Levesque v. Cent. Me. Med. Ctr.

Citation2012 ME 109,52 A.3d 933
Decision Date21 August 2012
Docket NumberDocket No. And–10–616.
PartiesPaul V. LEVESQUE et al. v. CENTRAL MAINE MEDICAL CENTER.
CourtSupreme Judicial Court of Maine (US)

OPINION TEXT STARTS HERE

Christopher D. Nyhan, Esq. (orally), and Katherine W. Fawcett, Esq., Preti Flaherty, Portland, for appellant Central Maine Medical Center.

John P. Flynn, III, Esq. (orally), Flynn Law Office, Portland, for appellees Paul and Ida Levesque.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SAUFLEY, C.J.

[¶ 1] In this appeal, we consider the following question: When a physician is alleged to have acted as an apparent agent of a hospital, does the Maine Health Security Act, 24 M.R.S. §§ 2501–2987 (2011),1require that the alleged negligent acts or omissions of that physician be evaluated by the mandatory prelitigation screening and mediation panel before a claim may be brought in court against the hospital based on that physician's conduct. We answer the question in the affirmative. Because Maine law requires that a prelitigation screening panel evaluate a physician's alleged professional negligence before consideration at trial,2 and because that did not occur in the instant case, we vacate the judgment and remand for further proceedings.

[¶ 2] Specifically, Central Maine Medical Center (CMMC) appeals from a judgment entered in the Superior Court (Androscoggin County, Bradford, J.) upon a jury verdict determining that CMMC, its employees and/or its agents, including a nonemployee physician, were negligent in their care and treatment of Paul V. Levesque. CMMC argues, among other contentions,3 that the trial court erred in (1) allowing the jury to find the hospital liable for the acts or omissions of a nonemployee physician practicing in the hospital whose alleged professional negligence was not evaluated by the prelitigation screening panel prior to trial, (2) precluding CMMC from presenting expert testimony on the standard of care applicable to the alleged professional negligence of the physician, and (3) excluding habit and routine-practice testimony from nurses who treated Levesque during his recovery at CMMC.

I. BACKGROUND

[¶ 3] On Thursday, April 27, 2006, Paul Levesque underwent aortobifemoral bypass surgery at CMMC. Dr. Allan Ingraham performed the surgery. Following the operation, Levesque was placed in a surgical care unit to recover. On Saturday, Levesque's wife and a CMMC nurse discovered that he had developed a decubitus ulcer, commonly referred to as a bedsore, on his tailbone.

[¶ 4] Ingraham was away over that weekend, and his partner, Dr. Pamela Rietschel, was responsible for Levesque's care during his absence. At all times relevant to this case, Ingraham and Rietschel were partners in an independent, private medical practice with privileges to treat patients at CMMC; they were not employees of CMMC.

[¶ 5] On Sunday evening, Levesque's wife called Rietschel and expressed concern that her husband was overmedicated. Later, Rietschel had difficulty waking Levesque and ordered a reduction in the narcotics he was receiving. Ingraham returned on Monday, May 1, 2006, and was surprised to learn that Levesque had developed the bedsore.

[¶ 6] The bedsore worsened as time passed. Levesque sought specialized medical care for the bedsore, which took approximately four months to heal. Levesque continues to suffer residual pain, can sit for no longer than ten or fifteen minutes at a time, and has developed other physical ailments as a result of the bedsore.

[¶ 7] On October 26, 2007, the Levesques filed a notice of claim, pursuant to 24 M.R.S. § 2853(1), alleging professional negligence. That notice initiated the mandatory prelitigation screening and mediation panel process. See id.§§ 2851, 2853(5). The notice named CMMC and its agents and employees as parties and, separately, named Ingraham. The claim against CMMC appeared to be based primarily on the conduct of the nurses who treated Levesque. The notice did not name Rietschel or assert that she had engaged in professional negligence that was a proximate cause of Levesque's injuries. See id. §§ 2502(7)(B), 2853(1).

[¶ 8] Levesque's claim proceeded through the prelitigation screening panel hearing process. See id.§§ 2851–2859. Rietschel's actions were apparently not made an issue at the panel hearing, and she was not called as a witness.4 On November 26, 2008, the prelitigation screening panel issued unanimous findings that neither Ingraham nor CMMC had deviated from the applicable standard of care while treating Levesque.

