Smith v. Hawthorne
| Decision Date | 01 March 2006 |
| Citation | 2006 ME 19,892 A.2d 433 |
| Parties | James Edward SMITH et al. v. Catherine HAWTHORNE, M.D. |
| Court | Maine Supreme Court |
Arthur J. Greif, Esq. (orally), Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, for plaintiffs.
George C. Schelling, Esq. (orally), Renee L. Inman, Esq., Gross, Minsky & Mogul, P.A., Bangor, for defendant.
Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.*
[¶ 1] James and Sheryl Smith appeal from a judgment entered in the Superior Court (Hancock County, Hjelm, J.) in favor of Catherine Hawthorne, M.D., following a jury trial on the Smiths' complaint for medical malpractice. Prior to the trial, a prelitigation screening panel had unanimously determined that (1) Hawthorne deviated from the applicable standard of medical care; (2) the deviation did not cause James Smith's injury; and (3) Smith's negligence was not equal to or greater than Hawthorne's negligence. Pursuant to 24 M.R.S. § 2857(1) (2005), the court allowed in evidence the panel's finding favorable to Hawthorne, but refused to allow in evidence the panel's findings favorable to Smith. The Smiths contend that section 2857 is unconstitutional because it violates their right to a jury trial guaranteed by article I, section 20 of the Maine Constitution. We agree that subsections 2857(1)(B) and (C), as applied in this case, are unconstitutional and vacate the judgment.1
[¶ 2] Hawthorne treated James Smith for an open fracture of his left ankle, but the fracture did not heal correctly. The Smiths filed a notice of claim against Hawthorne. They alleged that Hawthorne deviated from the appropriate standard of medical care in allowing Smith's infection to go untreated and that this failure to treat Smith required him to undergo several additional operations, to miss work, and to suffer other long-term or permanent impairments. The notice of claim had the effect of initiating the prelitigation screening panel process, which is set forth in 24 M.R.S. §§ 2851-2859 (2005).
[¶ 3] The prelitigation screening panel, composed of three members, held a hearing, 24 M.R.S. § 2854 (2005), and issued findings, id. § 2855(1). The findings were stated in a "Malpractice Decree," consisting of three questions and answers. The first question was: "Whether the acts or omissions complained of, or found by the panel to exist, or as agreed by the parties, constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care regarding 7(c) as alleged in the Notice of Claim." The panel members unanimously answered this question, "Yes." The referenced paragraph 7(c) in the notice of claim is one of four allegations of negligence in the notice. It stated:
The wound at the fracture site was leaking from a sore at three months. Dr. Hawthorne failed to have a culture taken, a sedimentation rate done, or antibiotics administered. This open wound continued through December of 1997 and, at that time, there was a high index of suspicion of infection reflected in the x-rays. Despite all of these indications, Dr. Hawthorne did not adequately treat this patient for suspected osteomyelitis at that time.
The screening panel placed a footnote at the end of the first question, which stated: "The panel finds no negligence on the remaining issues."
[¶ 4] The second question was: "Whether the acts or omissions complained of proximately caused the injury complained of, or as found by the Panel, or as agreed by the parties." The panel unanimously answered this question, "No." The third question was: "If negligence on the part of the health care practitioner or health care provider is found, whether any negligence [on] the part of the patient was equal to or greater than the negligence on the part of the practitioner or provider." The panel unanimously answered this question, "No."
[¶ 5] Thereafter, the Smiths filed a medical malpractice complaint against Hawthorne in the Superior Court. Prior to trial, the Smiths moved to admit the entire findings of the prelitigation screening panel. They asserted that section 2857 is unconstitutional insofar as it allows only the finding on the second question to be presented to the jury. The court (Jabar, J.) denied the Smiths' motion to admit all of the panel's findings and ruled that section 2857 is constitutional.
