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State Submits Counterclaim in Malpractice Suit Using Pay-to-Stay Law

— January 22, 2019

Cable was released from prison in 2017 after serving four-year sentence and subsequently submitted a malpractice claim. The state of New Hampshire filed a counterclaim using pay-to-stay.

The American Civil Liberties Union (ACLU) of New Hampshire asked Merrimack County Superior Court Judge Richard McNamara to dismiss a counterclaim filed against their client, Eric Cable, who is suing the state for medical malpractice.  Officials with New Hampshire’s Attorney General’s Office insist that efforts to recoup the cost of care after are not retaliatory, and the state is asking for at least $119,000 under its “pay-to-stay” law.  The law allows the prison system to recoup care costs from inmates up to six years after incarceration.

Cable was released from prison in 2017 after serving four-year sentence for causing the death of a Manchester man in an alcohol fueled boating accident which occurred in 2012.  He filed a lawsuit against the state in March 2018, alleging prison officials were negligent in not properly treating him for Type 2 diabetes.  As a result, he claims, he lost partial vision in one of his eyes.

The state filed its counterclaim in July of the same year.  Now, Assistant Attorney General Heather Neville said the counterclaim is a “separate, independent” matter from the malpractice suit.

“Allowing this counterclaim to proceed would be deeply harmful,” ACLU lawyers wrote in a motion filed previously. “It would have the obvious effect of deterring inmates from bringing valid claims — including constitutional claims — against the state prison system.”

State Submits Counterclaim in Malpractice Suit Using Pay-to-Stay Law
Photo by Emiliano Bar on Unsplash

ACLU-NH lawyer Henry Klementowicz said he and Cable do not contest the state’s right to seek compensation but attempting to do so after a lawsuit was filed violates his client’s constitutional right to seek remedy.  “We know that ‘pay-to-stay’ statutes are one more hurdle people coming out of prison have to overcome before they get back on their feet and become productive members of society,” he said, adding that the claim could impact any amount Cable could receive in a settlement.

Klementowicz continued, “This practice is a way for the state to essentially immunize itself from liability by prisoners because there’s nothing stopping them from doing this in every case where an inmate sues.”

“I had never heard of such a thing,” Cable said. “I honestly felt it was just punishment from them or some sort of retaliation.”

McNamara questioned the validity of the ACLU’s argument because “pay-to-stay” is a constitutional right.  He also called arguments about how much a counterclaim could impact his settlement pre-emptive, because a malpractice settlement has yet to be determined.  “Isn’t this whole thing hypothetical?” he said.

For current inmates, the Attorney General’s Office can seek reimbursement if it determines that an inmate has sufficient assets to pay for all or part of his or her incarceration costs.   According to court documents provided by the ACLU-NH, only eleven petitions for reimbursement have been filed in the last decade, and those sought to recover an estimated $2 million of inmate care.  The lowest stated amount was for $33,109.15 and the highest was $996,051.

McNamara will issue a ruling at a later date.  Meanwhile, Cable’s malpractice lawsuit is scheduled to go to trial in April, but officials believe the trial will be delayed.


N.H. AG’s Office: ‘Pay-to-Stay’ Claim Against Ex-Inmate Not Retaliatory

NH Lawsuit Highlights Prison Inmate ‘Pay to Stay’ Law

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