March 27, 2015

The Doctrine of Necessaries -
A Secondary Means to Collect Costs of Care

By: Charles R. Powell III, Esq.

Many long-term care facilities are under the mistaken assumption that, in order for a non-resident to be liable for costs of care of a resident, the non-resident must be a party to a voluntary agreement with the facility. However, one anachronistic doctrine that has repeatedly been reaffirmed (albeit in a modified form) disproves that notion. Under the doctrine of necessaries, a spouse may be held secondarily liable for the costs of care of a resident of a long-term care facility.

In 1995 in the case of Cheshire Medical Center v. Holbrook, 140 N.H. 187 (1995), the New Hampshire Supreme Court revisited the doctrine of necessaries and gave it new life. In Holbrook, the plaintiff, Cheshire Medical Center, sought to recover from the husband of one of its patients. The plaintiff proceeded under the doctrine, arguing that the husband was liable for the necessary care of the wife. Since the defendant husband argued that the doctrine was no longer viable, the Superior Court approved a motion by both parties to transfer the issue to the New Hampshire Supreme Court. The questions asked by the Superior Court included “(1) whether the necessaries doctrine as articulated in our common law violates the equal protection clauses of the New Hampshire and United States Constitutions…and if so, (2) whether the doctrine should be abolished; and if not, (3) whether the liability imposed under the doctrine is sole, joint and several, or primary and secondary.”

In answering, the New Hampshire Supreme Court discussed the origins of the doctrine, stating that “[a]t common law, upon marriage a woman forfeited her legal existence and became the property of her husband….” The Court further explained that since “the wife could not contract for food, clothing or medical needs,… her husband was obligated to provide her with such necessaries…. If the husband failed to so do, the doctrine of necessaries made him legally liable for essential goods or services provided to his wife by third parties.” The Court then discussed the evolution of women’s rights in New Hampshire and stated that “[d]espite these developments, the common law rule of necessaries has endured.” The Court discussed the constitutional guarantees of equal protection and, not unexpectedly, explained that “[t]he traditional formulation of the necessaries doctrine, predicated on anachronistic assumptions about marital relations and female dependence, does not withstand scrutiny….” Noting that the "gender bias in the necessaries rule violated our constitution’s equal protection guarantees,” the Court concluded that the proper solution was to impose reciprocal obligations on both husbands and wives arising under the marital contract. The Court held, however, that the “medical provider must first seek payment from the spouse who received the services before pursuing collection from the other spouse.” In other words, liability was secondary.

In 2010, the New Hampshire Supreme Court had another opportunity to rule on the doctrine. In Southern New Hampshire Medical Center v. Hayes, 159 N.H. 711 (2010), the Supreme Court explained that in order to recover under the doctrine the provider must show that (1) it provided services or goods to a spouse (2) which were necessary for the health and well-being of that spouse (3) the defendant spouse was married to the receiving spouse at the time the debt was incurred and (4) the provider has not been paid. The Supreme Court also added that the provider must also show that the receiving spouse was unable to pay and that the spouses continued to be married for purposes of the doctrine, which meant that there was a mutual expectation among the spouses that they would share assets, expenses, and debts. This meant that separation, even in the absence of divorce, could, but would not necessarily, bar recovery under the doctrine of necessaries.

The importance of the doctrine of necessaries to long-term care facilities is that a spouse of a resident can be liable for costs of care, irrespective of whether the non-resident spouse signed an admission agreement. Although originally a creation of antiquated custom, the doctrine has been revised and reaffirmed by the New Hampshire courts. Since costs of care can easily reach many thousands of dollars on a monthly basis and can be difficult to recover, facilities should not overlook this secondary means of payment.