Screening Panel Required To Evaluate Non-Party Physician’s Negligence Prior To Trial Against Hospital When Physician Acted As Apparent Agent of Hospital

While recovering from surgery, a hospital patient developed a bedsore. The doctor on call for the surgeon who performed the surgery was responsible the patient’s care while the surgeon was away. The surgeon and the on-call doctor were partners in an independent, private medical practice with privileges to treat patients at the hospital. They were not employees of the hospital. When the surgeon returned to the hospital two days later, he was surprised that the patient had developed a bedsore. The bedsore worsened over time, eventually requiring specialized treatment and over four months to heal.


To comply with a Maine law requiring that a prelitigation screening panel evaluate a physician's alleged professional negligence before consideration at trial, the plaintiffs filed a notice of claim. The notice of claim named the hospital and its agents and employees as parties based primarily on the conduct of the nurses who treated the plaintiff patient. The notice of claim also named the surgeon who performed the surgery. The notice did not name the on-call doctor or assert that she had engaged in professional negligence that was a proximate cause of the patient’s injuries. The claim proceeded through the prelitigation screening panel hearing process during which the on-call doctor's actions were not made an issue and she was not called as a witness.


The patient and his wife sued the hospital. The plaintiffs put forth a theory of liability against the hospital based on the apparent agency of the on-call doctor. The defendant hospital objected. The court reserved a ruling on the issue of the on-call doctor’s alleged apparent agency until the close of testimony. Delaying this decision allowed the on-call doctor’s alleged professional negligence to be presented to the jury.


After a jury trial, the trial court entered a judgment in favor of the plaintiffs. The defendant hospital appealed arguing that the trial court erred in allowing the jury to find the hospital liable for the acts or omissions of the on-call doctor, a nonemployee physician practicing in the hospital, whose alleged professional negligence was not evaluated by the prelitigation screening panel prior to trial.


The Supreme Judicial Court of Maine reasoned that Maine law requires that a prelitigation screening panel evaluate a physician's alleged professional negligence before consideration at trial, regardless of the physician’s employment status. No prelitigation screening panel evaluated the on-call doctor’s alleged professional negligence in this case. Therefore, the court vacated the judgment and remanded.


See: Levesque v. Central Maine Medical Center, 2012 ME 109, 2012 WL 3570369 (Me., August 21, 2012) (not designated for publication).