Judge allows N.H. prison’s ‘pay to stay’ counterclaim to continue

  • The former warden tower office and hanging area at the New Hampshire State Prison in Concord. The tower is where the warden had an office in 1939 when Howard Long was put to death in lower area. GEOFF FORESTER

Monitor staff
Published: 2/19/2019 3:04:39 PM

A Merrimack County Superior Court judge has ruled that the New Hampshire Department of Justice was not acting in a “retaliatory way” when it sought to recoup the cost of a former prisoner’s care after that inmate sued for medical malpractice.

Judge Richard McNamara denied the American Civil Liberties Union of New Hampshire’s request to stop the Department of Justice from seeking $119,000 from Eric Cable, a Northwood man who is suing the state for medical malpractice.

In a seven-page ruling, McNamara expressed skepticism about the ACLU’s argument any money the state could collect would violate their client’s constitutional right to seek financial remedy from the state, calling the argument “confounding.”

The maximum amount someone who sues the state for medical malpractice is $475,000; the ACLU argued in early January that the state’s claim would unfairly impact any money their client could receive.

McNamara also disagreed that the state’s pursuit of the money, which has only been done about 10 times since 2010, was done in retaliation after Cable sued for malpractice. 

Cable was released from prison in 2017 after serving a roughly four-year sentence for causing the death of a Manchester man in a drunken boating accident on Northwood Lake in 2012.

He sued the state last March, alleging prison officials were negligent in not properly treating him for Type 2 Diabetes by failing to perform regular lab tests, foot exams or thorough eye exams. As a result, he says he lost partial eyesight in one of his eyes.

The decision means the state can pursue their claim while Cable sues them. Cable’s case was scheduled to go to trial in April, but his lawyer had anticipated it would be delayed while the counterclaim matter was considered.

New Hampshire’s so-called “pay-to-stay” law has been on the books since 1996.

For those against the practice, there may be hope: a bill that would disallow the state from collecting such fees passed in a resounding 20 to 0 vote last week, the same day McNamara made his ruling.

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