[¶ 6] The first jury trial (Mead, J.) ended in a mistrial because the jury could not reach a verdict. In the second trial, the court told the jury that as a preliminary procedural step the case had gone to a medical malpractice screening panel that reviewed the Smiths' claim. The court further told the jury the names of the panel members, that the panel had conducted a summary hearing, and that it was not bound by the rules of evidence. Additionally, the court explained that the panel hearing was not a substitute for a full trial, that the same evidence that the jury heard may or may not have been presented to the panel, and that the jury was not bound by the panel findings. The court stated that the jury was to reach its own conclusions based upon all of the evidence. Finally, the court commented that the panel proceedings were confidential, which prevented the parties from introducing panel documents or presenting witnesses to testify about the panel. This commentary by the court was consistent with our recommendation in Irish v. Gimbel, 1997 ME 50, ¶ 12, 691 A.2d 664, 671. The court then said that Hawthorne's attorney would present the finding of the panel. The attorney stated to the jury: "The panel in this case unanimously concluded that the acts or omissions complained of by the Smiths were not the legal cause of the injuries that he has alleged." The jury issued a verdict in favor of Hawthorne. The Smiths then brought this appeal.
[¶ 7] Absent an agreement by all parties to bypass the prelitigation screening panel proceedings, before a plaintiff is permitted to file a medical malpractice action in a Maine court, the plaintiff must proceed before a prelitigation screening panel. 24 M.R.S. §§ 2853(5), 2903 (2005); see also Powers v. Planned Parenthood, 677 A.2d 534, 537-38 (Me.1996). The purpose of the panel process is "[t]o identify claims of professional negligence which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit; and . . . [t]o identify claims of professional negligence and to encourage early withdrawal or dismissal of nonmeritorious claims." 24 M.R.S. § 2851(1) (2005); Sullivan v. Johnson, 628 A.2d 653, 656 (Me. 1993).
[¶ 8] When a medical malpractice claimant has filed a notice of claim, the Chief Justice of the Superior Court appoints a chair of the panel, who, in turn, chooses the other members of the panel, of whom one must be an attorney and another must be a health care practitioner.2 24 M.R.S. § 2852 (2005). As in this case, the parties often proceed to discovery. A hearing is held at which the parties make presentations, and the rules of evidence do not apply. Id. § 2854(1). The burden is on the claimant to prove negligence and proximate causation by a preponderance of the evidence. Id. § 2855(2)(A). The panel chair is required to attempt mediation of the dispute, id. § 2854(2), but if that is unsuccessful, the panel makes findings by answering three questions:
A. Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care;
. . . .
B. Whether the acts or omissions complained of proximately caused the injury complained of; and
C. If negligence on the part of the health care practitioner or health care provider is found, whether any negligence on the part of the patient was equal to or greater than the negligence on the part of the practitioner or provider.
[¶ 9] Use of unanimous panel findings is governed by 24 M.R.S. § 2857(1), which provides in pertinent part:
B. If the panel findings as to both the questions under section 2855, subsection 1, paragraphs A and B are unanimous and unfavorable to the person accused of professional negligence, the findings are admissible in any subsequent court action for professional negligence against that person by the claimant based on the same set of facts upon which the notice of claim was filed.
C. If the panel findings as to any question under section 2855 are unanimous and unfavorable to the claimant, the findings are admissible in any subsequent court action for professional negligence against the person accused of professional negligence by the claimant based on the same set of facts upon which the notice of claim was filed.
[¶ 10] If the answers to both the negligence and proximate cause questions are affirmative and unanimous, the defendant must enter into negotiations, and if the answers to either of those two questions are negative, the plaintiff must release the claim or "be subject to the admissibility of those findings under section 2847[(1)(B)]." Id. § 2858 (2005).
[¶ 11] If the plaintiff proceeds with a court action for medical malpractice after the panel has made its findings, the matter proceeds in the same fashion as other civil actions. At trial, however, there are limitations as to what may be said about the panel process because of the confidentiality requirement. Id. § 2857. All deliberations of the panel are confidential and privileged, as is the testimony of any expert before the panel. Id. § 2857(2). There are only three exceptions to the confidentiality requirement, and one is the provision that the findings of the panel, if...
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