## Facts

- Belinda Joyce Lord suffered a broken neck in a July 22, 1996 automobile accident and was treated at Lakes Region General Hospital by Dr. James Lovett and Dr. Samuel Aldridge.
- Lord alleged the doctors negligently misdiagnosed her spinal cord injury and, as a result, failed to properly immobilize her and failed to administer steroid therapy.
- She claimed the negligence aggravated her preexisting injury by causing her to lose the opportunity for a substantially better recovery, leaving significant residual paralysis, weakness, and sensitivity.
- Before trial, the court allowed a pretrial offer of proof on causation and damages.
- Lord proffered expert testimony that negligence deprived her of a substantially better recovery, but conceded the expert could not quantify the degree of the lost chance in numerical terms.
- The trial court dismissed the case, concluding it was predicated on a “loss of opportunity” theory not recognized in New Hampshire and that causation proof was insufficient.

## Issues

1. Whether New Hampshire recognizes a medical malpractice claim for “loss of opportunity” where negligent treatment aggravates a preexisting injury by reducing the likelihood of a better outcome.
2. Whether an offer of proof alleging a substantial lost opportunity, without numerical quantification, is sufficient to survive dismissal at the close of the plaintiff’s case.

## Decision

- The Supreme Court of New Hampshire reversed the dismissal and remanded.
- The court recognized “loss of opportunity” as a viable medical malpractice theory for a plaintiff whose preexisting injury or illness is aggravated by negligent care.
- The court adopted a limited recovery model permitting damages for the lost opportunity itself, not for the entire preexisting condition.
- Applying the dismissal standard, the court held Lord’s allegations were reasonably susceptible to a construction that would permit recovery; precise percentage quantification was not required at that stage.

## Legal Principles

- A cognizable injury in medical malpractice may include the loss of an opportunity for a better outcome when negligent care aggravates a preexisting injury or illness.
- Under New Hampshire’s approach, the plaintiff must prove the defendant’s negligence more likely than not caused a substantial lost chance of a better recovery.
- Damages are limited to the value of the lost chance, not the full measure of the ultimate disability attributable to the underlying injury.
- On review of dismissal, courts accept the plaintiff’s factual allegations as true and ask whether they are reasonably susceptible of a construction permitting recovery; exact numerical proof of the lost chance is not invariably required at that stage.

## Conclusion

New Hampshire recognized medical malpractice recovery for loss of opportunity and limited damages to the lost chance of a better outcome; because Lord’s proffer supported a substantial, causally related lost opportunity, dismissal was reversed and the case remanded.


Lord v. Lovett, 146 N.H. 232, 770 A.2d 1103 (N.H. 2001)