Busby v. Seaborne Hospital

• Court: District Court, D. New Hampshire
• Decided: February 18, 1998
• Docket: CV-97-158-B
• Status: Published

Opinion

Busby v. Seaborne Hospital CV-97-158-B 02/18/98

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Martha Busbv, et a l .

v. C-97-158-B

Seaborne Hospital, Inc.

ORDER

Massachusetts recognizes a claim for loss of child consortium.

See Mass. Gen. Laws Ann. ch. 231, § 85X (West Supp. 1997). New

Hampshire does not. See Siciliano v. Capitol City Shows, Inc., 124

N.H. 719, 724 (1984). Plaintiffs are the Massachusetts parents of

a child who allegedly was injured while receiving treatment at a

New Hampshire hospital. They have brought a loss of child

consortium claim. The guestion presented by defendant's motion to

dismiss the consortium claim is whether it is governed by

Massachusetts or New Hampshire law. I conclude that the claim

cannot survive because it is controlled by New Hampshire law.

New Hampshire choice of law rules reguire a court to consider

five factors in analyzing most choice of law guestions. They are:

(1) predictability of results; (2) maintenance of orderliness and a

good relationship among the states in our federal system; (3)

simplification of the judicial task; (4) advancement by the court

of its own state's governmental interests rather than those of other states; and (5) the court's preference for what it regards as

the sounder rule of law. See Clark v. Clark, 107 N.H. 351, 353-55

(1966).

Two of these factors are irrelevant in this case. The

maintenance of a good relationship among the states would be

unaffected by the application of either New Hampshire or Massachu­

setts law as both states have a sufficient interest in the outcome

to satisfy this factor. Further, either state's law could be

applied with egual ease. Thus, the answer to the choice of law

guestion depends upon the remaining three factors.

Kathleen Busby allegedly was injured in New Hampshire as a

result of defendant's conduct in New Hampshire. Plaintiffs Martha

and William Busby brought their daughter to New Hampshire for

treatment. Under these circumstances, it would be reasonable for

the parties to expect that their relationship would be governed by

New Hampshire law where the treatment was to be provided. New

Hampshire has a legitimate interest in determining the circum­

stances under which medical service providers in the state can be

liable for negligent conduct. They have a similar interest in

determining whether such providers should be subject to liability

for loss of child consortium claims. Applying New Hampshire law

thus favors this state's legitimate interests. Finally, given the

- 2 - fact that the New Hampshire Supreme Court has recently declined to

recognize a tort of loss of child consortium, I can only presume

that the court would conclude that its position represents the

sounder rule of law.

A different result might well be warranted under a different

choice of law test. See, e.g., Robert A. Brazener, Conflict of

Laws as to Right of Action for Loss of Consortium, 46 A.L.R.Sd 880

(1973) (application of domicil state's law might be appropriate

under "most significant contact" choice of law test). Never­

theless, under the Clark criteria, there is little to be said for

the application of Massachusetts law. Accordingly, the motion to

dismiss is granted.

SO ORDERED.

Paul Barbadoro Chief Judge February 18, 1998

cc: Michael O'Shaughnessy, Esg. Bruce Felmly, Esg.

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