The Collateral Source Rule in New Hampshire: It's an Evidence Rule, Not a Policy Choice
- Keith Diaz
- Aug 18
- 26 min read
Someone hurt you, and you bring a personal injury claim against them. Your surgery was billed at $180,000. Your health plan paid $41,000 and the hospital wrote off the rest. Which number does the jury see?
In most New Hampshire courtrooms the jury sees $180,000, and the defense is free to argue the care was not worth it. In a minority of Superior Court cases the jury sees $41,000 and never learns the rest existed. New Hampshire's trial courts are split, the New Hampshire Supreme Court has not resolved it, and which rule applies can turn on which judge hears the motion.
The difference is not academic. Cap the claim at $41,000, subtract what your health plan can take back out of your recovery, and you can end up with nothing for your medical care while the $139,000 the hospital wrote off reduces what the insurer for the person who hurt you has to pay.
The question is the same whether the injury came from a car crash, a fall on someone's property, a medical malpractice claim, or a work accident with a third party at fault. It is not a dispute with your health insurer, and it does not touch the pain and suffering part of a claim, which is measured separately.
What the law asks a jury to decide
Before we dive into the dispute over what number a jury should see, let's first take a look at what the law actually asks a jury to decide.
A person claiming damages in New Hampshire has to prove, for each item of loss, that the loss happened and that the defendant's fault caused it. The jury then decides how much money compensates it, and the person claiming damages must show the extent and the amount. The standard throughout is not certainty but "more probable than not." New Hampshire Civil Jury Instructions (NHCJI) § 9.2.
For medical care, the thing to be proved is not the amount of the bill, and not the amount somebody paid. It is the reasonable value of the care that was reasonably required and actually given. NHCJI § 9.6.
Reasonable value is a fact. Like any other disputed fact, it is proved with evidence and found by the trier of fact, usually a jury. Notice what the standard does not mention: who paid.
The disagreement over "reasonable value" of medical care has evolved into a dispute about damages policy not evidence. The argument runs like this: hospital list prices are not set by the market and paid by almost nobody. The injured person was never legally responsible for the written-off balance. Letting the plaintiff recover hospital list price hands them money they never owed and never lost, which looks like a windfall rather than compensation. On that view, the collateral source rule is a leftover from an era before near-universal insurance, and damages should track what the injury actually cost someone.
That is a serious argument, and this article does not pretend otherwise. But it is a policy argument, and it is being pressed against a question New Hampshire has historically treated as evidentiary. A policy choice that displaces an evidentiary question does more than answer it differently. It moves the answer out of the view of the jury.
The question a billed-versus-paid motion actually asks
Before trial, insurance defense counsel files a motion in limine, which is a request to settle what evidence the jury may hear before the trial starts. It asks the court to rule that the jury may not hear the billed amount, and that the plaintiff's recovery for medical expenses is capped at what a third party actually paid.
Notice what that motion is asking a trial judge to do. Not to weigh the evidence. Not to instruct the jury on how to weigh it. To decide, in advance and as a matter of law, that an authentic bill from a licensed provider is not probative of what the care was worth. The motion seeks an evidentiary ruling. Whether it can be justified on evidentiary grounds is the whole case. However, notice the consequence. What the proponents of this motion are asking for is a policy decision that removes a question from the jury. Reasonable value is a disputed fact. The motion asks a judge to settle it in advance, without hearing any evidence about it, and in the broadest versions to settle it for every case.
Position one: the measure is reasonable value, and reasonable value is proved by evidence
This is the majority rule in New Hampshire.
Start with what a New Hampshire jury is actually told. The model instruction on the elements of personal injury damages lists first among the things a jury may consider:
"The reasonable value of medical (hospital, nursing) care, services, and supplies reasonably required and actually given in the treatment of plaintiff (and the reasonable value of similar items that will probably be required and given in the future)."
NHCJI § 9.6. The Committee lists Johnston v. Lynch, 133 N.H. 79, 574 A.2d 934 (1990), among its sources for that instruction, reporting that the trial court there properly instructed the jury that in determining damages it could consider the reasonable value of past and future medical care.
That is the standard from the top of this article, in the words a jury actually hears. The measure is reasonable value: not the amount paid, and not the amount owed.
The billed amount is evidence of that value. It is not conclusive, and the defense is free to attack it. But it comes in.
New Hampshire even supplies a procedural route for getting it in. Superior Court Rule 37(a) provides that "[i]f, after an action has been entered for 3 months, a party submits copies of bills incurred to opposing counsel, and no objection has been made within 30 days, the bills may be introduced without formal proof." That is a foundation rule and nothing more. It answers authenticity and formal proof. Its only condition touching the plaintiff's obligation is the word "incurred." It says nothing about who paid the bills, nothing about written-off balances, and nothing about the measure of damages.
Why, then, does a payment by somebody else not reduce the figure a jury views? Because New Hampshire addressed that question a long time ago, and in the personal injury cases it answered it against the tortfeasor, meaning the person or company whose fault caused the injury.
New Hampshire's Supreme Court stated the underlying principle in Moulton v. Groveton Papers Co., 114 N.H. 505, 509 (1974):
"Under the collateral source rule if a plaintiff is compensated in whole or in part for his damages by some source independent of the tort-feasor he is still permitted to make full recovery against him."
Moulton then listed what counts as an independent source: insurance policies, relief associations, employment benefits, gratuitous payments, social legislation benefits including social security and welfare, and retirement benefits. Id. Twelve years earlier, Bell v. Primeau, 104 N.H. 227, 228 (1962), had described the same rule and collected New Hampshire's applications of it, workers' compensation among them. Id. at 228.
Workers' compensation is not a stray item on that list. It has a separate line of New Hampshire Supreme Court authority. Abbott v. Hayes, 92 N.H. 126, 133 (1942), held that a plaintiff's rights under the Workmen's Compensation Act, as the statute was then titled, and at common law against a third party "are so separate and distinct that payment and satisfaction of the former cannot have the effect of reducing the amount of the recovery against the latter." Anderson v. De Laurier, 106 N.H. 57, 59 (1964), called the point settled.
The reason is stated most plainly in Clough v. Schwartz, 94 N.H. 138 (1946). A firefighter's bills were paid by a firemen's relief association. The defendants argued he could not recover because he had neither paid the bills nor become legally liable for them. The Court answered:
"On principle it should make no difference to the defendants whether the payment was made by virtue of friendship, philanthropy or contract with a third party. The medical service given to the plaintiff was for his benefit and not for the benefit of the wrongdoer who has been adjudged liable. It is no concern of the wrongdoer whether the bills for medical services and expenses were paid by an indulgent uncle, a liberal employer or a relief association."
Clough, 94 N.H. at 141.
Position two: the measure is the amount actually paid
A minority of New Hampshire Superior Court orders take the opposite view.
Start with what reasonable value means everywhere else in New Hampshire law. It means exchange value: "[F]air market value is what a willing buyer would pay to a willing seller." Violette v. Kustan, No. 212-2022-CV-00007 (Carroll Cty. Super. Ct. Dec. 8, 2025) slip op. at 3 (quoting In re Cotrell, 163 N.H. 747, 750 (2012). Violette applies that definition to a hospital bill and concludes that "the only figure that can plausibly be said to meet that definition is the amount that is actually paid and accepted by the provider in full satisfaction for the services, not the face amount of the bill." Violette, slip op. at 3.
Underneath is a factual claim about how hospitals set prices. The list prices a hospital's billing department puts on a bill, which the Violette court calls "chargemaster" rates, are set for negotiating with insurers rather than for anyone to actually pay. So as a price, meaning a figure a willing buyer and a willing seller agree on, "chargemaster prices are completely fictitious," and "[n]o one knowingly and freely agrees to pay chargemaster prices." Id. (quoting a 2021 law review study of hospital list pricing).
Then the damages principle, which is the part that does the work. Compensatory damages exist "to make the plaintiff whole again." Id. (quoting Alonzi v. Northeast Generation Services Co., 156 N.H. 656, 666 (2008)). An injured person is made whole by what she paid plus what was paid on her behalf. The majority rule, on this view, "allows recovery of amounts which no one has ever been, or will ever be, obligated to pay on the plaintiff's behalf," so "[t]o award the plaintiff more than this would be to overcompensate them for their actual loss." Violette, slip op. at 3.
And there is a version that never reaches the measure of damages at all. If the written-off balance was, as Sica put it, an amount "not paid by a third party" and one the plaintiff "incurred no expense or obligation to pay," then no third party conferred anything and there is no collateral benefit for the rule to operate on. Sica, 2007 N.H. Super. LEXIS 75, at *4. On that reading the rule is not displaced or outweighed. It was never engaged.
Violette v. Kustan, No. 212-2022-CV-00007 (Carroll Cty. Super. Ct. Dec. 8, 2025), the most thorough of these orders and the most recent I have located, collects five earlier ones in the same camp, among them Sica v. Britton, No. 05-C-213, 2007 N.H. Super. LEXIS 75 (Strafford Cty. Feb. 1, 2007); Smith v. Buckley, No. 07-C-0203, 2009 N.H. Super. LEXIS 124 (Hillsborough Cty., Southern Dist., Aug. 21, 2009); and Clericuzio v. White, No. 218-2019-CV-839 (Rockingham Cty. Feb. 11, 2022). Add Gray v. Hannaford, No. 213-2017-CV-00204 (Cheshire Cty. Super. Ct. Mar. 28, 2019), and Violette itself.
Why the majority view is the correct one
The rule has two halves, and only one of them gets argued. Each half must be understood in relation to the other. One half cannot be applied to violate the other.
Almost the whole billed-versus-paid fight is about the second half: how much the plaintiff may collect, and whether a hospital's charge is a fair measure of it. But it is only half.
The first half operates before anyone reaches the measure of damages. The jury is not told where the money came from. It is the older half of the rule, it is written into New Hampshire's model jury instructions, and it is the reason the minority view's paid-amount cap cannot be adopted without breaking something else.
Both halves are ordinary evidence propositions.
First: the jury does not learn where the money came from
This is the protective half, and it does its work before anyone computes a number.
In Clough, the defendants offered to prove that the relief association had paid the bills. The trial court excluded the offer and the Supreme Court affirmed. In Anderson v. De Laurier, 106 N.H. 57, 59 (1964), the concern was that questioning had signaled to the jury that workers' compensation was involved, with no certainty the jury had not quietly reduced its verdict as a result. The Court found no reversible error on those facts, because the offending question was "indefinite and not tied to the plaintiff," and it entered judgment on the verdict. But it stated the principle without qualification:
"It is settled law in this jurisdiction that a tort defendant can derive no benefit from the fact that plaintiff was insured or that his bills have been paid by a workmen's compensation insurer or from other sources."
And Merchants Mut. Ins. Group v. Orthopedic Professional Ass'n, 124 N.H. 648, 656 (1984), a declaratory judgment action on uninsured motorist coverage rather than a jury trial, found "a compelling analogy between the collateral source rule and the situation at bar, where an insured is seeking compensation under contract from his own uninsured motorist carrier."
The case law is the source of this protection, and the model instructions reflect it. The Committee is careful on the point: the insurance and collateral source paragraphs "do not alter the rules or case law regarding admissible evidence or permissible argument at trial." NHCJI § 9.5, Committee Comments. They are not the rule. They are what the rule sounds like when a judge says it out loud to a jury. The model cautionary instruction on damages states that the rules of evidence prohibit either party from introducing the existence or nonexistence of insurance coverage, "includ[ing] motor vehicle insurance, liability insurance, worker's compensation benefits, and health insurance," and then instructs the jury directly:
"Likewise, you may not consider or speculate on whether the plaintiff has received benefits from other sources in connection with his/her injuries. This includes worker's compensation benefits, health insurance coverage, and any other insurance benefits. The law does not permit you to make any deduction from the plaintiff's damages to reflect benefits which may have been received from other sources. This is so because the plaintiff may be required to repay such other sources from any award made in the case."
NHCJI § 9.5. The annotation to that instruction reports that the New Hampshire Supreme Court affirmed an instruction in similar terms in O'Donnell v. HCA Health Services of New Hampshire, 152 N.H. 608, 883 A.2d 319 (2005), stating that it accurately explained what the jury could and could not consider in determining damages. The instruction affirmed in O'Donnell addressed insurance benefits; the workers' compensation language appears in the current model instruction.
Read the last sentence of that instruction again, because it answers the windfall as to what was paid. The reason the jury may not deduct is that the plaintiff may have to repay. New Hampshire does not pretend the plaintiff pockets the money an insurer laid out. It tells jurors the opposite, and tells them not to guess about it.
The federal District of New Hampshire has applied the same protection. In Aumand v. Dartmouth-Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 90-92 (D.N.H. 2009), the court excluded proof of what the insurers paid under Rule 403, finding that the risk the jury would improperly reduce its award substantially outweighed the probative value. And in Lamontagne v. Hande, No. 23-cv-395-JL-TSM, 2026 DNH 075 (D.N.H. June 15, 2026), the court granted the plaintiffs' motion to exclude all evidence of and reference to Medicaid and Medicare benefits at trial.
