When reviewing a motion to dismiss on appeal, the Supreme Court of New Hampshire accepts as true the plaintiff's allegations of fact and asks whether they are reasonably susceptible of a construction that would permit recovery.
Plaintiff was treated by defendant physicians after suffering severe injuries in an automobile accident. She eventually sued them for medical malpractice on grounds that their negligence deprived her of a chance of a more complete recovery. Prior medical malpractice case law in New Hampshire had never squarely faced the issue of whether a plaintiff could recover for lost opportunity. The trial court dismissed her action for failure to state a claim.
Was the court's dismissal proper in a medical malpractice action that included damages for lost opportunity?
The court recognized loss of opportunity for a better outcome as a separate injury recoverable in tort, reversed the dismissal, and remanded for further proceedings. The court adopted the majority rule, treating lost opportunity as a separate injury, for which plaintiff could recover if she proved defendants' negligence caused that injury to her, and her resulting damages, that is, the extent to which future damages were increased, by the preponderance of the evidence. This type of injury fit perfectly well within the plain language of the definition of a medical injury at N.H. Rev. Stat. Ann. § 507-E:1(III) (1997), so there was no need to even examine the legislative history, although it, too, supported the adoption of this rule.