At his initial visit with a new doctor, a man underwent a cholesterol test, which revealed that his cholesterol level was moderately elevated. The doctor told the man that his elevated levels may be a risk factor for developing cardiovascular disease. The doctor decided that the proper course of action would be to follow up, as needed, with another exam in the next two years. Over the next eight years, the doctor saw the man intermittently. During that time, the doctor did not order retesting of the man's cholesterol.
Eight years after the initial visit, the doctor ordered tests of his cholesterol levels. The tests revealed that his cholesterol levels had risen. The doctor sent the man a letter informing him of the results and providing information about corrections he could make to his diet. Although the doctor made a notation to recheck his cholesterol levels in six to twelve months, the man was not scheduled for retesting within that time.
Three years after the second cholesterol test, another test revealed the man's cholesterol levels were showing improvement, but were still high. The doctor recommended that he continue to follow his dietary recommendations and planned to recheck his cholesterol levels in three to six months. However, the man was never scheduled for testing within that time.
Two years later, the man went to the doctor for an unrelated reason. Despite his history of elevated cholesterol levels and the nearly two years that had passed since his last visit, the doctor did not order retesting at that time.
About thirteen years after the doctor first noted his moderately elevated cholesterol, at age forty-eight, the man suffered a fatal heart attack. At the time of his death, one of his major coronary arteries was 90–95% blocked, leading the medical examiner to conclude that he died as a result of severe multifocal coronary atherosclerosis, a blockage in the arteries of his heart due to cholesterol buildup.
In accordance with the Maine Health Security Act (MHSA), 24 M.R.S. § 2854(1) (2013), the man's wife, as personal representative of the estate, filed a notice of claim against the doctor asserting claims for professional negligence and wrongful death. The estate also asserted claims against the doctor's employer alleging that it was vicariously liable for the doctor's negligent treatment.
As required by the MHSA, the estate first presented its claim to the medical malpractice prelitigation screening panel. After a hearing, the screening panel decided unanimously for the doctor, finding that he had not breached the standard of care and that his actions were not the legal cause of the man's death. In an email notifying the parties of the outcome, the panel chair stated that, “For what it is worth my family physician has never scheduled a follow-up visit for me but, rather, asks me to do it myself. Furthermore, her practice does not schedule more than six months in advance so I have to remember to call every year for my annual exam. THUS, [I] found [the doctor's expert's] testimony more credible regarding the practices of reasonable physicians.”
The estate then filed its complaint in the Cumberland County Superior Court, asserting claims of professional negligence and wrongful death. Because the panel's findings were unanimous and unfavorable to the estate, under Maine law the findings were admissible in the subsequent professional negligence action. Before trial, the estate filed a motion in limine, seeking to exclude the screening panel's findings because they were inconsistent with the evidence presented and based on information outside the record. The trial court denied the estate's motion, concluding that the doctor could introduce the findings of the screening panel. The jury found the doctor was negligent, but not the legal cause of the man’s death. The superior court entered a judgment in favor of the doctor and his employer.
The Supreme Judicial Court of Maine vacated and remanded. The court held that the findings of the medical malpractice prelitigation screening panel were not inadmissible on the basis they were inconsistent with other evidence presented at trial. However, in the face of a clear violation of the statutory and procedural rules governing the consideration of evidence by the panel's chairperson, the trial court abused its discretion by allowing the highly prejudicial findings of the panel to be admitted into evidence and presented to the jury.
The trial court did not err in declining to review the evidence presented to determine if the panel's findings were erroneous. The trial court could not determine whether the panel's findings were inconsistent with the evidence because the MHSA requires that the proceedings and evidence before the panel remain confidential. The findings, because they were unanimous and unfavorable to the patient's estate, were admissible.
However, the screening panel, specifically the chairperson, exceeded its authority when it based its findings on evidence that was not presented during the panel hearing. The MHSA requires medical malpractice screening panel members to base their findings solely upon the evidence as presented at the hearing, the records and any expert opinions provided by or sought by the panel or the parties. Due process requires that medical malpractice screening panels proceed exclusively upon matters in evidence, because absent such a restriction, parties would have no opportunity to cross-examine or to explain adverse evidence. The court found that it was clear from the panel chair's email that she considered evidence that was never presented during the hearing. More significantly she emphasized the importance that this outside information played in her decision. Her decision was not based solely on the evidence presented, but was determined by comparing the doctor's treatment of the man to her experiences with her own family doctor. Considering evidence outside the record clearly violated the MHSA and Maine's procedural rules, see M.R. Civ. P. 80M(g)(9), as well as implicated the estate’s due process rights.
The MHSA's statutory scheme does not provide aggrieved parties the opportunity to directly challenge the medical malpractice prelitigation screening panel's findings. Rather, the proper procedure is to challenge the admissibility of the panel's findings during the subsequent medical malpractice action. Although the MHSA designated the panel proceedings as confidential, the statute did not preclude appropriate judicial consideration in determining whether the panel's findings comply with the MHSA’s terms. Here, in the face of a clear violation of statutory and procedural rules, the court abused its discretion by allowing the findings of the screening panel to be admitted in evidence.
The Supreme Judicial Court of Maine vacated and remanded because the medical malpractice prelitigation screening panel chair’s consideration of evidence outside the record violated the MHSA and Maine's procedural rules. Thus, the trial court erred in admitting the screening panel's findings.
See: Estate of Nickerson v. Carter, 2014 WL 537055, 2014 ME 19 (Me., February 11, 2014) (not designated for publication).
See also Medical Risk Law, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues