Articles Posted in New Hampshire Supreme Court

by
Petitioner Dao Nguyen appealed a New Hampshire Board of Barbering, Cosmetology, and Esthetics (Board) decision, suspending her personal license as a manicurist and revoking the shop license for Nail Care. In 2013, Board inspector Beulah Green conducted a routine inspection of Nail Care, finding numerous violations of the Board Administrative Rules (Rules), including two foot spas that were not disinfected properly, no record of cleaning for two foot spas, five tables that were not sanitized, numerous implements that were either not sanitized and disinfected properly or not discarded or disposed of properly, multiple “credo” blades, and the use of nail drills that are not manufactured for use on the natural nail (improper nail drills). For these violations, Green imposed a fine of $4,158. In the next few years, Green conducted additional inspections, and again found multiple, repeat violations of the Rules. Noting the repeated violations and the “blatant disregard” that the petitioner demonstrated towards the Rules, the Board suspended petitioner’s personal license for five years, revoked her shop license for Nail Care, and ordered her to pay all outstanding fines owed to the Board within 90 days. The Board also ruled that, if the petitioner’s license is reinstated, it will be subject to a three-year probationary period. Finding the Board’s decision was supported by substantial, credible evidence, the New Hampshire Supreme Court affirmed the Board’s decision. View "Appeal of Dao Nguyen" on Justia Law

by
The State of New Hampshire moved to enforce administrative subpoenas served on defendants Actavis Pharma, Inc., Endo Pharmaceuticals, Inc., Janssen Pharmaceuticals, Inc., Purdue Pharma L.P., and Teva Pharmaceuticals USA, Inc. The State was investigating defendants’ role in allegedly causing health care providers to prescribe opioids to treat chronic pain. Defendants resisted, arguing the Office of the Attorney General’s (OAG) engagement of outside counsel was unlawful. In addition, defendants moved for a protective order, seeking to “bar the Attorney General from engaging contingent fee counsel to: (a) participate in or assume responsibility for any aspect of the State’s investigation of alleged violations of the Consumer Protection Act . . . ; or (b) participate in or assume responsibility for any subsequent enforcement action pertaining to alleged CPA violations.” Defendants argued that the OAG’s fee agreements with the firm Cohen Milstein: (1) violated RSA 21-G:22 and :23 (2012) (amended 2016); (2) violated New Hampshire common law; (3) were ultra vires because the OAG did not comply with RSA 7:12 (2013) (amended 2016) or :6-f (Supp. 2016); (4) violated the doctrine of separation of powers; (5) violated the New Hampshire Rules of Professional Conduct; and (6) violated due process under the New Hampshire and United States Constitutions. The State replied that an objection to the Attorney General’s use of outside counsel was not appropriate justification for refusing to comply with lawful subpoenas, and that defendants lacked standing to raise that complaint. The trial court denied the State’s motion to enforce the subpoenas and granted the defendants’ motion for a protective order “to the extent that the OAG and Cohen Milstein’s contingency fee agreement is invalid.” The trial court determined that the defendants had demonstrated standing to bring their claims, that the fee agreement was void, and therefore denied the State’s motion to enforce the subpoenas on that basis. The New Hampshire Supreme Court concluded defendants lacked standing to challenge the outside counsel agreement. It reversed and remanded the matter for further proceedings. View "New Hampshire v. Actavis Pharma, Inc." on Justia Law

by
In this declaratory judgment proceeding, petitioner Exeter Hospital, Inc. (Exeter) appealed a superior court order denying its motion for partial summary judgment as to the amount at which coverage was triggered under an umbrella policy (the policy) issued to Exeter by respondent Steadfast Insurance Company (Steadfast). In the spring of 2012, an outbreak of Hepatitis C infections among patients serviced by Exeter’s cardiac catheterization lab led investigators to discover that a technician had spread the virus to patients “through a clandestine drug diversion scheme.” The technician allegedly injected certain drugs into his body by way of intravenous needles, then reused the needles on patients, thereby infecting them with the virus. Numerous lawsuits were lodged against Exeter by affected patients. Exeter was primarily insured through a Self-Insurance Trust Agreement (SIT), which provided professional liability coverage in the amount of $1 million per medical incident, with a $4 million annual aggregate cap. Exeter also maintained the policy with Steadfast, which provided excess health care professional liability coverage. Steadfast maintained that it would pay damages only in excess of the $100,000 retained limit for each medical incident. Exeter filed this proceeding, seeking a declaration that it was not required to pay $100,000 retained limit per claim. The trial court interpreted the term “applicable underlying limit” as being a variable amount “dependent on the actual coverage remaining under [the] other [limits of] insurance,” here, the limits of the SIT. Because Exeter had paid out the limits of the SIT, the court found that the “applicable underlying limit” was zero, thereby rendering the $100,000 retained limit greater than the “applicable underlying limit.” Thus, the court determined that, pursuant to “Coverage A,” Steadfast was required “to pay damages in excess of $100,000 for each medical incident.” Exeter sought reconsideration of the court’s order, which the court denied. Although the New Hampshire Supreme Court did not agree with every underlying argument pressed by Exeter, it concluded that its overall argument regarding the interpretation of Coverage A was reasonable, and the trial court therefore erred in granting partial summary judgment as to the terms of Coverage A. View "Exeter Hospital, Inc. v. Steadfast Insurance Company" on Justia Law

by
Respondents Northridge Environmental, LLC and Arch Insurance Company (carrier), appealed a decision of the New Hampshire Compensation Appeals Board (CAB) granting a request by petitioner John Nicholson for reimbursement for home health care services provided to him by his wife, Angela Nicholson. Petitioner was seriously injured on the job while working for Northridge. After a period of hospitalization, petitioner was discharged but prescribed medication and follow-up care, which included home health services. Following the petitioner’s release from the hospital, he had multiple open wounds that required daily cleaning, and he “needed 24/7 care, due to balance problems, short term memory loss, and inability to perform certain regular activities of daily living.” Although petitioner’s wife did not have any formal medical training, she provided the required care, including cleaning his wounds, bathing him, dressing him, aiding him in the use of the bathroom, helping him move around, and constantly supervising him. Petitioner sought reimbursement at a rate of $15 per hour, 16 hours per day, between the date of his release from the hospital, and June 4, 2012, the date of the Department of Labor (DOL) hearing. The DOL denied the request for reimbursement. On remand to the CAB, respondents argued that because petitioner’s wife did not fall within the definition of a “health care provider” as used in RSA 281-A:2, XII-b (2010), her services were not reimbursable. Petitioner conceded that his wife was not a “doctor, chiropractor, or rehabilitation provider” as listed in RSA 281-A:2, XII-b, but he still asserted that her services were, nonetheless, reimbursable. The CAB first concluded that petitioner was entitled to reimbursement for his wife’s services. Regarding the amount of reimbursement, the CAB observed that petitioner’s wife offered inexact dates, times, and durations of various treatments that she provided and also lacked written records of her care. Nonetheless, the CAB concluded that it was reasonable to reimburse the petitioner for 12 hours per day at $15 per hour for the period between August 25, 2010, and June 4, 2012. The parties filed motions for reconsideration, which were denied. Finding no reversible error in the CAB's decision, the Supreme Court affirmed. View "Appeal of Northridge Environmental, LLC" on Justia Law

by
THI is a subsidiary of THI of New Hampshire, LLC, itself a subsidiary of a parent company that owns nursing home operators throughout the country. In approximately 2003, THI purchased and began operating a nursing home, Pleasant Valley Nursing Center (Pleasant Valley), in Derry. In 2012, THI had an opportunity to expand when Exeter Healthcare, Inc. closed its nursing home in Exeter and offered to sell its 109 licensed nursing beds. THI and Exeter Healthcare entered into a purchase and sale agreement for the beds in 2013, and THI made deposit payments to Exeter Healthcare in accordance with the agreement. The following month, THI requested that the Board grant approval for the transfer of the beds from Exeter Healthcare to THI. Because the Pleasant Valley building would not accommodate all of the beds to be transferred, THI also requested permission to apply for a Certificate of Need (CON) to construct a new building to house the beds in a different location. THI selected a site in Londonderry for the new building, which it planned to operate under the name Traditions at Londonderry. In its application, THI explained that the transfer would occur in the same nursing home region in Rockingham County, such that the number of beds in the region would not increase. THI also informed the Board that its contract conditioned its obligation to buy the beds from Exeter Healthcare upon the Board’s approval of the CON for Traditions at Londonderry. In this appeal of the Health Services Planning and Review Board's (Board) order, THI argued that the Board incorrectly interpreted RSA 151-C:4, III(a) as preventing the Board from granting a certificate of need (CON) to THI for the construction of the Pleasant Valley nursing home. Although the Board found that THI’s proposed facility would satisfy regulatory requirements for services offered, quality of care, and financial feasibility, among other criteria, the Board nevertheless denied THI’s application because the Pleasant Valley facility was not an “existing facility.” Finding no error, the Supreme Court affirmed the Board's decision. View "Appeal of THI of New Hampshire at Derry, LLC " on Justia Law

by
At issue before the Supreme Court was an Asset Purchase Agreement. Portsmouth Regional Hospital was sold to the Hospital Corporation of America. A dispute arose over the meaning of certain terms and clauses in the purchase agreement. The Foundation for Seacoast Health sought to "repurchase" the hospital's tangible assets under certain conditions. The dispute arose when the Foundation sought to assert that right. The Foundation appealed the trial court’s determination that the clause under dispute in this case was intended to give the Foundation a right to purchase the Hospital only in the event of a sale to a third party. The Foundation argued that because of this error, the trial court also erred by failing to: (1) order specific performance of the Foundation’s contractual right to purchase the Hospital; (2) award monetary damages for the defendants’ material breach; and (3) award attorney’s fees for the remedy proceeding. Upon review of the contract in question, the Supreme Court affirmed all but the trial court’s attorney’s fee award. View "Foundation for Seacoast Health v. Hospital Corporation of America" on Justia Law