Dickey v. Vermette

• Citation: 960 A.2d 1178,2008 ME 179
• Decision Date: 09 December 2008
• Docket Number: Docket: Som-08-143.
• Parties: Maetta DICKEY et al. v. Gerald E. VERMETTE.
• Court: Maine Supreme Court

960 A.2d 1178

2008 ME 179

Maetta DICKEY et al. v. Gerald E. VERMETTE.

Docket: Som-08-143.

Supreme Judicial Court of Maine.

Argued: September 17, 2008.

Decided: December 9, 2008.

Nicholas Bull, Esq. (orally), Bradford Bowman, Esq., Thompson, Bull, Furey, Bass & MacColl, Portland, ME, for appellants.

Christopher Taintor, Esq. (orally), Norman, Hanson & DeTroy, Portland, ME, for appellee.

Julian Sweet, Esq. (orally), Berman & Simmons, Lewiston, ME, for Amicus Curiae, Maine Trial Lawyers Association.

Charles A. Harvey, Esq., Robert S. Frank, Esq., Harvey & Frank, Portland, ME, for Amicus Curiae, Maine Medical Association.

Panel: SAUFLEY, C.J., and CLIFFORD,^* ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

Majority: SAUFLEY, C.J., and CLIFFORD, LEVY, MEAD, and GORMAN, JJ.

Dissent: ALEXANDER, J.

Dissent: SILVER, J.

GORMAN, J.

[¶ 1] Maetta and Todd Dickey appeal from a judgment by the Superior Court (Somerset County, Jabar, J.) granting Gerald E. Vermette's motion for partial summary judgment on the Dickeys' medical malpractice claims. The Dickeys argue that the Superior Court erred when it found that the continuing course of treatment doctrine is inconsistent with, and should not be used to interpret, the statute of limitations provision in the Maine Health Security Act, 24 M.R.S. § 2902 (2007). The Maine Trial Lawyers Association (MTLA) filed an amicus brief and presented oral argument urging us to adopt a different cause of action called the continuing negligent treatment doctrine. We affirm the Superior Court's judgment and do not reach the issue raised by the MTLA.

[¶ 2] From 2000 to 2005, Maetta Dickey was a regular patient of Gerald E. Vermette, D.D.S. In March 2000, a dental hygienist at the practice noticed a dark spot on an x-ray taken of Dickey's teeth. The hygienist noted that the spot was odd but did not express any serious concerns to Dickey. Dickey continued to visit Vermette's office every three to five months for routine appointments. During these subsequent visits, the same hygienist showed the spot to Dr. Robert E. Clukey, Jr., D.D.S., who replied that the office would "keep an eye on it."¹ In March 2005, a second x-ray taken of Dickey's mouth showed that the spot had grown. Vermette viewed the 2000 and 2005 x-rays at that time and referred Dickey to an oral surgeon, who diagnosed her with oral cancer. Dickey underwent extensive surgery to remove the tumor, surrounding tissue, and part of her jawbone, and she has undergone continuing reconstructive surgery.

[¶ 3] Dickey and her husband filed a notice of claim against Vermette on February 23, 2006, with the Superior Court. See 24 M.R.S. § 2853 (2007). They alleged medical or professional negligence and loss of consortium. Vermette requested and received permission from a prelitigation screening panel to move for partial summary judgment in Superior Court pursuant to M.R. Civ. P. 56. He argued that no genuine issue of material fact existed as to any claims based on acts or omissions occurring before February 23, 2003, because such claims were barred by section 2902's three-year statute of limitations.

[¶ 4] The Dickeys argued that the court should apply the continuing course of treatment doctrine to effectively toll the statute of limitations until after Dickey's relationship with Vermette ended in 2005. The Superior Court ruled in favor of Vermette, declining to recognize the continuing course of treatment doctrine because it was inconsistent with section 2902. Although the court noted in its judgment that the Dickeys were not precluded from bringing claims for acts or omissions that occurred after February 23, 2003, the Dickeys did not pursue such claims. Instead, in order to immediately appeal the partial summary judgment and give this Court an opportunity to consider the applicability of the continuing treatment doctrine, the Dickeys stipulated that no act or omission occurring after February 23 2003, was a proximate cause of their injuries.

[¶ 5] This case requires us to interpret section 2902. Statutory interpretation is a question of law, which we review de novo. State v. Thongsavanh, 2007 ME 20, ¶ 27, 915 A.2d 421, 427. Our primary purpose in interpreting a statute "is to give effect to the intent of the Legislature." Arsenault v. Sec'y of State, 2006 ME 111, ¶ 11, 905 A.2d 285, 287-88. We begin by looking at the plain meaning of the statute, and, if there is no ambiguity, we do not apply rules of construction or examine legislative history. Ashe v. Enter. Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157, 1159.

[¶ 6] Section 2902 provides, in relevant part:

Actions for professional negligence shall be commenced within 3 years after the cause of action accrues. For the purposes of this section, a cause of action accrues on the date of the act or omission giving rise to the injury.... This section does not apply where the cause of action is based upon the leaving of a foreign object in the body, in which case the cause of action shall accrue when the plaintiff discovers or reasonably should have discovered the harm.

24 M.R.S. § 2902.

[¶ 7] In setting a three-year period of limitations, declaring that the cause of action "accrues on the date of the act or omission giving rise to the injury" and carving out a specific exception for foreign objects, the Legislature effectively declined to adopt the continuing course of treatment doctrine. By allowing the Dickeys to bring claims for acts or omissions that occurred before February 23, 2003, simply because Maetta Dickey did not end her relationship with Vermette until March 2005, we would be imposing a judicially-created exception that is contrary to the plain meaning of section 2902. We cannot do that. See Dasha v. Maine Med. Ctr., 665 A.2d 993, 996 (Me.1995) (stating that the Legislature has outlined the contours of the statute of limitations in section 2902 and has divested this Court of its responsibility to define when a medical malpractice cause of action accrues).

[¶ 8] Therefore, we agree with the Superior Court that the statute of limitations in section 2902 bars the Dickeys' claims arising from acts or omissions that occurred before February 23, 2003, and affirm the judgment granting partial summary judgment to Vermette. See M.R. Civ. P. 56(c).

[¶ 9] Because the Dickeys stipulated that no act or omission occurring after that date was a proximate cause of their injuries, we decline to address MTLA's argument to adopt the distinguishable "continuing negligent treatment" doctrine. Under the "continuing negligent treatment" doctrine, the limitations period would begin to run for all claims on the last act of negligence, as long as that act occurred within three years before the legal action was initiated. Given the Dickeys' stipulation, however, any discussion about this doctrine, including whether it is consistent with section 2902, is irrelevant and premature.²

The entry is:

Judgment affirmed.

ALEXANDER, J., dissenting.

[¶ 10] I respectfully dissent. It is black-letter medicine that when a suspicious dark spot appears on an x-ray, and cannot be otherwise explained, there should be disclosure and warning to the patient, further investigation, and forensic testing for the possibility of cancer. See Bolton v. Caine, 541 A.2d 924, 925-26 (Me. 1988) (failure to inform patient of possibly cancerous spot observed on lung x-ray constitutes actionable malpractice).

[¶ 11] The evidence here is undisputed that a hygienist under Dr. Vermette's supervision saw such a suspicious dark spot in an x-ray in March 2000 and that the hygienist told Maetta Dickey that an "odd or irregular" spot was observed, but said nothing further. There is also no dispute that, although Dickey visited Dr. Vermette's office every three to five months from 2000 to 2005, she was never warned about the potential significance of the suspicious dark spot and no further testing or forensic studies were ordered. This occurred despite the internal discussions within Dr. Vermette's staff that they would "keep an eye on it."

[¶ 12] In March 2005, five years after the possibly cancerous spot was identified, Dickey was referred to an oral surgeon after Dr. Vermette viewed a new x-ray and determined that the suspicious dark spot had grown. The oral surgeon diagnosed the dark spot as cancer. By then, options for limited, non-disfiguring treatment that may have existed in 2000, 2001, or 2002 were lost. Because of the failure to exercise due care in 2000 by warning Dickey of the risk of cancer and conducting further forensic examinations, Dickey had to undergo painful, disfiguring treatment to remove the larger tumor, surrounding tissue, and part of her jaw, and she has undergone continuing reconstructive surgery.

[¶ 13] Today's opinion sends a "don't warn, don't treat" message that is contrary to good law, good medicine, and good common sense. The Court holds, in essence, that a doctor who identifies a risk of cancer in the treatment of a patient, but fails to warn the patient of the risk, will be shielded from liability for such blatantly negligent care if the doctor keeps the information from the patient and sacrifices opportunities for less painful and invasive treatment until after the statute of limitations has expired. In adopting the statute of limitations for the Maine Health Security Act, the Maine Legislature did not intend such a perverse result.

[¶ 14] The statute of limitations, 24 M.R.S. § 2902 (2007), provides that professional negligence actions must be commenced within three years after a cause of action "accrues." The statute then provides that "[ ] for the purpose of this section, a cause of action accrues on the date of the act or omission giving rise to the injury." Id.

[¶ 15] The "injury" here is not the existence of the suspicious dark spot, first discovered in March 2000. The "injury" for purposes of this case is the dental practice's failure in their duty of care to disclose the...