New Hampshire Notice of Intent to Sue (Medical Injury)

NOTICE OF INTENT TO COMMENCE A MEDICAL INJURY ACTION

(New Hampshire — RSA Chapter 507-E)

TABLE OF CONTENTS

1. Caption / Addressees
2. Introduction
3. Identity of the Patient and Authorized Representative
4. Statutory Basis
5. Factual Background
6. Standard of Care
7. Breach of Standard of Care
8. Causation
9. Damages
10. Demand for Records (RSA 332-I)
11. Demand for Insurance Information
12. Notice of Spoliation Duties
13. Settlement Demand and Response Deadline
14. Reservation of Rights
15. Statute of Limitations Notice
16. Apology Statute Acknowledgment
17. Signature and Service
18. Certificate of Service

1. CAPTION / ADDRESSEES

[FIRM LETTERHEAD]

Date: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS U.S. MAIL

Re: Notice of Intent to Commence a Medical Injury Action under RSA Chapter 507-E
Patient: [PATIENT NAME], DOB [__/__/____]
Date(s) of Treatment / Injury: [__/__/____] through [__/__/____]
Our File No.: [__________]

2. INTRODUCTION

Dear Sir/Madam:

Please be advised that this firm represents [PATIENT NAME] (the "Patient") [and the Estate of [DECEDENT NAME]] in connection with a contemplated medical injury action arising from the medical care and treatment provided to the Patient by you and/or your institution. By this Notice, we formally inform you of the Patient's claim and invite a pre-suit dialogue with you and your liability insurer. We trust that prompt and good-faith engagement may resolve this matter without the need for litigation.

Although New Hampshire law does NOT currently require a statutory pre-suit notice (RSA Chapter 519-B having been repealed effective July 1, 2023, by 2023 N.H. Laws Chapter 132), this Notice is provided in the interests of efficiency, settlement, and good-faith pre-litigation investigation, and to satisfy any contractual notice obligations and your insurer's prompt-notice requirements.

3. IDENTITY OF THE PATIENT AND AUTHORIZED REPRESENTATIVE

The Patient is identified as follows:

A signed HIPAA-compliant Authorization for the Release of Protected Health Information is enclosed herewith as Exhibit A.

4. STATUTORY BASIS

This Notice is provided pursuant to RSA Chapter 507-E (Medical Injury Actions), and in particular references the following provisions:

• ☐ RSA 507-E:1 — defining "medical care provider," "medical injury," "patient," and related terms;
• ☐ RSA 507-E:2 — establishing the affirmative-evidence burden of proof on (a) the recognized standard of care, (b) breach, and (c) causation;
• ☐ RSA 507-E:3 — establishing expert qualification requirements;
• ☐ RSA 507-E:4 — providing that benevolent gestures and apologies are inadmissible as admissions of liability;
• ☐ RSA 508:4 — establishing the three-year statute of limitations subject to the discovery rule;
• ☐ RSA 508:8 — minor tolling provision;
• ☐ RSA 332-I:1 — patient's right to access medical records.

This Notice references but does NOT invoke RSA Chapter 519-B (Screening Panels for Medical Injury Claims), which was repealed effective July 1, 2023, by 2023 N.H. Laws Chapter 132 (SB 65). No mandatory pre-suit screening panel proceeding is required.

5. FACTUAL BACKGROUND

5.1 The Physician–Patient Relationship

On or about [__/__/____], the Patient presented to [PROVIDER / FACILITY] for [purpose of visit: evaluation / treatment / surgery / emergency care] of [presenting condition].

5.2 The Course of Treatment

[Describe chronologically: presenting symptoms; relevant history; examinations performed; tests ordered or omitted; differential diagnoses considered; diagnosis rendered; treatment plan; procedures performed; medications prescribed; follow-up care.]

☐ [____________________________________________________________].
☐ [____________________________________________________________].
☐ [____________________________________________________________].
☐ [____________________________________________________________].
☐ [____________________________________________________________].

5.3 The Adverse Outcome

As a direct and proximate result of the conduct described above, on or about [__/__/____], the Patient suffered [describe injury: e.g., delayed diagnosis of malignancy; surgical injury to organ; retained foreign body; permanent neurological deficit; sepsis; death]. The Patient's subsequent course included [____________________].

6. STANDARD OF CARE

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

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

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 at [intervals]];
h. ☐ [Additional standards as applicable].

7. BREACH OF STANDARD OF CARE

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

Based on careful review of the medical records and consultation with a qualified expert satisfying the requirements of RSA 507-E:3, the Patient asserts that the named healthcare providers materially deviated from the recognized standard of acceptable professional practice in the following respects:

a. ☐ [Specific breach 1];
b. ☐ [Specific breach 2];
c. ☐ [Specific breach 3];
d. ☐ [Specific breach 4];
e. ☐ [Specific breach 5];
f. ☐ [Specific breach 6];
g. ☐ [Additional breaches as applicable].

