Welch v. McCarthy

• Decision Date: 17 June 1996
• Docket Number: No. 7711,Docket No. P,7711
• Citation: 677 A.2d 1066
• Parties: Joanne WELCH et al. v. Daniel J. McCARTHY. DecisionLawen 95 464.
• Court: Maine Supreme Court

Page 1066

677 A.2d 1066

Joanne WELCH et al. v. Daniel J. McCARTHY.

Decision No. 7711.

Law Docket No. Pen 95 464.

Supreme Judicial Court of Maine.

Argued Feb. 7, 1996.

Decided June 17, 1996.

Kenneth W. Hovermale, Jr. (orally), Bornstein & Hovermale, Portland, for Plaintiffs.

Carl W. Tourigny (orally), Christopher D. Nyhan, Preti, Flaherty, Beliveau & Pachios, Portland, for Defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

DANA, Justice.

Joanne and Colburn Welch appeal from a summary judgment entered in the Superior Court (Penobscot County, Marden, J.) in favor of Daniel J. McCarthy, D.D.S. The Welches contend that (1) a motion for a summary judgment based on the statute of limitations is not appropriate prior to the submission of the case to the pre-litigation screening panel; and (2) the court erred in granting a summary judgment on the statute of limitations because a genuine issue of material fact exists whether McCarthy had a duty to warn Joanne of recently discovered dangers regarding the implants inserted in her body. We vacate the judgment.

In 1983 Joanne Welch sought treatment by McCarthy for problems with her jaw. In 1984 McCarthy surgically inserted proplast silastic meniscus implants on both sides of Joanne's jaw. McCarthy followed Joanne's condition until April 1985. In October 1987 Joanne received a letter from McCarthy informing her that it had recently come to his attention that some changes in her jawbone may have occurred as a result of her implants; that a small percentage of patients in whom proplast meniscus implants had been inserted had developed degenerative changes in the bone; and that in many cases these changes occurred without any symptoms. The letter stated that as a result of her implants she could also develop bone changes, and it recommended that she make an appointment to determine the status of her joints.

As a result of the letter McCarthy examined Joanne in November 1987. McCarthy told her that her x-rays were the same as they were in March 1985 and recommended no treatment at that time. No further communication occurred between Joanne and McCarthy until August 1992, when she received a certified letter from him. The second letter referred to and reiterated the information in the 1987 letter and requested that Joanne contact McCarthy's office for an examination and evaluation to determine the status of her joints and implants. The letter was prompted by McCarthy's receipt of additional information regarding problems with the implants. McCarthy examined Joanne in September 1992 and recommended she have the implants removed. In March 1993 McCarthy removed the implants. Because of continuing problems another surgical procedure was performed by a different surgeon in February 1994.

On October 26, 1993, the Welches served a written notice of a medical malpractice claim on McCarthy. In their notice of claim they alleged that McCarthy negligently diagnosed and/or treated Joanne. The Welches' specifically claimed that the negligent treatment included McCarthy's failure to schedule or perform follow-up examinations on Joanne within the statutory period and delayed informing Joanne of the dangers of the jawbone implants.

McCarthy filed a motion for a summary judgment on the basis of the statute of limitations. Subsequently, the Welches moved to amend the notice of claim to allege fraudulent concealment based on facts revealed through discovery. The court found that there was no evidence of fraudulent concealment and granted a summary judgment in favor of McCarthy on the basis of the statute of limitations. This appeal followed.

In reviewing an appeal from the grant of a summary judgment we view the evidence in a light most favorable to the party against whom the judgment was entered and review the trial court's decision for errors of law. Gonzales v. Commissioner, Dep't of Pub. Safety, 665 A.2d 681, 682 (Me.1995). When there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law we will affirm a summary judgment. Id. at 682-83.

I.

The Welches contend that it was inappropriate for the court to consider the statute of limitations issue on a motion for a summary judgment prior to the submission of the case to the pre-litigation screening panel because the court analyzed factual questions. They contend that the only affirmative defenses that the court should consider are those claimed and determined pursuant to a M.R.Civ.P. 12(b)(6) motion to dismiss.

Medical malpractice actions may be brought after serving a notice of claim on the person accused of professional negligence and filing a written notice of claim with the Superior Court. 24 M.R.S.A. § 2903 (1990 & Pamph.1995). A plaintiff must then present her claim to a pre-litigation panel before pursuing the claim in court. 24 M.R.S.A. §§ 2851-2859 (1990 & Pamph.1995). The panel determines whether a breach of the standard of care has occurred and whether that breach is the proximate cause of the injury. 24 M.R.S.A. § 2855 (1990). The parties may, however, litigate "certain preliminary legal affirmative defenses or issues" in the Superior Court prior to submission of the case to the panel. ¹ 24 M.R.S.A. § 2853(5) (Pamph.1995).

We have not expressly determined whether section 2853(5) contemplates the Superior Court's consideration of motions for a summary judgment. See Gubellini v. Wilson, 541 A.2d 1290, 1290 n. 2 (1988) (affirming a summary judgment on statute of limitations basis, without intimating an opinion on the procedure); see also Ogden v. Berry, 572 A.2d 1082, 1083-84 (1990) (affirming a summary judgment on the basis of statute of limitations without addressing whether the Superior Court was precluded from considering the motion).

In the instant case the pre-litigation panel chair granted McCarthy's request to litigate in court the statute of limitations defense. Based on the plain meaning of the language of 24 M.R.S.A. § 2853(5) the Superior Court was not precluded from considering a motion for a summary judgment based on the affirmative defense of the statute of limitations prior to the panel's consideration of the case. M.R.Civ.P. 8(c).

II.

The Welches contend that McCarthy negligently failed to warn Joanne within the statutory period of his evolving knowledge of the increasing dangers of the presence of the implants in her body. They contend that because McCarthy's alleged negligence occurred within three years prior to their notice of claim this action is not time barred. McCarthy contends that because Joanne alleges that she suffered injuries as a result of the effect of the implants, the act or omission of alleged professional negligence to which the statute of limitations must apply occurred in 1984 when he performed the implant surgery. He contends that the Welches' action is time-barred given that Maine has not adopted a "continuous treatment" rule.

The statue of limitations for medical malpractice is three years after the cause of action accrues, defined as "the date of the act or omission giving rise to the injury." ² 24 M.R.S.A. § 2902 (1990) (emphasis added). The plaintiff in an action alleging professional negligence must prove that the defendant had a duty to the plaintiff to conform to a certain standard of conduct and that a breach of that duty proximately caused the plaintiff's injury. Fisherman's Wharf Assocs. II v. Verrill & Dana, 645 A.2d 1133, 1136 (Me.1994). In medical malpractice actions expert testimony is ordinarily required to establish the appropriate standard of medical care, that the defendant departed from that standard, and that the plaintiff's injury was proximately caused by the negligent conduct. Chasse v. Mazerolle, 622 A.2d 1180, 1182 (Me.1993).

Whether a party owes a duty of care to another is a question of law. Williams v. Inverness Corp., 664 A.2d 1244, 1246 (Me.1995). The breach and proximate cause issues are questions of fact. Greenstreet v. Brown, 623 A.2d 1270, 1272 (Me.1993); Seiders v. Testa, 464 A.2d 933, 935 (Me.1983). A person who undertakes to render services in the practice of a profession owes a duty to exercise that degree of skill,...