Here is the point that seems to get overlooked by the minority view: the paid amount does not conceal the source. As an evidentiary matter, it reveals it. A figure that is a fraction of the bill is a Medicaid rate, a Medicare rate, or a negotiated commercial rate, and jurors know it. Putting the paid amount in front of the jury does the exact thing the rule exists to prevent, which is why Aumand called offering it as proof of market value "an end-run around the collateral source rule." Aumand, 611 F. Supp. 2d at 91.
Second: both sides may put on evidence about whether the charge was reasonable
Nothing in the collateral source rule requires a jury to accept the face value of a medical bill. The plaintiff has to prove reasonable value, and the defendant is entitled to contest it. What the defendant may not do is contest it by telling the jury that an insurer paid the bill and what amount.
Doreen W. v. MWV Healthcare Assocs., Inc., 937 F. Supp. 2d 194 (D.N.H. 2013), draws the line exactly:
"[N]othing prevents a defendant from 'questioning the face amount of medical bills as equivalent to the reasonable value of [the plaintiff's] medical expenses,' . . . so long as the defendant does not use the amounts actually paid, by the plaintiff's insurers, to settle those bills to do so."
Doreen W., 937 F. Supp. 2d at 197 (quoting Aumand, 611 F. Supp. 2d at 92 n.12).
Lamontagne states the plaintiff's side of it with the same discipline:
"To be clear, the ruling here is not that medical bills establish the reasonable value of medical services as a matter of law, as the Supreme Court of New Hampshire has never so held. Rather, it is that such bills are evidence of reasonable value, and are thus admissible."
Lamontagne, 2026 DNH 075, at 4-5.
New Hampshire's Superior Court has said the same in Keller v. Dartmouth Hitchcock Med. Ctr., No. 217-2015-CV-00555, 2019 N.H. Super. LEXIS 3, at *11 (Merrimack Cty. May 16, 2019): "The issue for the jury is not who paid the medical bills, but the reasonable value of the medical services." And Veilleux v. Noonan, Nos. 06-C-207, 06-C-051, 2008 N.H. Super. LEXIS 180, at *2 (Grafton Cty. Apr. 7, 2008), refused to read the question as susceptible to any general rule at all:
"The law in New Hampshire concerning medical special damages and the collateral source rule does not permit the generalized conclusion proposed by the defendants, but instead requires a case-specific determination of the reasonable value of medical expenses required and given as a result of a plaintiff's injury."
Veilleux matters for a second reason. It was written by the same judge who had written Sica fourteen months earlier, and it does not merely decline to read the earlier orders broadly. It withdraws them: "To the extent this court's statements in Sica and Cook/Demeule can be read to express or imply a broader generalization, it was error to do so." Veilleux, 2008 N.H. Super. LEXIS 180, at *1 n.2. Sica is still cited as a minority order. Its author disowned the generalization it is cited for.
The answer is that the dispute over the evidentiary value of medical bills is resolved on the weight of the evidence submitted to a jury, and the defense already has every tool for making it. Cross-examine the billing witness. Put on a qualified opinion that the charge exceeds reasonable value. Show what the same procedure costs elsewhere. Argue the number down in closing. A bill from a licensed provider for services actually rendered has probative value on what the services were worth; a court that says otherwise is not weighing prejudice against probative value, it is deciding the disputed fact and calling the decision an evidentiary ruling.
Put the two together
Prong one protects the plaintiff from a jury that silently discounts an award because someone else paid. Prong two protects the defendant from being charged more than the care was worth.
The defense concern is real. Hospital list prices can bear little relation to value. But that concern is already fully answered by prong two. Cross-examine the provider. Retain an expert. Argue the number to the jury. The defendant gets everything it is entitled to without excluding a single document. This is the case for the majority rule, and it is made out of evidence law.
One hard case deserves to be stated. Take the written-off balance from the top of this article: the $139,000 between the $180,000 charge and the $41,000 payment. No insurer paid it. No insurer will ask for it back. The injured person was never legally exposed to a dollar of it. Neither the subrogation reasoning in Moulton nor the repayment rationale in the model instruction answers that, because both are about money that goes back to somebody, and nobody is subrogated to a write-off. On the defense's best version of the argument, awarding the written-off balance is not compensation for a loss. It is a transfer.
