Baker v. Merrill Farrand Jr.

• Citation: 2011 ME 91,26 A.3d 806
• Parties: Philip L. BAKERv.Merrill FARRAND Jr. et al.
• Decision Date: 18 August 2011
• Court: Supreme Judicial Court of Maine (US)

26 A.3d 806

2011 ME 91

Philip L. BAKER

v.Merrill FARRAND Jr. et al.

Supreme Judicial Court of Maine.

Argued: April 13, 2011.Decided: Aug. 18, 2011.

Julian L. Sweet, Esq. (orally), Craig A. Bramley, Esq., Berman & Simmons, P.A., Lewiston, ME, for Philip Baker.Mark G. Lavoie, Esq., Christopher C. Taintor, Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, ME, for Merrill Farrand, Jr., and The Medical Group.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.LEVY, J.

[¶ 1] The question presented on report is whether we will recognize the continuing negligent treatment doctrine, which allows a patient to assert a cause of action for professional negligence based upon two or more related negligent acts or omissions by a health care provider or practitioner if some, but not all, of the acts or omissions occurred outside of the three-year statute of limitations period established by the Maine Health Security Act, 24 M.R.S. § 2902 (2010). The Superior Court (York County, Brennan, J.) declined to recognize the doctrine and accordingly granted a partial summary judgment in favor of Merrill Farrand Jr., D.O., and The Medical Group as to the portion of Philip L. Baker's claim of negligent medical treatment that arose more than three years prior to Baker's notice of claim. We accept the report of this case, explain that the language of the Health Security Act authorizes claims of continuing negligent treatment, and vacate the partial summary judgment.

I. BACKGROUND

[¶ 2] The following facts, viewed in the light most favorable to Baker as the nonmoving party, are established in the summary judgment record. Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 5, 8 A.3d 677, 679.

[¶ 3] Dr. Farrand served as Baker's primary care physician from 1987 through 2006. From 1996 through 2006, Farrand tested Baker's prostate-specific antigen (PSA) levels as part of Baker's annual physical exams. PSA tests may reveal evidence of prostate diseases, such as prostate cancer, prostate hypertrophy, and prostatitis. A normal PSA test result is in the 0–4 range; results above that range may indicate prostate disease. Baker's PSA test results were 3.8 in 2001, 5.7 in 2002, 5.2 in 2003, 5.86 in 2004, 5.7 in 2005, and 7.7 in 2006. Baker's 2004 physical exam, at which Farrand drew blood for the PSA test, was conducted on September 22, 2004. After receiving Baker's PSA test results in October 2006, Farrand referred Baker to a urologist. The urologist diagnosed Baker with adenocarcinoma of the prostate after performing a prostate biopsy.

[¶ 4] On September 14, 2007, Baker filed a notice of claim in accordance with the Health Security Act, see 24 M.R.S. § 2853(1)(B) (2010); M.R. Civ. P. 80M(b)(1), alleging that Farrand violated the applicable standard of care by failing to refer him to a urologist in 2003,¹ 2004, and 2005, and that this failure delayed his diagnosis until after his cancer had spread and his treatment options were thereby limited. The court appointed a chair of a prelitigation screening panel, see 24 M.R.S. § 2852(2)(A) (2010), who subsequently ordered the parties to resolve Farrand's statute of limitations affirmative defense by motion with the court. See M.R. Civ. P. 80M(e).

[¶ 5] In August 2009, Farrand moved for a partial summary judgment on Baker's claims arising from any negligent acts or omissions that occurred before September 14, 2004, based on the three-year statute of limitations, 24 M.R.S. § 2902. The Superior Court granted Farrand's motion, concluding that Baker could not bring a claim for any acts occurring more than three years before he filed his notice. The court reasoned that “[t]he Legislature's unambiguous use [in section 2902] of the words ‘act’ and ‘omission’ in the singular indicate that each individual act must be considered in its own right.” With this construction, the court declined to recognize the continuing negligent treatment doctrine pursuant to which the limitations period would begin to run for “a series of interrelated negligent acts that occurred during the course of treatment” on the date of the last act of negligence, “as long as that act occurred within three years before the legal action was initiated.” Dickey v. Vermette, 2008 ME 179, ¶ 9, 960 A.2d 1178, 1180; id. ¶ 32, 960 A.2d at 1185 (Silver, J., dissenting).

[¶ 6] Pursuant to M.R.App. P. 24(a), the parties subsequently filed an agreed-upon motion to report the case to us to review the court's partial summary judgment and, more specifically, to resolve “whether, on the facts presented, the continuing negligent treatment doctrine allows Mr. Baker to pursue an ‘action for professional negligence,’ predicated on acts and omissions that occurred more than three years before he brought suit.” The parties stipulated that, at trial, an expert would testify that Baker suffered damage from negligent acts that occurred within the limitations period and that the damage is “either indeterminate or negligible.” ² The parties further stipulated that Baker would dismiss his action with prejudice unless this Court vacates the court's entry of partial summary judgment. The court granted the motion and reported this matter to us.

II. DISCUSSION

A. The Report Pursuant to M.R.App. P. 24(a)

[¶ 7] Upon report of a case pursuant to M.R.App. P. 24(a), we independently determine whether, as an exception to the final judgment rule, acceptance of the report “would be consistent with our basic function as an appellate court, or would improperly place us in the role of an advisory board.” Liberty Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, ¶ 6, 957 A.2d 94, 98 (quotation marks omitted). We consider whether (1) “the question reported is of sufficient importance and doubt to outweigh the policy against piecemeal litigation”; (2) the question “might not have to be decided at all because of other possible dispositions”; and (3) “a decision on the issue would, in at least one alternative, dispose of the action.” Id. ¶¶ 7–9, 957 A.2d at 98 (quotation marks omitted); M.R.App. P. 24(a).

[¶ 8] The question presented is whether a cause of action for professional negligence under the Health Security Act exists for acts or omissions committed during a continuing course of negligent treatment when some of the acts or omissions occurred outside the limitations period.

1. The Importance of the Reported Question

[¶ 9] As to the first criterion of Rule 24(a), this question of law is a novel one that we expressly left open in Dickey, 2008 ME 179, ¶ 9, 960 A.2d at 1180, and it is capable of frequent repetition. Because its resolution will affect patients' ability to bring legal claims and health care providers' and practitioners' exposure to liability, we conclude that the question is sufficiently important for it to be addressed on report. See Liberty Ins. Underwriters, 2008 ME 149, ¶ 11, 957 A.2d at 98–99; York Register of Probate v. York Cnty. Probate Court, 2004 ME 58, ¶ 12, 847 A.2d 395, 398.

2. Other Possible Dispositions

[¶ 10] The second criterion asks whether another possible disposition would render the reported question moot. Because the question on report addresses a threshold matter related to the application of a statute of limitations, other possible dispositions are limited. However, if the parties' stipulation precludes a finding that a claim for negligence arose within the limitations period, then the statute of limitations would clearly apply and resolution of the reported question would be unnecessary. See Dickey, 2008 ME 179, ¶ 9 n. 2, 960 A.2d at 1180–81.

[¶ 11] The essential elements of a claim for negligence are duty, breach, proximate causation, and harm. Id. The elements of duty, breach, and proximate causation are alleged by the parties' stipulations that between 2002 and 2006, Dr. Farrand “failed to respond appropriately to abnormal [PSA] test results,” and at trial, “Baker would offer expert witness testimony that he suffered damage as a result of the negligent acts that occurred within [the limitations period].” Although the stipulation describes the alleged damage caused by the acts or omissions occurring within the limitations period as “either indeterminate or negligible,” the stipulation nevertheless asserts actual loss or harm for which Baker may prove damages, some or all of which may be negligible.³See Cunningham v. Huffman, 154 Ill.2d 398, 182 Ill.Dec. 18, 609 N.E.2d 321, 325 (1993) (adopting the continuous negligent treatment doctrine and recognizing that the doctrine applies even where the damages arising within the limitations period are negligible); Dickey, 2008 ME 179, ¶ 34, 960 A.2d at 1186 (Silver, J., dissenting) (discussing Cunningham ).

[¶ 12] The stipulation does not preclude a finding that a negligent act or omission occurred within the limitations period. Accordingly, the application of the statute of limitations in this case turns on how we answer the question on report, and there are no other possible dispositions that would render the question moot.

3. Disposition of the Action

[¶ 13] The parties also stipulated that Baker will dismiss this action with prejudice unless we vacate the partial summary judgment. Therefore, a decision that affirms the court's judgment would dispose of this action.

[¶ 14] Because all three criteria required by Rule 24(a) are satisfied, we accept the report of this case. See Liberty Ins. Underwriters, 2008 ME 149, ¶¶ 7–9, 957 A.2d at 98.

B. Continuing Negligent Treatment

[¶ 15] In his appellate brief, Baker frames the issue presented as follows:

Whether the Law Court should recognize that 1) where there has been continuing negligent treatment for, or related to, the same condition; and 2) where, given the progressive and initially asymptomatic nature of the injury, the time at which injury resulted from one of the acts of negligence in the course of treatment cannot be determined precisely; but 3) at least one act of negligence giving rise...