Letter from Hospital About Surgeon’s Cancer Misdiagnosis Held Admissible

A man sought treatment for abdominal pain at a medical center’s emergency room. A CAT scan revealed a large lesion on his liver. A surgeon at the medical center evaluated the CAT scan and determined that he was most likely suffering from a cancer of hepatic, biliary, or pancreatic origin.


Several days later, the man, accompanied by his wife, went to the surgeon's office for a follow-up visit. The surgeon telephoned the pathologist who was in charge of testing a tissue sample taken from the lesion. The pathologist informed the surgeon that he believed the lesion to be of hepatic or pancreatic origin and that he was sending it for additional testing. However, he also informed the surgeon that he needed more tissue to complete the assessment.


The surgeon then told the man that, although he was still waiting for the final pathology results, he believed that he may be suffering from either hepatic or pancreatic cancer. The surgeon informed the man that, if this were the case, the cancer would be inoperable due to the size and location of the lesion. The surgeon further informed him that even with chemotherapy, the average life expectancy of patients with each of these cancers was less than one year, and that his life may be measured in months.


Several weeks later, the test of the man's tissue samples revealed that he did not suffer from hepatic or pancreatic cancer, but that he had B-cell non-Hodgkin lymphoma, which has a five-year survival rate of eighty-five to ninety percent. The man sent a complaint about the surgeon to the medical center’s president.


The president and his staff followed the medical center's procedure for investigating complaints, and once that review was completed the president signed a letter to the man addressing the complaint about the surgeon.


The man sued the medical center seeking damages for emotional distress, lost income, and loss of enjoyment of life. The medical center moved in limine to exclude from evidence the president's letter, arguing that the entire letter was an expression of sympathy or benevolence, which must be excluded pursuant to 24 M.R.S. § 2907(2) (the apology statute). The medical center also argued that the letter was inadmissible pursuant to M.R. Evid. 408(a) because it constituted an offer to compromise, and that it should be excluded pursuant to M.R. Evid. 403. The Androscoggin County Superior Court admitted in evidence a redacted version of the letter. The body of the redacted version of the letter read, in its entirety: “That being said, he [the surgeon] realizes now that prior to sharing his clinical impressions with you, he needed to wait for the results of the biopsy to confirm what the cancer was.”


Following the trial, the jury returned a $200,000 verdict in the man's favor. The court entered judgment on the verdict, and the medical center appealed.


The Supreme Judicial Court of Maine affirmed. The court held that the letter was admissible pursuant to the apology statute and the letter was not inadmissible due to the rule that excluded evidence of offers and compromises.


The letter was admissible pursuant to the apology statute. The apology statute made statements expressing apology made by a health care practitioner, provider, or employee to a victim or victim's relative relating to the patient's discomfort, pain, suffering, or injury inadmissible in civil actions for professional malpractice. However, the statute explicitly stated that nothing prohibited the admissibility of a statement of fault. Nothing in the language of the statute suggested that statements of fault were inadmissible if they were accompanied by expressions of apology or benevolence. The court committed no error by admitting the portion of the letter that contained an admission of fault.


The letter was not inadmissible due to the rules from M.R. Evid. 408(a) and 403 that excluded evidence of offers and compromises. Neither an offer to compromise nor compromise negotiations may take place in the absence of a dispute. Where there was no evidence that a dispute existed about the validity of a claim or the amount claimed at the time of the admission, the trial court may properly admit the statement in evidence. Although the letter contained a sentence in which the medical center offered to write off outstanding balances related to the care provided, the president sent the letter to the man over a year before the man filed his notice of claim against the medical center. Because there was no evidence of any disputed claim in existence at the time of the admission, the court properly concluded that the statements contained in the letter were not made as part of a settlement negotiation or mediation.


The Supreme Judicial Court of Maine affirmed the trial court’s judgment in favor of the patient.


See: Strout v. Central Maine Medical Center, 2014 WL 2579624, 2014 ME 77 (Me., June 10, 2014) (not designated for publication).


See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis