Dougherty v. Oliviero
| Decision Date | 02 April 1981 |
| Citation | 427 A.2d 487 |
| Parties | Stephen DOUGHERTY and Ann Dougherty v. Dr. Vincent OLIVIERO. |
| Court | Maine Supreme Court |
Berman, Simmons, Laskoff & Goldberg, P. A., William D. Robitzek (orally), C. Martin Berman, Jack H. Simmons, Robert A. Laskoff, John E. Sedgewick, Lewiston, for plaintiffs.
Preti, Flaherty & Beliveau, Christopher D. Nyhan (orally), Thomas R. Kolb, John J. Flaherty, Portland, for defendant.
Before McKUSICK, C. J., and GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ.
The defendant, Dr. Oliviero, was Stephen Dougherty's treating physician at a Portland hospital in November 1977. In October 1979, Stephen Dougherty and his mother filed a complaint in Superior Court claiming damages as a result of defendant's alleged negligence in diagnosing and treating a medical problem with Stephen Dougherty's knee.
In his answer to the complaint, the defendant denied liability and also raised, as an affirmative defense, the plaintiffs' failure to comply with 24 M.R.S.A. § 2903 (Supp.1980), which requires written notice of claim to be served on the prospective defendant 90 days before commencement of a medical malpractice action. 1 Subsequently, the Superior Court granted the defendant's motion to dismiss the complaint because the plaintiffs had not complied with the statutory notice requirement.
It is undisputed that, on the day after they served defendant with the summons and complaint, the plaintiffs served the defendant, for the first time, with a notice of claim. Aside from the failure to comply with the 90-day waiting period, there is no contention that the notice of claim was defective.
The plaintiffs subsequently filed two other complaints against the defendant, both making the same allegations of negligence as the first complaint. Since both complaints were filed more than two years and ninety days after the occurrence of the alleged acts of malpractice, the Superior Court granted defendant's motion to dismiss them on grounds that they were barred by the statute of limitations. 2
The plaintiffs appeal from the judgments dismissing the three complaints. With respect to the first complaint, the plaintiffs contend that section 2903 did not require dismissal of their suit. Alternatively, they contend that the statute of limitations did not bar their subsequent complaints. Finally, they argue that the two year statute of limitations and the 90-day notice requirement for medical malpractice actions violate the equal protection clauses of the state and federal constitutions.
We conclude that the first complaint is still viable and should not have been dismissed. Therefore, we do not consider plaintiffs' arguments with respect to their second and third complaints. Since we interpret the statute not to require dismissal of the action, we also do not reach the constitutional questions.
The purpose of the notice-of-claim requirement is to provide a mandatory 90-day waiting period during which medical malpractice claims can be settled without litigation through the use of the dispute resolution procedures established by the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2905 (Supp.1980). See LaCroix v. Caron, Me., 423 A.2d 247 (1980). We have not previously had an occasion to decide whether compliance with section 2903 is jurisdictional, or is part of the plaintiff's cause of action, or is an affirmative defense to be raised by the defendant. Id. at 247, n.1. 3
We now hold that failure to comply with section 2903 is an affirmative defense and is waived if not raised by the defendant. M.R.Civ.P. 8(c). Since the notice requirement has no relationship to the court's jurisdiction or to the merits of the plaintiffs' cause of action, there is no burden on the plaintiff to plead or prove compliance with section 2903. Like other affirmative defenses on which the defendant has the burden of pleading, the defendant also has the burden of proving noncompliance with the statutory requirement. See 1 Field, McKusick & Wroth, Maine Civil Practice §§ 8.7, 8.20 (1970).
The plaintiffs argue that, under their interpretation of section 2903, they have not failed to comply with the notice requirement. Section 2903 states that "no action ... shall be commenced until at least 90 days after written notice of claim ... is served...." We cannot accept the plaintiffs' suggestion that this language automatically postpones "commencement" of an action until 90 days after service of the notice. According to M.R.Civ.P. 3, "a civil action is commenced (1) by the service of a summons and complaint, or (2) by filing a complaint with the court." Section 2903 does not purport to change this rule. Therefore, compliance with section 2903 clearly requires the plaintiff to serve notice 90 days prior to filing a complaint or serving a summons and complaint. Here it is undisputed that the plaintiffs served the required notice of claim but did so shortly after, rather than 90 days before, filing their first complaint against the defendant. Therefore, the Superior Court could properly find that the defendant had met his burden of proving noncompliance with section 2903.
It was also necessary, however, for the Superior Court to determine the proper sanction for the plaintiffs' noncompliance. While section...
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Houk v. Furman, Civ. No. 82-0202-B.
...The "contrary" holdings referred to by plaintiff are those in Michaud v. Northern Maine Medical Center, supra, and Dougherty v. Oliviero, 427 A.2d 487 (Me.1981). As has been demonstrated, Givertz in no way contradicts Michaud. Nor is Givertz at all inconsistent with Dougherty, which held th......
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Neal v. Oakwood Hosp. Corp.
...within ninety days' after notice" of the malpractice claim 5 did not divest the court of subject-matter jurisdiction); Dougherty v. Oliviero, 427 A.2d 487, 489 (Me., 1981) (the statutory requirement of presuit notice 6 in medical malpractice cases has no relationship to the court's jurisdic......
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Morrison v. Bestler
...v. Presbyterian Hospital of Dallas, 652 S.W.2d 934 (Tex.1983); Givertz v. Maine Medical Center, 459 A.2d 548 (Me.1983); Dougherty v. Oliviero, 427 A.2d 487 (Me.1981); Foil v. Ballinger, 601 P.2d 144 (Utah Bestler, on the other hand, maintains that we have previously addressed this question ......
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Givertz v. Maine Medical Center
...to serve any notice of malpractice claim upon Dr. Merrill, let alone a pre-action notice as required by the statute. In Dougherty v. Oliviero, 427 A.2d 487 (Me.1981), we held that the statutory notice of claim had no relationship to the court's jurisdiction, but was an affirmative defense w......