Medical Malpractice Law in Maine (2012)

From Injury to Judgment: Medical Malpractice Law in Maine
(Updated through 2011)

The right to sue a doctor is rooted in common law, almost always the law of torts (negligence), very, very rarely in the law of contracts. In law school we learn that a plaintiffcomplaining that he was injured due to another’s carelessness (negligence) must prove four things: Duty (that the defendant had a duty to use reasonable care toward the plaintiff); Breach of Duty (that the defendant failed to use reasonable care); Damages (that the plaintiff was injured); and Causation (that the damages were caused by the breach of duty). The plaintiff must prove all four elements – if any one element is missing, no case. For example, suppose I escape from a hotel fire which started due to carelessness on the part of the hotel. I am unharmed and lost nothing. Did the hotel have a duty to use care in preventing a fire? Of course, and because it was careless it breached the duty too. But I suffered no damages, so – no case.

The law is the same in the health care context. Tort law imposes on a doctor the duty to use reasonable care in treating a patient. If the doctor breaches that duty, and if that breach causes injuries to the patient, the doctor may be held liable for the patient’s injuries and other damages. The patient must prove each element – duty, breach of duty, causation and damages – by the civil standard of “preponderance of the evidence.” This means that, if one imagines a scale, and the plaintiff’s proof causes the scale to tip even a bit to the plaintiff’s side, the plaintiff wins. The plaintiff has the burden of proof, so, if in the jury’s eyes, the scales are even when the evidence closes, the doctor “wins.”

 Let me here add an aside. In this article I will speak of a hypothetical “doctor.” However, generally speaking the law discussed here applies not just to doctors, but to hospitals, nursing homes, assisted living facilities, to anyMaine health care provider. The scope of the duty of care will of course vary – society does not impose on a medication aide or a nurse the same duty of care it does on a surgeon – but the principles, law and process are the same.

Let’s return to our doctor. What duty does the law impose on her? The Maine Supreme Court says: “A doctor should use ‘the ordinary skill of members of [the] profession in like situation . . . , exercise ordinary or reasonable care and diligence in [the] treatment of the case, and . . . use his [or her] best judgment in the application of . . . skill to the case.’”  Brawn v. Oral Surgery Associates, 2003 ME 11.

That means, essentially, that the doctor (nurse, aide, nursing home etc.) must have and exercise the same skill, judgment and diligence as the usual reasonably skilled, wise and diligent doctor, nurse, aide, nursing home etc. No doctor is perfect and the law does not hold him or her to that impossible standard. A doctor can make a mistake, even a deadly mistake, and not be held liable, so long as the mistake is one even a reasonably skilled and diligent doctor might have made. A doctor can choose one course of action (for example, performing surgery in a certain way) even if another way of doing the surgery would have avoided the injury, unless the technique the surgeon used was outmoded and known to be more dangerous than a newer, generally used technique.

How does the plaintiff prove what a reasonably skilled, wise and diligent doctor would have done? Put another way, how does the plaintiff prove the “standard of care”? This is done by the “expert testimony” of another doctor in the same general field of medicine. The expert witness doctor testifies as to his or her qualifications, and then the judge, assuming he or she finds the doctor qualified to give an opinion, allows the doctor to tell the jury what in the doctor’s opinion is the standard of care. (As you might guess, the defendant also has an expert medical witness, who will tell the jury the defendant doctor adhered to the standard of care and thus did nothing wrong.)

For example, suppose the plaintiff proves that the patient died of an infection from a vein catheter that had been left in place for a week. The expert witness doctor, perhaps with reference to widely used medical books, tells the jury that the standard of care required that the catheter be replaced daily with a sterile catheter, and the catheter wound site inspected and cleaned and changed as necessary. The doctor then testifies that if the catheter had been left in place for seven days, that would represent a violation (breach) of the standard of care.

At that point the plaintiff would have proved duty (“change the catheter daily”) and breach of duty. If the failure to change the catheter is proven to have caused the patient’s death, a plaintiff’s verdict might result.

Before we talk about the often sticky and elusive concept of legal causation let’s talk about damages. In principle, the law holds a civil defendant (a “tortfeasor”) liable for all the damages which flow from the resulting injury. Therefore, in a medical malpractice case we may see a verdict which includes the cost of medical care spent curing or trying to cure the patient, including forecasted future medical costs; the cost of lost wages, both past and present; and the cost of the plaintiff’s pain and suffering and loss of enjoyment of life. If the patient is badly and permanently injured, and will require expensive care for the rest of his life, and lost a valuable career, the verdict may be very large.

When the plaintiff has died or been badly injured, it is typical for the spouse to also sue, for the loss of companionship of the deceased or injured, as well as for the loss of the value of the household services the spouse had provided (for example, lawn mowing, cleaning etc.) This claim is called “loss of consortium.” The spouse, in certain circumstances, may also sue for compensation for the emotional distress, to the spouse, caused by the injury or death. When the plaintiff has died, 2009Mainelaw holds that damages may not exceed $500,000 “for the loss of comfort, society and companionship of the deceased, including any damages for emotional distress arising from the same facts as those constituting the underlying claim.” Title 18-AMaineRevised Statutes §2-804. To the loss of consortium and emotional distress damages would be added medical costs incurred, as well as economic damages – the lost wages, past and (forecasted) future.

Let’s discuss legal causation, often called “proximate cause.” Suppose I operate on a patient for cancer, bungle the operation, and the patient dies on the table. Autopsy shows that the cancer was widespread, and even with the most skilled surgery the patient would have died within weeks. Did the botched surgery cause the patient’s death? Technically, yes, but legally – no. There is no “legal causation.” So, in addition to proving duty, breach of duty and damages, the plaintiff must also prove that the defendant provider’s breach of duty proximately (legally) caused the death or injury. A useful and generally accurate determination of proximate cause may be reached by asking if “but for” the negligence, the damages would have occurred.