8. CAUSATION

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

The deviations identified in Section 7 were a substantial factor in causing, and proximately caused, the injuries suffered by the Patient. Specifically:

a. ☐ [Causation 1: e.g., the failure to order [test] caused a delay in diagnosis of [condition], which permitted the disease to progress to [stage]];
b. ☐ [Causation 2];
c. ☐ [Causation 3];
d. ☐ [Additional causation as applicable].

But for the conduct described above, the Patient more likely than not would have avoided the injuries described in Section 9, OR (in the alternative) the conduct was a substantial contributing factor that, combined with other causes, produced those injuries.

9. DAMAGES

The Patient has sustained, and will continue to sustain, the following damages:

• ☐ Past medical, hospital, surgical, and rehabilitative expenses, currently totaling approximately $[__________];
• ☐ Future medical and rehabilitative expenses, estimated at $[__________] (present value);
• ☐ Past lost earnings of approximately $[__________];
• ☐ Future lost earnings and loss of earning capacity, estimated at $[__________] (present value);
• ☐ Past and future pain and suffering, mental anguish, and loss of enjoyment of life;
• ☐ Permanent impairment / disfigurement / disability;
• ☐ Loss of consortium of [spouse / parent / child];
• ☐ Wrongful death damages (if applicable), pursuant to RSA 556:9–:14;
• ☐ Pre- and post-judgment interest pursuant to RSA 524:1-a / 524:1-b;
• ☐ Costs of suit;
• ☐ Other: [____________________].

New Hampshire does NOT impose a statutory cap on damages in medical injury actions. Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).

10. DEMAND FOR RECORDS (RSA 332-I)

Pursuant to RSA 332-I:1 (Patient Access to Medical Records), the Patient hereby demands a complete, certified copy of the following records within thirty (30) days of receipt of this Notice:

• ☐ All medical records, including handwritten and electronic notes, for treatment dates [__/__/____] through [__/__/____];
• ☐ All hospital records, including admission summaries, operative notes, anesthesia records, nursing flow sheets, medication administration records, vital sign records, and discharge summaries;
• ☐ All imaging studies (CT, MRI, X-ray, ultrasound, etc.) on CD/DVD or via electronic transfer, AND all radiology reports;
• ☐ All pathology slides and reports;
• ☐ All laboratory results;
• ☐ All telephone messages, secure-message logs, patient-portal communications, and email correspondence;
• ☐ All consultation reports;
• ☐ All billing records and itemized invoices;
• ☐ Incident reports, root-cause analyses, and other quality-assurance documents (subject to the qualified privilege of RSA 151:13-a, which the Patient reserves the right to challenge);
• ☐ All policies, procedures, and protocols in effect on the dates of treatment relevant to the conduct alleged;
• ☐ Any peer-review materials (subject to applicable privilege).

A signed HIPAA-compliant Authorization is enclosed as Exhibit A.

11. DEMAND FOR INSURANCE INFORMATION

The Patient demands that you (or your institution's risk management department) identify within fifteen (15) days of receipt:

• ☐ The name and address of each liability insurer providing primary, excess, or umbrella coverage applicable to the conduct alleged;
• ☐ The applicable policy numbers and policy limits;
• ☐ The name, address, and email of the assigned claims adjuster or coverage attorney;
• ☐ Any reservation-of-rights position or coverage dispute that may affect the carrier's authority to negotiate.

12. NOTICE OF SPOLIATION DUTIES

You are formally placed on notice of your obligation to preserve all evidence relevant to this claim, including but not limited to:

• ☐ All medical records (paper and electronic), in their original form including audit trails;
• ☐ All imaging studies and original films;
• ☐ All physical samples (tissue, slides, blood, fluid);
• ☐ All medical devices, implants, instruments, or equipment used in the Patient's care, in their original condition;
• ☐ All electronic communications including email, text, secure-message, and patient-portal communications;
• ☐ All metadata, timestamps, audit logs, and system records;
• ☐ All incident reports, occurrence reports, and quality-assurance documents;
• ☐ All peer-review records (despite any claim of privilege, the records must be preserved);
• ☐ All operative video, photographic, and observational records.

Failure to preserve such evidence may give rise to spoliation sanctions, adverse inferences, or independent claims under New Hampshire law. See Murray v. Developmental Services of Sullivan County, Inc., 149 N.H. 264 (2003); Rodriguez v. Webb, 141 N.H. 177 (1996).

13. SETTLEMENT DEMAND AND RESPONSE DEADLINE

The Patient is prepared to engage in good-faith settlement discussions. The Patient demands the sum of $[__________] in full settlement of all claims arising from the conduct described herein, payable within sixty (60) days of receipt of this Notice. Counter-proposals and alternative dispute resolution suggestions (including private mediation) will be considered in good faith.

Please cause your insurer or counsel to respond in writing within thirty (30) days of receipt of this Notice. If no response is received, or if the response indicates an intent to deny the claim, the Patient intends to commence formal litigation in [____________] County Superior Court without further notice.

14. RESERVATION OF RIGHTS

The Patient reserves all rights, including the right to:

• ☐ Add additional defendants identified during pre-suit investigation or formal discovery;
• ☐ Add or expand claims, including informed consent, vicarious liability, negligent credentialing, and institutional negligence;
• ☐ Add survival, wrongful death, and loss of consortium claims;
• ☐ Seek enhanced compensatory damages where the conduct is wanton, malicious, or oppressive (Vratsenes v. N.H. Auto, Inc., 112 N.H. 71 (1972));
• ☐ Pursue any other remedy or theory available under New Hampshire law.

