Smith v. Hawthorne , 924 A.2d 1051 ( 2007 )

Majority: SAUFLEY, C.J., and CLIFFORD, CALKINS, and LEVY, JJ.

Concurrence: SAUFLEY, C.J., and CLIFFORD, J.

Concurrence: LEVY, J.

Dissent: ALEXANDER and SILVER, JJ.

CALKINS, J.

[¶ 1] Catherine Hawthorne, M.D., appeals from a judgment entered in the Superior Court (Hancock County, Mead, J.) in favor of James Edward and Sheryl Smith, following a jury trial on the Smiths’ complaint for professional negligence. Hawthorne contends that the court erred in admitting into evidence the findings of the prelitigation screening panel that (1) Hawthorne deviated from the applicable standard of medical care in treating James Smith; and (2) the acts or omissions by Hawthorne did not cause Smith’s injury. We vacate the judgment.

I. BACKGROUND

[¶ 2] This proceeding began, as medical malpractice cases generally must begin, with a notice of claim and a prelitigation screening panel. See 24 M.R.S. §§ 2851-2859 (2006). The panel unanimously found that (1) Hawthorne deviated from the applicable standard of medical care in treating James Smith; (2) the deviation did not proximately cause Smith’s injury; and (3) Smith’s negligence was not greater than or equal to Hawthorne’s. With regard to its first finding, the panel specifically found that Hawthorne had deviated from the standard of care regarding only one of four allegations in the notice of claim. The allegation on which the panel unanimously found that Hawthorne had deviated from the standard of care stated:

The wound at the fracture site was leaking from a sore at three months. Dr. Hawthorne failed to have a culture taken, a sedimentation rate done, or antibiotics administered. This open wound continued through December of 1997 and, at that time, there was a high index of suspicion of infection reflected in the x-rays. Despite all of these indications, Dr. Hawthorne did not adequately treat this patient for suspected osteomyelitis at that time.

[¶ 3] There have been three jury trials in this matter. The first ended in a mistrial. The second resulted in a verdict for Hawthorne and led to our opinion in Smith v. Hawthorne (Smith I), 2006 ME 19, 892 A.2d 433. In Smith I, we vacated the judgment because the court had admitted into evidence only the second finding of the panel, that is, the finding that Hawthorne’s “acts or omissions complained of by the Smiths were not the legal cause of the injuries that [Smith] has alleged.” Smith I, 2006 ME 19, ¶¶ 6, 25, 892 A.2d at 435, 439-40. In Smith I, a majority of the Court held that when a court admits the causation finding, it is required to admit the negligence finding as well. Id. ¶ 25, 892 A.2d at 439-40. That majority split on the rationale, with two justices determining that the constitutional right to a jury trial requires both findings to be admitted if any finding is admitted, id. ¶ 22, 892 A.2d at 439; and two justices concurring, but preferring to interpret 24 M.R.S. § 2857(1) to require all unanimous findings to be submitted to the jury, id. ¶ 34, 892 A.2d at 441 (Alexander, J., concurring).

[¶4] On remand, Smith requested that both the negligence and causation findings be presented to the jury. Hawthorne objected and requested that no findings be given to the jury. The trial court granted Smith’s request.

[¶ 5] At the beginning of the trial, the court allowed Smith’s counsel to make the following statement to the jury:

The Pre-litigation Screening Panel unanimously found that the wound at the fracture site was leaking from a sore at three months. Dr. Hawthorne failed to have a culture taken, a sedimentation rate done or antibiotics administered. This open wound continued through December of 1997, and, at that time, there was a high index of suspicion of infection reflected in the x-rays. Despite all these indications, Dr. Hawthorne did not adequately treat this patient for suspected osteomyelitis at that time.

The panel also found that the acts or omissions complained of did not proximately cause the injury complained of or as found by the panel or as agreed by the parties.

[¶ 6] The court thereafter addressed the jury with a brief explanation of the preliti-gation process, as we required in Irish v. Gimbel, 1997 ME 50, ¶ 12, 691 A.2d 664, 671, including naming the panel members, cautioning the jury that it was not bound by the panel’s findings, and explaining that the evidence the panel heard may or may not be the same evidence that the jury would be hearing.

[¶ 7] The jury eventually reached a verdict for the Smiths in the amount of $140,000 plus interest and costs.

II. DISCUSSION

[¶8] The sole issue on appeal is whether the court erred in admitting the panel’s findings over Hawthorne’s objection. Hawthorne recognizes that Smith I requires both findings to be presented when the unanimous panel findings are favorable to the claimant on negligence, but favorable to the medical practitioner on causation, and the medical practitioner wants the jury to hear about the causation finding. Hawthorne contends, however, that because she prevailed on the causation finding, she is entitled to determine whether both findings are admitted into evidence or whether neither finding is admitted. The Smiths argue that both Smith I and the Health Security Act require that both findings be admitted.

