On August 21, 2012, the Maine Supreme Judicial Court (“Maine Supreme Court”) overturned a Maine medical malpractice jury’s verdict in the amount of $420,000 in favor of a man and his wife and against a local hospital for the injuries the man allegedly suffered as a result of medical malpractice.
The man had bypass surgery on April 27, 2006 that was performed by a surgeon who was not employed by the hospital. Two days later, while the man remained in a surgical care unit at the hospital, the man was found to have developed a decubitus ulcer (also known as a pressure ulcer or bedsore) on his tailbone. The man’s surgeon was unavailable at that time and the surgeon’s partner was responsible for the man’s care during his absence.
The man’s bedsore got worse over time that required specialized medical care and took about four months to heal. As a result of the bedsore, the man still has pain and cannot sit for longer than 10 to 15 minutes at a time and he developed other physical ailments as a result of his bedsore.
Eighteen months after the surgery, the man and his wife filed a medical malpractice claim against the surgeon and the hospital (including the hospital’s agents and employees) but the medical malpractice claim did not name the surgeon’s partner as a party or allege that the partner had been negligent in the man’s care.
Maine’s law requires that medical malpractice claims be started by filing a notice of claim pursuant to 24 M.R.S. § 2853(1). Once the notice of claim is filed, there is a mandatory prelitigation screening and mediation panel process. As stated above, the man’s notice of claim did not name the surgeon’s partner as a party to the claim or allege that the partner had committed medical negligence that was a proximate cause of the man’s injuries.
The man’s medical malpractice claim proceeded through the mandatory prelitigation screening panel hearing process in which the partner’s actions were not made an issue and the partner was not called as a witness. The prelitigation screening panel issued its unanimous findings that neither the surgeon nor the hospital had deviated from the applicable standard of care while treating the man.
Undeterred, the man and his wife took the next step and filed a medical malpractice complaint with the court against only the surgeon and the hospital, alleging negligence, negligent infliction of emotional distress, and loss of consortium (injury to the marital relationship). The court subsequently determined that the surgeon did not commit medical malpractice and removed him as a defendant in the case. Prior to trial, the man and his wife alleged for the first time that the surgeon’s partner committed medical malpractice and that the partner was the apparent agent of the hospital.
The Maine Supreme Court noted that the Maine Health Security Act requires a plaintiff to commence an action for professional negligence by serving a notice of claim “setting forth . . . the professional negligence alleged . . . on the person accused of professional negligence.” 24 M.R.S. § 2853(1)(A), (B). The Act defines an “[a]ction for professional negligence” as “any action for damages for injury or death against any health care provider, its agents or employees, or health care practitioner, his agent or employees . . . arising out of the provision or failure to provide health care services.”
The Maine Supreme Court further noted that the parties to a claim for professional negligence must participate in the prelitigation screening process, which includes a hearing before a screening panel. At the hearing, “[t]he claimant or a representative of the claimant shall present the case before the panel. The person accused of professional negligence or that person’s representative shall make a responding presentation.” At the conclusion of the presentations, the panel must make findings within thirty days and answer, among other things, the following two questions: (1) “Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care,” and (2) “Whether the acts or omissions complained of proximately caused the injury complained of.”
Since the surgeon’s partner’s acts or omissions that the man and his wife claimed at trial constituted professional negligence were not presented to the panel, and the panel was not asked to evaluate the partner’s own acts or omissions, it was impossible for the panel to evaluate the partner’s alleged medical negligence.
The Maine Supreme Court held, “Regardless of the employment status of a physician, the prelitigation screening panel must, unless the parties agree to bypass the panel, evaluate any claims of professional negligence committed by the physician before those claims are presented to a jury…The panel did not evaluate the claims of [the partner’s] professional negligence. Thus, the court erred in allowing the issue of [the partner’s] alleged professional negligence to be presented to the jury, either as an independent physician or as any kind of agent of the hospital…The alleged negligence of a physician whose purportedly negligent acts or omissions were not evaluated by the prelitigation screening panel may not later be brought into the litigation based on a theory of apparent agency.”
Source: Levesque, et al. v. Central Maine Medical Center, Case No. 2012 ME 109.
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