Comparative negligence:      If I slip on a mashed banana and hurt my back, can the store show at trial that I was not wearing my glasses, without which I am blind as a bat? Of course it can, and if the jury finds that my “comparative negligence” was equal to or greater than the store’s negligence, I lose. It is the same with medical malpractice. If I am sent home from surgery and I ignore the discharge instructions requiring me to monitor the wound for redness and swelling, and I fail to take the prescribed antibiotics, I may have a hard time persuading a jury to compensate me for the fact that poor operating room hygiene infected me.

At the beginning of this article I wrote “The right to sue a doctor is rooted in common law.” True, but Mainehas enacted a number of statutes which affect that right in extremely important ways. The statutes are found in the Maine Health Security Act, beginning at Title 24 Maine Revised Statutes section 2851.

The Maine Health Security Act provides that every case alleging the malpractice (negligence) of a health care provider must go before a screening Panel before it can go before a jury. The Panel has three members: a chair, who is usually a retired judge; a lawyer; and a health care practitioner, usually one with expertise in the subject matter under inquiry. For example, if a nurse is sued, an experienced nurse may be named to the Panel.

After the Panel is named, there follows a brief period in which the parties investigate the other side’s case. As with any civil matter, there are formal means for requiring the other side’s witnesses, including expert witnesses, to undergo questioning under oath (deposition), for requiring the other side to produce documents (Requests for Production), and to answer written questions under oath (Interrogatories).

Then there is a mini-trial, heard not by a judge and jury but by the three Panel members. The rules of evidence used in courtroom trials are relaxed. At this point the claim, the hearing, and all documents are confidential.

The Panel decides the case, answering three questions: (1) Whether the acts or omissions complained of constitute a breach of the standard of care by the health care provider; (2) Whether the acts or omissions complained of proximately caused the injury complained of; and (3) If negligence on the part of the health care practitioner or health care provider is proved, 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 (comparative negligence).

Now comes the tricky part. Suppose all three Panel members agree that there was a breach of the standard of care and that the breach caused damages and that the plaintiff’s “comparative negligence”, if any, was less than the provider’s. If the parties don’t settle the case and it goes to court for a jury trial, the judge will tell the jury about the Panel’s findings. The same is true for the converse: If the Panel is unanimous for the doctor, and the case goes to trial, the judge will tell the jury something like this: “This case has been heard by a panel consisting of a doctor, a judge, and a lawyer. The panel heard much of the evidence you just heard. The panel decided unanimously that there was no negligence.” As you can imagine, a unanimous Panel finding is a powerful motivator for settlement. (Exactly what the trial judge can say about the Panel proceedings and finding is the subject of ongoing argument and we can expect further clarification from the Maine Supreme Court.)

If the 0Panel is divided on all questions, the jury will hear nothing about the Panel. If the Panel finds unanimously that there was a breach of the standard of care, but also finds unanimously that the breach was not the legal cause of any injuries, the jury will, it appears, be instructed as to both findings. (The case is Smith v. Hawthorne, 2006 ME 19.) If the Panel funds unanimously for one party on one finding, but divides on the others, the jury will hear only about the unanimous finding. Gierie v. MercyHospital, 2009 ME 45.

The law here is a moving target, with new legal precedent coming frequently – one more reason to consult only an attorney quite familiar with this area of law.

The statute of limitations for actions against health care providers is a short three years from the date of the first negligent act or failure to act (omission).That means if you do not take formal action against the provider within that period, you cannot win.

In 2011Maine’sLaw Courtcreated an important exception to the three year statute of limitation, applying, for the first time, the “continuing negligence” exception to the statute of limitations. The continuing negligence exception states that if there were repeated acts of negligence, one or more of which occurred within three years of bringing suit, and if all the negligent acts contributed to the harm, the medical provider can be held liable for all the negligent acts.

The case (Baker v. Farrand, 2011 ME 91) involved a patient who each year had aPSA blood test given by his family doctor. APSA test may indicate prostate cancer. In 2003, 2004, 2005 and 2006 the test showed possible cancer, but the doctor did not refer the patient to a urologist until  2006. The urologist diagnosed him with advanced cancer.

The patient brought suit in September 2007, claiming the doctor should have referred him to a urologist in 2003. The doctor moved for a partial judgment, arguing that because of the three year statute of limitation he could not be held liable for any error or omission (negligence) occurring before September 2004. The Superior Court granted the partial judgment, and the patient appealed.

The Law Courtfound that the continuing negligence exception to the three year statute of limitations applied. It held that in a medical malpractice case, where there has occurred a series of negligent acts, the statute of limitations does not begin to run until the last negligent act – if each negligent act contributed “to at least some demonstrable degree” to the harm (damages). The Law Court sent the case back to the trial court, with instructions that the patient could recover for any acts or omissions that occurred more than three years prior to suit, if he could establish that each of those acts or omissions deviated from the applicable standard of care and, in combination with an act or omission that occurred within the limitations period, contributed to and was a proximate cause of his harm.

A little complicated, and surely this doctrine is subject to furtherLaw Court rulings, but believe me, this ruling will save a lot of cases!

There are exceptions to the three year statute of limitations, including for young plaintiffs and plaintiffs with mental disability. Talk to a lawyer: Don’t assume you have no case.

Nicholas Walsh is a lawyer in Portland, Maine. He may be reached at 207-772-2191, at, or see

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