Houk v. Furman, Civ. No. 82-0202-B.

• Decision Date: 18 July 1985
• Docket Number: Civ. No. 82-0202-B.
• Citation: 613 F. Supp. 1022
• Parties: Rudolph J. HOUK, Plaintiff, v. Robert S. FURMAN, et al., Defendants.
• Court: U.S. District Court — District of Maine

613 F. Supp. 1022

Rudolph J. HOUK, Plaintiff, v. Robert S. FURMAN, et al., Defendants.

Civ. No. 82-0202-B.

United States District Court, D. Maine.

July 18, 1985.

Anthony M. Ambriano, Robert V. Johnson II, Concord, N.H., Robert C. Treworgy, Bangor, Me., for plaintiff.

Michael D. Seitzinger, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Augusta, Me., for defendants.

MEMORANDUM DECISION AND ORDER

CYR, Chief Judge.

This diversity malpractice action was filed on October 8, 1982, alleging negligence by the defendant-physician in treating plaintiff "on or about October 11, 1980." Defendants have moved to dismiss the complaint on the basis of plaintiff's failure to timely serve a 90-day pre-filing notice on defendants as required by 24 M.R.S.A. § 2903. Since the parties have presented materials outside of the pleadings which have not been excluded by the court, the motion to dismiss is treated as a motion for summary judgment under Rule 56. Fed.R. Civ.P. 12(b).

Plaintiff alleges that he was treated by defendant Robert S. Furman, M.D., of Furman, Wickenden and Wickenden, P.A., at the Penobscot Bay Medical Center in Rockland, Maine "on or about October 11, 1980," for a dislocated thumb. On October 8, 1982 plaintiff brought the present action. On October 13, 1982 Dr. Furman and the professional association were served with copies of the complaint. On November 3, 1982, defendants moved to dismiss the complaint. On December 6, 1982, defendants received additional copies of the complaint to which had been added plaintiff's signature subscribed and sworn before a notary public. Defendants have received no other notice of the claim which is the subject of this action.

Title 24 M.R.S.A., section 2903 (Supp. 1984), enacted in 1977, provides:

No 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.

In Givertz v. Maine Medical Center, 459 A.2d 548 (Me.1983), the Maine Supreme Judicial Court Law Court held that section 2903 requires that the 90-day pre-filing notice be served within the two-year statute of limitations, 14 M.R.S.A. § 753, which is applicable to medical malpractice actions, and that the failure to serve such a notice within the required time subjects the malpractice suit to dismissal. Id. at 554.

Plaintiff responds to defendants' argument that Givertz mandates dismissal of the present action by asserting (1) that Givertz is distinguishable; (2) that Givertz, decided on April 26, 1983 following the commencement of suit and service of the pre-filing notice in this case, should not be applied retroactively; (3) that the notice requirement of section 2903 does not apply in this federal diversity action; (4) that the section 2903 notice provision violates the Equal Protection and Due Process clauses of the United States Constitution and the Maine Constitution; (5) that section 2903 is contrary to Me. Const. art. I, § 19; and (6) that 14 M.R.S.A. § 753 denies equal protection insofar as it provides a two-year limitations period for medical malpractice actions.

I. GIVERTZ v. MAINE MEDICAL CENTER Compliance with Pre-Litigation Notice Requirement

Plaintiff's argument that, unlike the present case, no notice of claim was ever served in Givertz, misconceives the holding in Givertz. In upholding the trial court's dismissal of the claim against the defendant physician in Givertz, the Maine court explained:

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 preaction 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).

459 A.2d at 551. The court then explicitly held that "the notice-of-claim-before-suit provisions of section 2903 of title 24 must be served within the two-year period of limitations of the applicable statute. Failure to do so, as in the instant case, properly subjected the malpractice suit to dismissal." Id. at 554.

As in Givertz, plaintiff filed the present malpractice action within the two-year limitations period but failed to provide the pre-litigation notice of claim within that period.¹ Thus, Givertz is essentially indistinguishable.

Relying on Michaud v. Northern Maine Medical Center, 436 A.2d 398 (Me.1981), plaintiff contends that dismissal is not mandated where the complaint is filed before the expiration of the limitations period, even though the pre-litigation notice is given after the limitations period has run. However, unlike the present case, Michaud did not involve service of a notice of claim after the running of the limitations period. The Givertz court explained that the claimed non-compliance with section 2903 in Michaud was that the notice of claim was not under oath. The notice in Michaud was served "well in advance of both the filing of the complaint and the expiration of the limitations period for bringing suit." Givertz, supra, 459 A.2d at 551.

Retroactivity of Givertz

Plaintiff next contends that Givertz, which was decided April 26, 1983, represents a substantial departure from prior holdings and that it should not be applied retroactively. 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 that where an action is commenced before the expiration of the statute of limitations and a sufficient notice of claim is served within that limitations period, though after the commencement of the action, non-compliance with section 2903 does not necessarily require dismissal, and a stay of proceedings may be appropriate.

The issue in Givertz: whether the failure to serve a notice of claim within the two-year limitations period mandated dismissal, was one of first impression for the Maine court. Indeed, the Givertz court carefully distinguished its prior holdings in Michaud and Dougherty. Moreover, Givertz did not involve a question of Maine common law, but an interpretation of a 1977 statute, as manifested by the court's finding of "a clear legislative intent that some notice of claim, be it sufficient or deficient, be served, as mandated by section 2903, within the period of limitations set by the statute as extended by reason of the ninety-day tolling provision of said section." Givertz, supra, 459 A.2d at 553.

Although the Maine court has on occasion declined to give retrospective effect to a new rule of law, see Myrick v. James, 444 A.2d 987, 1001-02 & n. 14 (Me.1982) (and cases cited), unlike Myrick and the cases cited therein, Givertz did not overrule prior decisional law, nor did it expressly preclude the retrospective application of its holding. Thus, plaintiff's claim that Givertz does not apply retroactively must fail.

Applicability of Pre-Litigation Notice Requirement in Diversity Action

Plaintiff contends that section 2903's pre-litigation notice requirement should not be applied in this diversity action because the requirement is "procedural" rather than "substantive." Plaintiff concedes that other state medical malpractice statutes requiring that malpractice claims be initially referred to an arbitration or review board are binding on federal courts sitting in diversity actions. See, e.g., Feinstein v. Massachusetts General Hospital, 643 F.2d 880 (1st Cir.1981) (applying Massachusetts law). However, plaintiff argues that the pre-litigation notice requirement of the Maine Health Security Act, which does not mandate arbitration or panel review, is purely procedural and does not apply in a federal diversity action under the Rules of Decision Act, 28 U.S.C. § 1652, and Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Erie overruled Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), and held that "except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any diversity case is the law of the State." 304 U.S. at 78, 58 S.Ct. at 822. The Court later held in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), that a state statute of limitations was applicable in a diversity action, explaining:

The question is not whether a statute of limitations is deemed a matter of `procedure' in some sense. The question is whether such a statute concerns merely the manner and the means by which a right to recover, as recognized by the State, is enforced, or whether such statutory limitation is a matter of substance in the aspect that alone is relevant to our problem, namely, does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be

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