New Hampshire has answered it, and so has the federal court applying New Hampshire law.
Return to Clough. The defendants there made this argument in its purest form, that the firefighter could not recover because he had neither paid the bills nor become legally liable for them, and the Court rejected it. Nothing in the answer turned on whether anyone could claim the money back. The Court's list is mostly a list of payers who cannot: friendship, philanthropy, an indulgent uncle. What mattered was that the medical service "was for his benefit and not for the benefit of the wrongdoer." Clough, 94 N.H. at 141.
Lefebvre is the second answer. The services there had been furnished to the plaintiff's wife without charge by a government hospital. He had incurred nothing, and on the contract claim against his own insurer that was fatal, because expenses are "incurred" only when one has become obligated to pay for them. Lefebvre v. Government Employees Insurance Co., 110 N.H. 23, 25 (1969). But the Court drew the line in the next sentence:
"It is true that under our collateral source rule, plaintiff was entitled to recover the full value of the services from a third party tort-feasor . . . and in the absence of a subrogation agreement or assignment would be able to keep the full amount recovered."
Id. That sentence was not the holding. It was the Court saying what it was not deciding, and no New Hampshire decision I have found since has explained why it is wrong. Nothing incurred, nobody subrogated, full value recoverable in tort anyway. So "incurred" does real work in New Hampshire, and the work it does is to limit what a policyholder can collect from his own insurer under a contract. It is not a limit on what an injured person recovers under the common law from the person who hurt them.
Lefebvre also answers the sharpest form of the defense argument, which is that a write-off is not a collateral source at all. On that view the discount comes from the provider rather than from an insurer, nobody conferred a benefit on the plaintiff, and the collateral source rule never engages in the first place. But Lefebvre is that case exactly: the hospital itself furnished the services for nothing. The benefit came from the provider, not from a payer, and the Court still said the full value was recoverable in tort. Moulton's rule reaches compensation "by some source independent of the tort-feasor," and a hospital is independent of the tortfeasor. Clough put it beyond argument: it makes no difference whether the benefit arrived "by virtue of friendship, philanthropy or contract with a third party," and a negotiated write-off is a contract with a third party.
The federal court reached the same place from the other direction. Reed v. Nat'l Council of the Boy Scouts of Am., Inc., 706 F. Supp. 2d 180, 190-94 (D.N.H. 2010), denied a billed-versus-paid motion on the ground that a write-off "confers just as much of a benefit on the plaintiff" as a payment does. That is the answer to the transfer framing. A write-off is not the absence of a benefit. It is a benefit in another form, and where it came from is exactly what prong one keeps from the jury.
So the write-off is a collateral benefit like the others. Whether the charge behind it was reasonable stays contested, and prong two is where the defense contests it: in front of the jury, on evidence.
What the minority orders are actually doing
Read the minority orders and the reasoning is about policy rather than about the probative value of evidence.
Gray described the collateral source rule as one that "has outlived its original justification" in a world of "ubiquitous, federally mandated insurance coverage, and managed care," and said the court was "at a loss to understand why an artificially inflated amount on a medical statement . . . should be an appropriate measure when no liability attaches to the plaintiff for the balance." Gray, No. 213-2017-CV-00204, slip op. at 2-3. The court is right that medical bills can sometimes bear little relation to value. That is a real argument about what the evidence is worth, and it is one the defense is free to put to a jury.
The clearest statement of what is happening comes from the minority side itself. Violette considered the middle path, letting both numbers in and charging the jury to find reasonable value on all the evidence, and rejected it in a footnote that gives the game away: whether a billing department's list prices reflect the true value of medical services "involves legislative facts that may properly be considered by the courts, and not adjudicative facts within the special province of the jury." Violette, slip op. at 4 n.2. A legislative fact is a general proposition a court may notice precisely because it does not vary from case to case. What a particular hospital charged a particular patient for a particular operation is not a general proposition. It varies by provider, by procedure, by year, and by the plaintiff in the box. New Hampshire has already said so: Veilleux, set out above, holds that the rule "does not permit the generalized conclusion proposed by the defendants" and "instead requires a case-specific determination of the reasonable value of medical expenses." Case-specific is what adjudicative means.
Violette adopted the minority position, quoting the Restatement (Third) of Torts: Remedies § 19 cmt. e for the proposition that "[t]he discount from billed rates is not a discount or a collateral benefit; it is the difference between reality and fiction," and concluding that the minority rule "better comports with present day realities." Violette, No. 212-2022-CV-00007, slip op. at 4. Its holding is explicit about the ground it rests on:
"[I]n the absence of controlling authority from our Supreme Court or the legislature, this Court adopts the minority position and rules that the proper measure of damages for medical expenses is the amount actually paid and accepted by the medical providers in full satisfaction of their bills."
Violette, slip op. at 5. Violette is candid that it is choosing a rule.
Three observations follow.
The newest of these orders concedes there is no controlling authority. Violette is not applying a rule. It is choosing one, and saying so. To be fair about it, so is the majority view: with the Supreme Court silent, every trial judge deciding this is choosing. The difference is which way the choice runs. One keeps a disputed fact with the factfinder and lets both sides put on proof, which is what the rules of evidence do by default. The other resolves the fact first and admits the evidence that matches. The former is a matter of evidence, and the latter is policy.
The choice is being made at the wrong level. A federal judge applying New Hampshire law made the institutional point directly in Picard v. Ciulla, 691 F. Supp. 3d 405 (D.N.H. 2023), declining to abandon what the court called the established and longstanding majority approach in favor of the minority approach urged by the defendant and some state superior courts. Picard also faulted Gray for not describing the evidence, beyond the providers' later acceptance of partial payment, on which it found the billed amounts "artificially inflated." A finding that a category of documents is inflated, made without evidence and applied prospectively to all cases, is a legislative act, not an evidentiary one.
And the criticism is not one-sided. Keller addressed Gray directly, concluding that it "misstates both the rationale for and the genesis of the collateral source rule." Keller, 2019 N.H. Super. LEXIS 3, at *9. A judge asked to follow Gray can be shown that another judge who examined it declined to.
How the premise travels
The practical concern is not that a court might adopt the minority rule after full briefing. It is that the premise underneath the minority rule can turn up in rulings where nobody argued it.
In a New Hampshire Superior Court personal injury case I handled in 2026, the plaintiff moved in limine to admit the plaintiff's medical bills under Superior Court Rule 37(a), set out above. The motion argued the rule's conditions and no others. The defendant's objection did not raise the collateral source rule, billed versus paid, or the amounts anyone had paid.
The court denied the motion without prejudice and stated a condition the rule's text does not: the bills "must be actual bills that charge a debt to the plaintiff that the plaintiff was responsible for paying, not just inurance [sic] statements." It is the minority position's core premise, that the collateral source rule reaches only amounts the plaintiff was personally exposed to pay: Gray, No. 213-2017-CV-00204, slip op. at 3. The order asked who bore the charge after a payer's adjustment, which is not the same question as whether an obligation arose when the services were rendered and billed.
The federal line, and who wrote it
Federal decisions applying New Hampshire law are persuasive rather than binding. Four of these six orders are by the same judge. Judge Laplante wrote Aumand, Reed, Doreen W., and Lamontagne. Judge DiClerico wrote Williamson and Judge McCafferty wrote Picard.
The orders span a quarter century, they run across Medicaid, Medicare, and commercial insurers, and no judge of that court who has reached the question has come out the other way in any order I have located. These are the orders I have. There are likely more.
Order | Judge | Result |
Williamson (2000) | DiClerico | Medicaid. Denied. Reasonable value is the measure "regardless of the amount paid for those services by Medicaid." |
Aumand (2009) | Laplante | Medicare and a supplemental insurer. Denied. Paid-amount evidence is an end-run around the rule and fails Rule 403. |
Reed (2010) | Laplante | Insurers. Denied on the collateral source ground: a write-off "confers just as much of a benefit on the plaintiff" as a payment. A separate motion excluding the plaintiff's pre-majority bills was granted on capacity grounds. |
Doreen W. (2013) | Laplante | Plaintiff's insurers. Denied. Face amounts are evidence of reasonable value, contestable but not excludable. |
Picard (2023) | McCafferty | Government payer. Denied. Declined to adopt the minority approach and criticized Gray. |
Lamontagne (2026) | Laplante | Medicare and Medicaid. Denied, and the plaintiffs' motion to exclude all reference to Medicaid and Medicare granted. |
Full citations: Williamson v. Odyssey House, Inc., Civil No. 99-561-JD, 2000 DNH 238 (D.N.H. Nov. 3, 2000); Aumand v. Dartmouth-Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 90-92 (D.N.H. 2009); Reed v. Nat'l Council of the Boy Scouts of Am., Inc., 706 F. Supp. 2d 180, 190-94 (D.N.H. 2010); Doreen W. v. MWV Healthcare Assocs., Inc., 937 F. Supp. 2d 194, 196-97 (D.N.H. 2013); Picard v. Ciulla, 691 F. Supp. 3d 405 (D.N.H. 2023); Lamontagne v. Hande, No. 23-cv-395-JL-TSM, 2026 DNH 075 (D.N.H. June 15, 2026).
Lamontagne is the newest word on the subject in this jurisdiction. The defendants there relied on Violette among other Superior Court orders. The court found it and like Superior Court decisions unpersuasive "[i]n light of settled authority here," and observed in a footnote that "[w]hile ultimately rejecting this court's approach, Judge Attori [sic] recognizes that it represents the majority rule." The judge who adopted the minority position in New Hampshire's most recent Superior Court order acknowledged, in that order, that the position he was rejecting is the majority one.
Where this leaves a New Hampshire injury claim
The New Hampshire Supreme Court has not decided billed versus paid. Until it does:
The Supreme Court authority that exists points toward reasonable value as the measure and away from the identity or generosity of the payer.
The Superior Court is split, and the minority orders describe themselves as adopting a policy in the absence of controlling authority.
The federal District of New Hampshire has been consistent for a quarter century, most recently in June 2026.
Which line of authority governs can depend on which court and which judge hears the motion.
If you are being told your medical bills are worth only what your insurer paid, that is a contested position in New Hampshire, not a settled one.
Litigating a billed-versus-paid motion
Consider briefing it early
Because the answer can turn on which judge hears the motion, raise it on a schedule you choose rather than discover it in the final pretrial filings. Counsel who waits for the defense motion in limine argues on the defense's framing, in the week before trial, to a judge reading the question for the first time.
The arithmetic nobody puts in the motion
Take the numbers this article opened with. Cap the medical damages at the $41,000 paid. Where the payer holds a right of reimbursement, and many do, though the obligation varies by payer type, that right runs against the recovery, so the $41,000 comes back out. Subtract the contingency fee and the case costs. The injured person's medical damages net to zero or less.
The $139,000 the hospital wrote off goes nowhere near the injured person and nowhere near the provider. It becomes a reduction in what the tortfeasor's liability insurer owes. Whatever else the minority rule does, it does not prevent a windfall. It moves one, from the party the collateral source rule was written to protect to the party it was written to deny.
The middle path, if the court is inclined to cap
Not every judge who is skeptical of hospital list prices wants to decide the measure of damages before hearing evidence about it. There may be a smaller ask, worth making in the alternative: let both sides put in their proof, let the jury find reasonable value, and take up any reduction after the verdict rather than by pretrial exclusion. The jury still never learns who paid. New Hampshire already handles one collateral source question in that posture: evidence that workers' compensation paid is kept from the jury, Abbott v. Hayes, 92 N.H. 126, 133 (1942), and the carrier's lien under RSA 281-A:13 is satisfied out of the recovery afterward.
Say the honest part too. No New Hampshire statute provides a collateral source offset in an ordinary tort action, so a court that adopts a cap is fashioning the remedy either way. The choice is between a remedy applied after the jury has done its work and one applied before the jury is allowed to do it.
Preserving it
Make the offer of proof. Get the excluded bills marked and identified. A reviewing court cannot evaluate the exclusion of evidence it cannot see.
Get the ruling written and on the record. New Hampshire Superior Court judges often rule by endorsement on the face of the motion, and an endorsement can be one line that states no reasoning and defines no scope. Ask for a narrative order, or state the ruling and its limits on the record and have the court confirm them.
Move for reconsideration where the order reasons from policy. An order that reaches its result by weighing windfalls rather than by applying a rule of evidence has named its own vulnerability. That is the ground.
Consider the interlocutory route. This question will reach the New Hampshire Supreme Court on somebody's case. An interlocutory appeal from the ruling under Supreme Court Rule 8, or an interlocutory transfer without ruling under Rule 9, is how it gets there before a trial is spent on it.
What to do if you are told your bills are worth only what was paid
Back to the question this article opened with. If your surgery was billed at $180,000 and your plan paid $41,000, the number a New Hampshire jury sees is not settled law. It is a live dispute, and an adjuster who states the answer as though it were settled is telling you one side of it.
