Can a Prelitigation Screening Panel’s Findings Be Used As Medical Malpractice Evidence in Maine?

In the recent Maine Supreme Court case of Estate of Nickerson v. Carter, a man’s wife appealed from a judgment in favor of a doctor and a primary care facility after a jury found that the doctor was negligent, but that his negligence was not the legal cause of the man’s death. The estate argued that the trial court had erred in five ways. Among the errors it claimed was that the trial court had improperly admitted findings from the medical malpractice screening panel.

The doctor began seeing the man as a patient in the winter of 1993. In an initial visit, the doctor drew blood from the man and found that the man’s cholesterol level was moderately elevated, which is a risk factor for developing cardiovascular disease. The doctor decided he would follow up with another exam in the next two years. Although he saw the man a few times over the next three years, however, he did not order retesting of the man’s cholesterol levels.

In 1997, the man requested an exam and asked the doctor to help him with filling out forms required for participation in an outdoor expedition. The doctor signed the forms but again did not order testing of his cholesterol. The man returned for an exam in 2001, and the doctor finally ordered the test of his cholesterol level. The test revealed that the man’s cholesterol levels had risen. The doctor advised him of corrections he could make to his diet. The doctor made a note to himself to recheck the man’s cholesterol levels in 6-12 months, but did not check the man’s cholesterol within that time frame.

By 2004, the man’s cholesterol levels had improved but were still high. The doctor recommended that the man continue following the new dietary approach and planned to check his cholesterol in a few months. Again, the man was never tested.

In 2006, the man saw the doctor again for a different reason. Again, the doctor didn’t order retesting. Later that year, after kayaking with his family, the man, only 48 years old, died of a heart attack. A major artery was 95% blocked, and he died of severe multifocal coronary atherosclerosis, an artery blocked by cholesterol buildup. The man’s wife filed a notice of claim against the doctor, alleging professional negligence and wrongful death. The estate also made a claim against the primary care facility, that employed the doctor on a vicarious liability theory.

Under the Maine Health Security Act (MHSA), the estate first had to present its claim to a medical malpractice prelitigation screening panel. The three-person panel conducted a testimonial hearing, which included expert witness testimony on the standard of care and causation. The panel found the doctor had not breached the standard of care, and that his actions were not a legal cause of the man’s death. Specifically, a panelist noted that her own family physician had never scheduled a follow-up for her but had asked her to do it herself, and that she had the responsibility to call the family physician to schedule an appointment. She explained that, because of this personal experience, she found the defendant’s expert to be more credible.

The estate sued in Superior Court, again alleging professional negligence and wrongful death. Because the panel’s findings were unanimous and unfavorable to the plaintiff, they were admissible under the MHSA. The estate nevertheless, asked that the evidence be excluded because it was not consistent with the evidence presented at trial and based on off-record information. The trial court, however, permitted the screening panel’s findings to be introduced.

The jury found the doctor negligent but did not find his actions to be the legal or proximate cause of the man’s death. Judgment was entered for the doctor and primary care facility. The estate appealed to the Maine Supreme Court.

With respect to the estate’s argument that the panel’s findings were inconsistent with the evidence, the Court held that the MHSA requires that proceedings and evidence before the panel remain confidential, so the Court could not determine whether the panel’s findings were inconsistent with the evidence. The Court found the trial court correctly declined to consider the evidence presented to determine whether the panel’s findings were inappropriate.

The Maine Supreme Court agreed with the estate that the Panel should not have considered evidence outside the record and had violated the MHSA and procedural rules in doing so. The panel had explicitly relied on the panel chair’s experience with her own physician in order to make the determination that the defendant’s expert was more credible regarding the practices of reasonable physicians. The Court explained that this violated the estate’s due process rights. Therefore, the court had abused its discretion by permitting highly prejudicial findings to be presented to the jury. The judgment was vacated.

If you are hurt due to medical negligence, you should consult a Maine personal injury attorney about filing a claim. It is better to consult a personal injury attorney before you file a claim so that you do not make any admissions during the claims process that could undermine your lawsuit should it be necessary to bring one. At Briggs & Wholey, our knowledgeable attorneys are available to answer any questions you may have. To schedule a free consultation with an experienced advocate, please contact Briggs & Wholey, LLC at (888) 596-1099 or through our website today.

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