[¶ 9] We will not here repeat the statutory scheme and case law described in Smith I. It is sufficient to state that neither Smith I nor any of our other cases have held that a constitutional right to a jury trial requires that all findings of the prelitigation screening panel be admitted into evidence. We have never held that the constitutional right to a jury trial requires that the jury be made aware of the prelitigation screening process. Smith’s constitutional rights would not be violated if no evidence was allowed about the panel and its findings.

[¶ 10] We do not find that any provision of the Health Security Act requires that all of the panel’s findings be presented to the jury when the unanimous panel is split between negligence and causation and the practitioner objects. Smith contends that in Smith I, the Court interpreted section 2857(1)(C), and particularly the word “findings,” to require all unanimous findings to be submitted to the jury. See Smith I, 2006 ME 19, ¶ 34, 892 A.2d at 441. However, five members of the Court disagreed with that interpretation. Therefore, the statutory interpretation relied upon by Smith in this case was rejected by a majority of the Court in Smith I. In Smith I, because Hawthorne had sought to admit the causation finding, we had no occasion to opine on what would happen if a claimant offered the findings and the practitioner objected. Our holding was limited to a conclusion that if one finding is admitted, both must be admitted so that the jury’s fact-finding role will not be distorted. See id. ¶22, 892 A.2d at 439.

[¶ 11] The Health Security Act does not mandate that the negligence and causation findings be admitted when the findings are split and the practitioner objects. The Act, in fact, gives the defendant practitioner the choice as to whether the panel’s findings will be admitted when one of the questions is answered favorably to the defendant. It provides; “If the unanimous findings of the panel as to either [negligence or causation] are in the negative, the claimant must release the claim ... or be subject to the admissibility of those findings .... ” 24 M.R.S. § 2858(2).¹ Section 2858(2), with its “subject to” phrase, means that it is the defendant practitioner who chooses whether to make the claimant “subject to” the findings. If the defendant chooses not to make the claimant subject to the findings, then the findings are not admissible. Here, Hawthorne opted to not subject Smith to the panel’s findings, and therefore, the findings were not admissible.

[¶ 12] The rationale behind the establishment of the prelitigation screening panel supports this interpretation of section 2858. The purpose is “[t]o identify claims of professional negligence which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit; and ... to encourage early withdrawal or dismissal of nonmeri-torious claims.” 24 M.R.S. § 2851(1). The statutory scheme encourages the dismissal of nonmeritorious claims by making the plaintiff “subject to” the admissibility of the findings against the plaintiff.

[¶ 13] In summary, we conclude that neither the constitutional right to a jury trial nor the Health Security Act require the admission of the panel’s findings when the panel has decided negligence in favor of the claimant but causation in favor of the practitioner defendant and when the defendant objects to the admission of the findings.

The entry is:

Judgment vacated. Remanded for further proceedings consistent with this opinion.

1 . Title 24 M.R.S. § 2858 (2006), in its entirety, reads:

§ 2858. Effect of findings by panel

A unanimous finding by the panel of any claim under this subchapter shall be implemented as follows.

1. Payment of claim; determination of damages. If the unanimous findings of the panel as to section 2855, subsections 1 and 2 are in the affirmative, the person accused of professional negligence must promptly enter into negotiations to pay the claim or admit liability. If liability is admitted, the claim may be submitted to the panel, upon agreement of the claimant and person accused, for determination of damages. If suit is brought to enforce the claim, the findings of the panel are admissible as provided in section 2857.

2. Release of claim without payment. If the unanimous findings of the panel as to either section 2855, subsection 1 or 2, are in the negative, the claimant must release the claim or claims based on the findings without payment or be subject to the admissibility of those findings under section 2857, subsection 1, paragraph B.

It refers to 24 M.R.S. § 2855 (2006), which reads:

§ 2855. Findings by panel

1. Negligence and causation. At the conclusion of the presentations, the panel shall make its findings in writing within 30 days by answering the following questions:

A. Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care;

B. Whether the acts or omissions complained of proximately caused the injury complained of; and

C. If negligence on the part of the health care practitioner or health care provider is found, 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.

2. Standard of proof. The standard of proof used by the panel shall be:

A. The plaintiff must prove negligence and proximate causation by a preponderance of the evidence; and

B. The defendant must prove comparative negligence by a preponderance of the evidence.