16May2012… 2138h

17May2012… 2323h





AN ACT relative to evidence of admissions in medical injury actions and relative to offers of judgments.

SPONSORS: Sen. Bradley, Dist 3

COMMITTEE: Health and Human Services


This bill makes certain statements by medical care providers to an alleged victim and the alleged victim’s relatives and representatives inadmissible as evidence in any medical injury action.

The bill also establishes procedures for offers of judgments in civil cases based on Rule 68 of the Federal Rules of Civil Procedure.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

16May2012… 2138h

17May2012… 2323h




In the Year of Our Lord Two Thousand Eleven

AN ACT relative to evidence of admissions in medical injury actions and relative to offers of judgments.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Medical Injury Actions; Evidence of Admissions. RSA 507-E:4 is repealed and reenacted to read as follows:

507-E:4 Evidence of Admissions.

I. In this section:

(a) “Relative” means a victim’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-brother, half-sister, or spouse’s parents. The term includes said relationships that are created as a result of adoption. In addition, “relative” includes any person who has a family-type relationship with a victim.

(b) “Representative” means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient’s agent.

(c) “Unanticipated outcome” means the outcome of a medical treatment or procedure that differs from an expected result.

II. In any medical injury action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such medical injury action, any and all statements, affirmations, gestures, or conduct expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a medical care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim and which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission liability or as evidence of an admission against interest; provided, however, that such communication complies with state and federal law governing the privacy of patient information.

III. This section does not apply to a statement of fault, negligence, or culpable conduct that is part of or made in addition to a statement, writing, or action described in paragraph II.

IV. Information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any matter solely because they were described or discussed by a medical care provider in accordance with paragraph II.

2 New Subdivision; Offers of Judgments in Civil Cases. Amend RSA 507 by inserting after section 17 the following new subdivision:

Offers of Judgments in Civil Cases

507:18 Offers of Judgment in Civil Cases.

I. More than 10 days before the trial begins, either party to a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk shall then enter judgment.

II. An unaccepted offer shall be considered withdrawn, but does not preclude a later offer. Evidence of an unaccepted offer shall not be admissible except after judgment in a proceeding to determine costs.

III. When one party’s liability to another has been determined, but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. This offer shall be served within a reasonable time, but at least 10 days, before a hearing to determine the extent of liability.

IV. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer and the court finds that the offeree was unreasonable in rejecting the offer, the offeree shall pay the costs incurred, including reasonable attorney’s fees, after the offer was made.

3 Effective Date. This act shall take effect January 1, 2013.