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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Belknap No. 2008-807 JOSEPH SMITH & a. v. HCA HEALTH SERVICES OF NEW HAMPSHIRE, INC. D/B/A PORTSMOUTH REGIONAL HOSPITAL Argued: April 16, 2009 Opinion Issued: July 31, 2009 Fitzgerald & Nichols, P.A., of Laconia (Paul T. Fitzgerald on the brief and orally), for the plaintiffs. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Todd Hathaway on the brief and orally), for the defendant. HICKS, J. The plaintiffs, Joseph Smith and Laurie A. Smith, appeal an order of the Superior Court (Smukler, J.) granting summary judgment to the defendant, HCA Health Services of New Hampshire, Inc. d/b/a Portsmouth Regional Hospital, on the plaintiffs' claims for false imprisonment, negligence and loss of consortium. We affirm. The following facts were either found by the trial court to be undisputed or are supported by the record. For many years, Ms. Smith took a regimen of

prescribed pain medication after sustaining injuries in a car accident. She also suffered from unrelated psychological disorders, including depression. In 2004, she began taking more than her prescribed dose of medication. When alerted to this, Ms. Smith's nurse practitioner, Lillian Mandl, suggested that she voluntarily admit herself to a detoxification facility. Mandl assumed that Ms. Smith would be able to leave the facility at any time. Ms. Smith agreed to seek treatment and admitted herself to defendant Portsmouth Regional Hospital on August 19, 2004. Once admitted, Ms. Smith was placed in a "lockdown" facility. Hospital staff prevented Mr. Smith from visiting her, though she signed a form indicating she did not want to restrict visitors. The hospital also refused to release her when she requested. Mr. Smith and Mandl complained to the hospital, and the hospital released Ms. Smith on August 21, 2004. The plaintiffs filed suit on February 24, 2007, alleging that the hospital's actions constituted false imprisonment, that the hospital acted negligently, that these actions caused Ms. Smith to suffer emotional distress, resulting in Mr. Smith's loss of consortium claim. The plaintiffs disclosed Mandl as an expert witness on April 18, 2008. In their disclosure, they stated that she would testify as to the above-stated facts, particularly that neither she nor Ms. Smith expected or wanted the defendant to place Ms. Smith in a "lockdown" facility. The disclosure included Mandl's resume, which listed her certifications as a nurse and her employment history. The defendant deposed Mandl on June 17, 2008. During the deposition, Mandl admitted that she did not consider herself to be an expert on the standard of care for an in-patient detoxification program. She also acknowledged that she could not give expert testimony regarding whether the defendant's actions exacerbated Ms. Smith's psychological symptoms. However, she said she had often referred patients to detoxification facilities, and could judge whether her patients' psychological symptoms intensified. The defendant moved for summary judgment. In their objection to the motion, the plaintiffs attached an affidavit in which Mandl sought to "clarify" her deposition testimony. She stated that she is "well qualified to offer opinions about the standards of care . . . for . . . issues . . . such as detoxification"; that in her "expert opinion," Ms. "Smith should not have been held in a `locked down' unit"; and that "[a]ny factual observations or conclusions that I drew about the effect of the admission to the defendant's facility were made by exercising my specialized knowledge in . . . pain management." The trial court granted the defendant's motion for summary judgment. The court found that the plaintiffs' claims for negligence and loss of consortium

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required expert testimony under RSA chapter 507-E, and that even if RSA chapter 507-E did not govern the plaintiffs' claim for false imprisonment, that claim required expert testimony because the standard for discharging patients is beyond the ken of the average layperson. See Lemay v. Burnett, 139 N.H. 633, 635 (1995). The court further found that Mandl was not qualified to give such testimony. On appeal, the plaintiffs contest the conclusion that their claims require expert testimony. They argue that the Patients' Bill of Rights, RSA 151:21 (2005), is sufficient evidence of the applicable standard of care to withstand summary judgment. They also contend that Mandl is qualified to give any necessary expert testimony. We review the trial court's grant of summary judgment by considering the affidavits and other evidence in the light most favorable to the non-moving party. Dent v. Exeter Hosp., 155 N.H. 787, 791 (2007). If this review does not reveal any genuine issues of material fact, i.e., facts that would affect the outcome of the litigation, and if the moving party is entitled to judgment as a matter of law, we will affirm. Id. at 792. We review the trial court's application of law to fact de novo. Id. The plaintiffs' claims arise out of events that occurred during Ms. Smith's treatment in the defendant's detoxification facility. If these claims constitute "actions for medical injury" under RSA 507-E:1 (1997), then RSA 507-E:2 (Supp. 2008) compels the plaintiffs to prove their claims by using expert testimony. Under RSA 507-E:1, I, "any action against a medical care provider, whether based in tort, contract or otherwise, to recover damages on account of medical injury" is an "[a]ction for medical injury." (Quotation omitted.) "Medical injury" is defined as "any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider." RSA 507-E:1, III (quotation omitted). In actions for medical injury, experts must testify: (1) as to the standard of reasonable professional practice; (2) that the medical care provider failed to act in accordance with this standard; and (3) as a proximate result thereof, the plaintiffs suffered injuries which would not otherwise have occurred. RSA 507E:2, I. Therefore, the plaintiffs would be unable to meet this statutory burden of proof, and the trial court's grant of summary judgment would be proper, if the plaintiffs' claims are actions for medical injury and if the plaintiffs failed to proffer a suitable expert witness. When interpreting statutes, we are the final arbiters of legislative intent. In the Matter of Giacomini & Giacomini, 151 N.H. 775, 776 (2005). We give the words used in statutes their plain and ordinary meanings, and when the language is clear, we need not go beyond it for further indication of legislative intent. Id. at 776-77.

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In the instant case, the plaintiffs' individual causes of action

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