You are not required to accept the at-fault party's insurer's valuation of your medical care, and you can ask for any proposed reduction in writing with the basis for it stated. That is a separate question from what your own health plan can claim back out of a recovery. The two get confused constantly, and they have different answers: the first is a disputed valuation you can contest, and the second depends on the terms of your plan.
Three things are worth gathering now, because they get harder to reconstruct later:
Itemized bills from every provider, showing charges as billed. Not just the explanation of benefits from your health plan, which reports what the plan paid rather than what you were charged.
Anything your health plan, employer, or a government payer has sent you about repayment. Whether a payer claims money back out of your recovery changes what you actually take home.
A record of what you were told you owed, and when. Statements, collection notices, and payment plans all speak to what you were charged and when the charge arose.
If this is happening in your case, call (603) 785-1013 and speak directly with Keith. Apis Law has offices in Goffstown and Bedford and represents injured people across New Hampshire.
Frequently Asked Questions
What is the collateral source rule in New Hampshire?
The collateral source rule prevents a defendant from reducing what it owes by pointing to payments the injured person received from an independent source. Moulton v. Groveton Papers Co., 114 N.H. 505, 509 (1974), states it this way: a plaintiff compensated in whole or in part by a source independent of the tortfeasor is still permitted to make full recovery. Moulton lists insurance benefits, employment benefits, gratuitous payments, social legislation benefits, and retirement benefits. Federal courts applying New Hampshire law have applied the rule to Medicare and Medicaid as well.
Can a jury in New Hampshire see the full amount I was billed, or only what was paid?
Under the majority rule that the federal District of New Hampshire follows, and toward which the New Hampshire Supreme Court's collateral source decisions point, the billed amount is admissible evidence of the reasonable value of the services. Lamontagne v. Hande, 2026 DNH 075 (D.N.H. June 15, 2026). It is evidence, not conclusive proof. A minority of New Hampshire Superior Court orders would cap recovery at amounts actually paid, and the Supreme Court has not resolved the conflict.
If the bill is admitted, can the defense still argue it is too high?
Yes, and that is the point. The collateral source rule does not require a jury to accept a hospital's list price. A defendant may cross-examine the treating providers and present qualified opinion testimony that the charge exceeds reasonable value. What it may not do is make that argument by telling the jury what an insurer actually paid. Doreen W. v. MWV Healthcare Assocs., Inc., 937 F. Supp. 2d 194, 197 (D.N.H. 2013).
Does the collateral source rule apply if workers' compensation paid my medical bills?
Yes, and the authority is from the New Hampshire Supreme Court rather than trial court orders. Abbott v. Hayes, 92 N.H. 126, 133 (1942), held that comp rights and common law rights are so separate and distinct that payment of one cannot reduce recovery on the other. Anderson v. De Laurier, 106 N.H. 57, 59 (1964), called it settled law. The comp carrier's lien under RSA 281-A:13 then recovers what it paid out of the third-party recovery.
Has the New Hampshire Supreme Court decided the billed versus paid question?
No. As of August 2026 the New Hampshire Supreme Court has not decided whether recovery for medical expenses is limited to amounts actually paid. The Violette v. Kustan order from December 2025 adopts the minority position expressly "in the absence of controlling authority from our Supreme Court or the legislature." Until the Court rules or the legislature acts, the outcome can turn on which trial court hears the motion.
Related pages
Serving injured people across New Hampshire, including Manchester, Concord, Nashua, Goffstown, and Bedford.
Primary sources
RSA 281-A:13, Liability of Third Person, New Hampshire General Court
RSA 516:29-c, Medical and Hospital Records, Bills, and Reports, New Hampshire General Court
About the Author
Keith F. Diaz, Esq. is the founder of Apis Law, PLLC, a New Hampshire personal injury and employment law firm. Attorney Diaz has been practicing in New Hampshire since 2003 and is admitted to practice in the State of New Hampshire (Bar No. 15831), the U.S. District Court for the District of New Hampshire, and the First Circuit Court of Appeals. He founded Apis Law in 2022 to provide dedicated, client-focused representation to individuals and families throughout New Hampshire. Read more about Attorney Diaz, or contact the firm to discuss a New Hampshire injury claim.
This article is general information about New Hampshire law and is not legal advice. It does not create an attorney-client relationship. The law described here is unsettled and is subject to change by the New Hampshire Supreme Court or the legislature. Last reviewed August 16, 2026.
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