Givertz v. Maine Medical Center

• Decision Date: 26 April 1983
• Citation: 459 A.2d 548
• Parties: Phyllis G. GIVERTZ, Adm'x, Estate of Patricia Carlson v. MAINE MEDICAL CENTER, et als.
• Court: Maine Supreme Court

Page 548

459 A.2d 548

Phyllis G. GIVERTZ, Adm'x, Estate of Patricia Carlson v. MAINE MEDICAL CENTER, et als.

Supreme Judicial Court of Maine.

Argued Jan. 7, 1983.

Decided April 26, 1983.

Dunlap & O'Brien, Mark E. Dunlap (orally), Portland, for plaintiff.

Weeks, Hutchins, Frye, Welch & O'Donnell, Roger A. Welch (orally), Waterville, for Mehrhof.

Hewes, Culley, Feehan & Beals, Philip M. Coffin, III (orally), Peter W. Culley, Martica Sawin, Portland, for Merrill.

Before McKUSICK, C.J., NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice.

The plaintiff, Phyllis G. Givertz, was appointed administratrix of the Estate of Patricia Carlson on June 15, 1979. The plaintiff's intestate, Mrs. Carlson, on July 6, 1978, had committed suicide shortly after her admission on that same day to the Augusta Mental Health Institute on a voluntary readmission basis. Immediately prior thereto, Mrs. Carlson had been admitted to the Maine Medical Center emergency room in Portland as a result of an earlier suicide attempt on her part. On May 28, 1980, the plaintiff, in her capacity of administratrix of the estate, pursuant to 18 M.R.S.A. §§ 2551-2553, ¹ brought an action for wrongful death of her intestate in the Superior Court, Cumberland County, against both hospitals, the State of Maine and ten named defendants, including Drs. David Merrill and Edward Mehrhof. In her complaint, the plaintiff also sought in a separate count damages for conscious suffering of her decedent. The suit alleged negligence in the diagnosis, treatment and supervision of Mrs. Carlson, as well as a violation of her constitutional rights under color of state law. In this appeal, we are solely concerned with the propriety of the Superior Court justice's granting of the doctors' respective motions for dismissal. In the case of the defendant Merrill, we deny the plaintiff's appeal and affirm the judgment of dismissal. In the case of the defendant Mehrhof, we vacate the judgment of dismissal in his favor and remand for further proceedings.

Dr. Merrill's motion to dismiss

The plaintiff's complaint, filed with the court on May 28, 1980, was served on Dr. Merrill on June 26, 1980; ² thus, the reference action, so far as Dr. Merrill is concerned, was commenced within the two-year statute of limitations, whether the suit be viewed as governed by 14 M.R.S.A. § 753 ³ or 24 M.R.S.A. § 2902. ⁴ Instead of answering the complaint within 20 days after service of the summons and complaint upon him (Rule 12(a), M.R.Civ.P.), Dr. Merrill within the 20 days made a motion to dismiss the complaint with prejudice and costs, alleging as ground therefor that

the Plaintiff has failed to comply with 24 M.R.S.A. § 2903 in that no written notice of claim setting forth under oath the nature and circumstances of the injuries and damages alleged has been served upon the defendant, David Merrill, M.D., at any time prior to the commencement of this action.

The Legislature, in 24 M.R.S.A. § 2903, intended to implement the recommendation of the Pomeroy Commission which viewed the mandatory ninety-day notice of medical malpractice claims prior to the commencement of any action for damages on account thereof as a reprieve period before the parties locked horns in a very sensitive judicial proceeding, the Commission believing that such waiting period prior to suit would be beneficial to the parties and the public by helping weed out doubtful claims and encouraging the settlement of meritorious ones. See Jagoe v. Blocksom, 440 A.2d 1022, 1025 (Me.1982). The statute, expressly termed as An Act to Implement the Recommendations of the Pomeroy Commission on Medical and Hospital Malpractice Insurance (see P.L. 1977, chap. 492), in section 2903 of the general provisions of the Act, specifically provided that

[n]o action for death or injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced until at least 90 days after written notice of claim setting forth under oath the nature and circumstances of the injuries and damages alleged is served personally or by registered or certified mail upon the person or persons accused of wrongdoing. Any applicable statute of limitations shall be tolled for a period of 90 days from service of notice.

We immediately point out that in requiring service of a ninety-day mandatory notice of claim prior to the actual bringing of a malpractice suit, the Legislature at the same time integrated this specific legislation into any applicable statute of limitations respecting such actions. Having in mind that such actions must be commenced within two years after the cause of action accrues, whether it be 14 M.R.S.A. § 753 or 24 M.R.S.A. § 2902, the Legislature affirmatively kept the full two-year period intact by providing a tolling of the limitations statute for the required ninety-day run of the notice of claim. Such integration of the two statutes manifests an intent on the part of the lawmakers to make the ninety-day pre-action notice of malpractice claims a mandatory requirement within the two-year limitations statute applicable to the commencement of malpractice suits, which statute has been construed by this Court as mandatory. Millett v. Dumais, 365 A.2d 1038 (Me.1976). See also Beegan v. Schmidt, 436 A.2d 893 (Me.1981).

In interpreting the reference legislation, we held, in Paradis v. Webber Hospital, 409 A.2d 672 (Me.1979), that a notice of claim not under oath was insufficient to toll the two-year statute of limitations and a malpractice suit commenced more than two years after the cause of action for medical malpractice accrued was subject to dismissal upon motion. In the instant case, the malpractice action was commenced within the two-year period of limitations, but no attempt was made during the two-year period 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 which is waived if not raised by the defendant pursuant to Rule 8(c), M.R.Civ.P. Here, the defendant Merrill did raise the plaintiff's noncompliance with the notice of claim requirement in his motion to dismiss. In Dougherty, we held that, "[a]s long as an action is commenced before the expiration of the statute of limitations," and a sufficient notice of claim was served within the period of limitations, although shortly after the commencement of the action in violation of 24 M.R.S.A. § 2903, the noncompliance with the notice-of-claim statute does not necessarily require dismissal of the action, but that a stay of the proceedings would have been the appropriate remedy. In the instant case, the plaintiff did not comply with 24 M.R.S.A. § 2903 at any time within the two-year period of limitations so far as Dr. Merrill is concerned, and thus it is distinguishable from the Dougherty case.

Again, in Michaud v. Northern Maine Medical Center, 436 A.2d 398 (Me.1981), we pointed out that in Dougherty

[b]oth filing of the complaint and service of the notice occurred within the two-year limitations period of 14 M.R.S.A. § 753. Id. at 401.

In Michaud, the defective notice of malpractice claim (defective for failure to be under oath) was served on the defendant hospital some eleven months before commencement of the action. Though defective in one aspect, the notice of claim in Michaud, given in an apparent attempt to comply with the requirements of 24 M.R.S.A. § 2903, was received by the hospital well in advance of both the filing of the complaint and the expiration of the limitations period for bringing suit. The reference notice in Michaud gave adequate information permitting the hospital to assess its exposure and investigate further, if necessary, for possible negotiation of settlement; under such circumstances, the statutory requirement that the written notice of claim setting forth the nature and circumstances of the injuries and damages be "under oath," we held, did not mandatorily compel the dismissal of the action.

In the present case, the plaintiff's present attorney in his brief does not dispute that formal notice of the malpractice claim against Dr. Merrill pursuant to 24 M.R.S.A. § 2903 was not served on Dr. Merrill within the two-year limitations period. He seeks to excuse the noncompliance by reason of his filing the statutory notice of claim on December 12, 1978 with the Augusta Mental Health Institute in connection with a prospective tort claim against that State agency and the State of Maine pursuant to 14 M.R.S.A. § 8107. ⁵ But that notice does not bring the plaintiff's case within the scope of 14 M.R.S.A. § 8107. In the first place, concededly, the notice of claim was addressed to and filed with the State of Maine and the Augusta Mental Health Institute (a State agency--see 34 M.R.S.A. § 2101); it did not purport to be addressed to or filed with Dr. Merrill, nor was any such notice directed to or filed with Dr. Merrill at that time, whether original or copy. Secondly, at the time of the reference notice, no personal representative of the estate of Mrs. Carlson had been appointed and there was no claimant within the meaning of section 8107, since Mrs. Carlson, the original potential claimant was deceased. Neither the self-appointed attorney's advanced notice prior to the appointment of a personal representative qualified to bring suit for the estate, nor whatever correspondence there may have been between that attorney, the Attorney General or any representative of the Augusta Mental Health Institute could substitute for the statutory notice of claim to Dr. Merrill personally, required by 24 M.R.S.A. § 2903, or by 14 M.R.S.A. § 8107(4) which provides that no claim or action shall be commenced against a governmental entity or employee in...