warning sign] documented at [time]];
d. ☐ [Specific breach 4: e.g., performing [procedure] using inappropriate technique, specifically [____]];
e. ☐ [Specific breach 5: e.g., failing to consult [specialty] when [criteria] were met];
f. ☐ [Specific breach 6: e.g., failing to disclose [material risk] before obtaining consent];
g. ☐ [Specific breach 7: e.g., failing to communicate critical finding to [provider]];
h. ☐ [Additional breaches as applicable].

6. CAUSATION

(RSA 507-E:2, I(c))

11. It is my further opinion, to a reasonable degree of medical probability, that the deviations identified in Paragraph 10 were a substantial factor in causing, and proximately caused, the injuries suffered by Plaintiff, including:

a. ☐ [Injury 1: e.g., delayed diagnosis of [condition], resulting in [worsened outcome]];
b. ☐ [Injury 2: e.g., progression of [disease] to a more advanced stage];
c. ☐ [Injury 3: e.g., need for additional [surgery / treatment]];
d. ☐ [Injury 4: e.g., permanent [physical / cognitive / functional] impairment];
e. ☐ [Injury 5: e.g., death];
f. ☐ [Additional injuries].

12. But for Defendant(s)' deviations, Plaintiff would more likely than not have avoided the injuries described above, OR (in the alternative) Defendant(s)' deviations were a substantial contributing factor that, combined with other causes, produced the injuries.

7. DAMAGES

13. The injuries described in Paragraph 11 have caused or will cause Plaintiff to incur:

• ☐ Additional medical, hospital, surgical, and rehabilitative expenses, both past and future;
• ☐ Loss of earnings and earning capacity;
• ☐ Pain, suffering, mental anguish, and loss of enjoyment of life;
• ☐ Permanent impairment, disability, or disfigurement;
• ☐ Reduced life expectancy [if applicable];
• ☐ Other damages, specifically: [____________________].

8. RESERVATION

14. The opinions expressed herein are based on the materials available to me as of the date of this Affidavit. I reserve the right to supplement, modify, or expand my opinions based on additional records, depositions, expert reports, peer-reviewed literature, or other materials produced during discovery.

15. Nothing in this Affidavit waives the work-product or expert-disclosure protections of N.H. R. Civ. P. 26.

9. OATH / NOTARIZATION

I, [EXPERT NAME], declare under the pains and penalties of perjury under the laws of the State of New Hampshire that the foregoing statements are true and correct to the best of my knowledge, information, and belief.

Executed at [____________], [State], on [__/__/____].

_________________________________
[EXPERT NAME], [M.D. / D.O. / Ph.D. / R.N.]

STATE OF [____________]
COUNTY OF [____________], SS.

On this [____] day of [____________], [YEAR], before me, the undersigned notary public, personally appeared [EXPERT NAME], [proved to me through satisfactory evidence of identification, to wit: [_______________]], to be the person whose name is signed on the preceding document, and acknowledged to me that he/she signed it voluntarily for its stated purpose.

_________________________________
Notary Public
My commission expires: [__/__/____]

[NOTARY SEAL]

ATTACHMENTS

• Exhibit A — Curriculum Vitae of Affiant
• Exhibit B — List of materials reviewed
• Exhibit C — Relevant peer-reviewed literature
• Exhibit D — Applicable practice guidelines

APPENDIX — HISTORICAL PRE-TRIAL SCREENING PANEL FRAMEWORK (RSA 519-B, REPEALED)

Historical Panel Composition (Former RSA 519-B:6)

The Screening Panel under repealed RSA 519-B consisted of three (3) members:

1. ☐ A New Hampshire-licensed physician in the same or substantially similar specialty as the defendant healthcare provider;
2. ☐ A New Hampshire-licensed attorney in good standing; and
3. ☐ An active or retired Superior Court judge or other qualified neutral, who served as panel chair.

Historical Panel Procedure (Former RSA 519-B:7–:9)

• ☐ The plaintiff or defendant filed a request for screening panel hearing;
• ☐ The panel chair scheduled a hearing within statutory time frames;
• ☐ The parties exchanged pre-hearing submissions, expert affidavits, and exhibits;
• ☐ The panel conducted an evidentiary hearing (typically 1 day) at which the parties presented opening statements, expert testimony (live or by deposition/affidavit), and closing argument;
• ☐ The panel deliberated and issued a written finding on three questions:
  (a) Whether the defendant healthcare provider's conduct deviated from the applicable standard of care;
  (b) Whether such deviation proximately caused the claimed injury;
  (c) [In some panels:] Whether contributory or comparative fault by the plaintiff applied.

Historical Effect of Panel Findings (Former RSA 519-B:10)

• ☐ A unanimous panel finding was admissible at trial;
• ☐ Panel findings were not binding (advisory only) but were admissible as evidence;
• ☐ Panel findings often shaped settlement posture even where the case proceeded;
• ☐ The statute of limitations was tolled during panel proceedings;
• ☐ The panel chair (judge) issued procedural rulings and the panel record was preserved.

SOURCES AND REFERENCES

• RSA 507-E:1 — Definitions
• RSA 507-E:2 — Burden of Proof / Required Proofs
• RSA 507-E:3 — Expert Testimony Required
• RSA 508:4 — Personal Actions / 3-year SOL with Discovery Rule
• RSA 508:8 — Minor Tolling
• N.H. R. Civ. P. 11 — Signing of Pleadings
• N.H. R. Civ. P. 26 — Discovery; Expert Disclosure
• N.H. R. Evid. 702 — Expert Testimony (Daubert standard)
• Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 148 N.H. 609 (2002) — adopting Daubert
• Brannigan v. Usitalo, 134 N.H. 50 (1991) — no damages cap
• 2023 N.H. Laws ch. 132 (SB 65) — Repeal of RSA 519-B (eff. July 1, 2023)
• New Hampshire Judicial Branch — https://www.courts.nh.gov
• New Hampshire General Court — https://gc.nh.gov/rsa/html/nhtoc.htm

END OF CERTIFICATE OF MERIT / EXPERT AFFIDAVIT