This Notice is not, and shall not be construed as, a waiver, release, or accord and satisfaction of any claim.

15. STATUTE OF LIMITATIONS NOTICE

The Patient asserts that the statute of limitations under RSA 508:4 has not run. The Patient discovered, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the conduct described above on or about [__/__/____]. Accordingly, this matter remains within the three-year limitations period.

[If minor:] The Patient was [____] years of age on the date of the conduct alleged. Pursuant to RSA 508:8, the statute of limitations is tolled until the Patient attains the age of majority.

[If decedent:] The action is timely under RSA 556:11.

This Notice is not intended to and does not waive any limitations defense or extend any limitations period; it is provided in good faith to facilitate pre-suit resolution.

16. APOLOGY STATUTE ACKNOWLEDGMENT

The Patient acknowledges that benevolent gestures and statements of sympathy made by you or your institution are inadmissible as admissions of liability under RSA 507-E:4, II. The Patient does not seek to use such statements as admissions; however, statements of fault, negligence, or culpable conduct made in conjunction with a benevolent gesture remain admissible.

17. SIGNATURE AND SERVICE

Respectfully submitted,

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

Date: [__/__/____]

ENCLOSURES:

• Exhibit A — HIPAA-Compliant Authorization for Release of Protected Health Information
• Exhibit B — [Letter of representation, if separately enclosed]
• Exhibit C — [Records request form, if separately enclosed]

18. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Notice of Intent to Commence a Medical Injury Action, together with the enclosed Exhibits, was served upon each addressee identified in the caption above by:

☐ First-class United States mail, postage prepaid; and
☐ Certified United States mail, return receipt requested, Tracking No(s). [____________________].

_________________________________
[ATTORNEY NAME], NH Bar No. [__________]

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

A. Historical Background and Purpose

RSA Chapter 519-B was enacted in 2005 to establish mandatory pre-trial screening of medical injury claims. The legislature's stated purposes were to: (a) identify meritorious claims and encourage early resolution; (b) identify non-meritorious claims and encourage withdrawal or dismissal; and (c) contain the costs of the medical-injury reparations system.

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

The Screening Panel 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.

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

• ☐ Filing of the action and request for screening panel hearing;
• ☐ Selection and assignment of panel members;
• ☐ Pre-hearing exchange of submissions, expert affidavits, and exhibits (typically 30 days before hearing under former Superior Court Rule 309);
• ☐ Panel hearing (typically 1 day) with opening statements, expert testimony (live or by deposition / affidavit), and closing argument;
• ☐ Panel deliberations and issuance of written findings on:
  a. Whether the defendant's conduct deviated from the applicable standard of care;
  b. Whether such deviation proximately caused the claimed injury; and
  c. (In some panels) Whether contributory or comparative fault by the plaintiff applied.

D. 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 constituted admissible evidence;
• ☐ The statute of limitations was tolled during panel proceedings;
• ☐ Panel findings frequently shaped settlement posture even where the action proceeded to trial;
• ☐ The panel chair issued procedural rulings, and a panel record was preserved.

E. Transitional Considerations

Practitioners with cases involving pre-July 1, 2023 conduct should consult the text of 2023 N.H. Laws Chapter 132 (SB 65) for any savings or transitional language. Practitioners participating in voluntary mediation or contractual ADR modeled on the former panel structure may adapt the historical framework above. The current statutory framework imposes NO mandatory pre-suit screening panel proceeding.

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 507-E:4 — Evidence of Admissions / Apology
• RSA 508:4 — Personal Actions / 3-year SOL with Discovery Rule
• RSA 508:8 — Minor Tolling
• RSA 332-I:1 — Patient Access to Medical Records
• RSA 507:7-d — Modified Comparative Fault (51% threshold)
• RSA 507:7-e — Apportionment / Limited Joint and Several Liability
• RSA 524:1-a / 524:1-b — Pre- and Post-Judgment Interest
• RSA 556:9–:14 — Wrongful Death / Survival Actions
• N.H. R. Civ. P. 11 — Signing of Pleadings
• N.H. R. Evid. 702 — Expert Testimony (Daubert standard)
• Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 148 N.H. 609 (2002)
• Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991) — no damages cap
• Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) — medical injury cap unconstitutional
• Smith v. Cote, 128 N.H. 231 (1986) — standard of care; informed consent
• Goudreault v. Kleeman, 158 N.H. 236 (2009) — medical malpractice standard of care
• Rodriguez v. Webb, 141 N.H. 177 (1996) — spoliation
• Murray v. Developmental Services of Sullivan County, Inc., 149 N.H. 264 (2003) — spoliation duties
• Vratsenes v. N.H. Auto, Inc., 112 N.H. 71 (1972) — enhanced compensatory damages
• 2023 N.H. Laws Chapter 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 NOTICE OF INTENT TO COMMENCE A MEDICAL INJURY ACTION