[¶ 9] On December 15, 2008, the Levesques filed a joint complaint naming only Ingraham and CMMC as defendants and alleging negligence, negligent infliction of emotional distress, and loss of consortium. The complaint did not name Rietschel as a defendant or allege that, at any relevant time, Ingraham or Rietschel were agents of CMMC. Ingraham filed a motion for summary judgment. The court determined that Ingraham was not professionally negligent as a matter of law and granted his motion for summary judgment on February 5, 2010. 5 That judgment is not challenged on appeal.

[¶ 10] Prior to trial, and with Ingraham released from the litigation, Levesque asserted a new theory of liability against CMMC based on Rietschel's alleged professional negligence,6 claiming that she was an apparent agent of CMMC.7 Although the prelitigation screeningprocess is confidential and is not made a part of the record, see id. § 2857, Levesque does not dispute that Rietschel's acts or omissions were not specifically presented to the panel for evaluation. Until Levesque asserted the new theory just before trial, Rietschel's conduct had not been the focus of any of Levesque's claims. Any effort to assert a claim directly against Rietschel may, by then, have been barred by the three-year statute of limitations for professional negligence claims. See id.§§ 2859, 2902. Levesque, however, asserted the claims under the umbrella of CMMC's liability, and CMMC and its agents had been named in the original notice of claim.

[¶ 11] Before trial, both parties filed motions in limine. CMMC moved to preclude Levesque from advancing a theory of liability against it based on the apparent agency of Rietschel and to limit the parties to one expert per issue. Levesque moved to preclude CMMC from eliciting habit and routine-practice testimony from the nurses who participated in his care. The court granted the motion limiting the experts and deferred a ruling on the other motions pending presentation of the evidence at trial.

[¶ 12] A jury trial was held in July 2010. Over the course of the trial, Levesque, his wife, Ingraham, Rietschel, CMMC nurses who cared for Levesque, and experts for both sides testified. The court reserved a ruling on the issue of Rietschel's purported agency until the close of testimony, effectively allowing Rietschel's alleged professional negligence to be presented to the jury. Notwithstanding its ultimate decision to allow the claims related to Rietschel's conduct to be considered by the jury over CMMC's objections, the court precluded CMMC from presenting an expert on Rietschel's standard of care.8

[¶ 13] Regarding the nurses' conduct, CMMC requested that the court allow questions regarding the nurses' routine practices in order to lay a foundation to establish habit or routine-practice testimony. The court denied CMMC's request. In response, CMMC made an offer of proof indicating that all of the nurses had professional training and that they were prepared to testify as to their routine custom and practices in dealing with post-surgical patients; the court reiterated its ruling precluding the habit testimony.

[¶ 14] The jury returned a verdict finding that (1) CMMC, its employees and/or agents, were negligent in their care and treatment of Levesque; (2) Rietschel was an agent of CMMC; (3) the nurses who participated in the care of Levesque were negligent; and (4) Levesque's injury and damages were proximately caused by the negligence of CMMC, its employees and/or its agents. The jury awarded the Levesques a total of $420,000 in damages.

[¶ 15] Following the trial, CMMC filed a motion (1) for a judgment notwithstanding the verdict, (2) to alter or amend the judgment, and (3) for a new trial. The court denied the motion. CMMC filed this appeal.

II. DISCUSSION
A. Standard of Review

[¶ 16] We review issues of law de novo. See Thompson v. Rothman, 2002 ME 39, ¶ 6, 791 A.2d 921. We review for “clear error” a trial court's determination that the necessary factual foundation to admit evidence has, or has not, been established. See State v. Lipham, 2006 ME 137, ¶ 7, 910 A.2d 388. The ultimate determination to admit or exclude evidence is reviewed for an abuse of discretion. See Jacob v. Kippax, 2011 ME 1, ¶¶ 14, 19, 10 A.3d 1159.

B. The Maine Health Security Act

[¶ 17] 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.” Id. § 2502(6).

[¶ 18] Levesque contends that the notice of claim served on CMMC complied with the requirements of the Act because the notice explicitly alleged that CMMC, its employees, and its agents were negligent in the care they provided after his surgery. Levesque asserts that Rietschel was an apparent agent of CMMC and therefore the hospital was put on notice that his claim encompassed her conduct and any professional negligence that could be attributed to the care she provided. We now clarify that, on the facts before us,...

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