Smith v. Hawthorne , 892 A.2d 433 ( 2006 )

Majority: DANA, ALEXANDER, CALKINS, and SILVER, JJ.

Concurrence: DANA, and ALEXANDER, JJ.

Dissent: SAUFLEY, C.J., and CLIFFORD, and LEVY, JJ.

CALKINS, J.

[¶ 1] James and Sheryl Smith appeal from a judgment entered in the Superior Court (Hancock County, Hjelm, J.) in favor of Catherine Hawthorne, M.D., following a jury trial on the Smiths’ complaint for medical malpractice. Prior to the trial, a prelitigation screening panel had unanimously determined that (1) Hawthorne deviated from the applicable standard of medical care; (2) the deviation did not cause James Smith’s injury; and (3) Smith’s negligence was not equal to or greater than Hawthorne’s negligence. Pursuant to 24 M.R.S. § 2857(1) (2005), the court allowed in evidence the panel’s finding favorable to Hawthorne, but refused to allow in evidence the panel’s findings favorable to Smith. The Smiths contend that section 2857 is unconstitutional because it violates their right to a jury trial guaranteed by article I, section 20 of the Maine Constitution. We agree that subsections 2857(1)(B) and (C), as applied in this case, are unconstitutional and vacate the judgment.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2] Hawthorne treated James Smith for an open fracture of his left ankle, but the fracture did not heal correctly. The Smiths filed a notice of claim against Hawthorne. They alleged that Hawthorne deviated from the appropriate standard of medical care in allowing Smith’s infection to go untreated and that this failure to treat Smith required him to undergo several additional operations, to miss work, and to suffer other long-term or permanent impairments. The notice of claim had the effect of initiating the prelitigation screening panel process, which is set forth in 24 M.R.S. §§ 2851-2859 (2005).

[¶ 3] The prelitigation screening panel, composed of three members, held a hearing, 24 M.R.S. § 2854 (2005), and issued findings, id. § 2855(1). The findings were stated in a “Malpractice Decree,” consisting of three questions and answers. The first question was: “Whether the acts or omissions complained of, or found by the panel to exist, or as agreed by the parties, constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care regarding 7(c) as alleged in the Notice of Claim.” The panel members unanimously answered this question, “Yes.” The referenced paragraph 7(c) in the notice of claim is one of four allegations of negligence in the notice. It 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.

The screening panel placed a footnote at the end of the first question, which stated: “The panel finds no negligence on the remaining issues.”

[¶ 4] The second question was: “Whether the acts or omissions complained of proximately caused the injury complained of, or as found by the Panel, or as agreed by the parties.” The panel unanimously answered this question, “No.” The third question was: “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.” The panel unanimously answered this question, “No.”

[¶ 5] Thereafter, the Smiths filed a medical malpractice complaint against Hawthorne in the Superior Court. Prior to trial, the Smiths moved to admit the entire findings of the prelitigation screening panel. They asserted that section 2857 is unconstitutional insofar as it allows only the finding on the second question to be presented to the jury. The court (Jabar; J.) denied the Smiths’ motion to admit all of the panel’s findings and ruled that section 2857 is constitutional.

[¶ 6] The first jury trial {Mead, J.) ended in a mistrial because the jury could not reach a verdict. In the second trial, the court told the jury that as a preliminary procedural step the case had gone to a medical malpractice screening panel that reviewed the Smiths’ claim. The court further told the jury the names of the panel members, that the panel had conducted a summary hearing, and that it was not bound by the rules of evidence. Additionally, the court explained that the panel hearing was not a substitute for a full trial, that the same evidence that the jury heard may or may not have been presented to the panel, and that the jury was not bound by the panel findings. The court stated that the jury was to reach its own conclusions based upon all of the evidence. Finally, the court commented that the panel proceedings were confidential, which prevented the parties from introducing panel documents or presenting witnesses to testify about the panel. This commentary by the court was consistent with our recommendation in Irish v. Gimbel, 1997 ME 50, ¶ 12, 691 A.2d 664, 671. The court then said that Hawthorne’s attorney would present the finding of the panel. The attorney stated to the jury: “The panel in this case unanimously concluded that the acts or omissions complained of by the Smiths were not the legal cause of the injuries that he has alleged.” The jury issued a verdict in favor of Hawthorne. The Smiths then brought this appeal.

II. THE STATUTORY SCHEME AND CASELAW

[¶ 7] Absent an agreement by all parties to bypass the prelitigation screening panel proceedings, before a plaintiff is permitted to file a medical malpractice action in a Maine court, the plaintiff must proceed before a prelitigation screening panel. 24 M.R.S. §§ 2853(5), 2903 (2005); see also Powers v. Planned Parenthood, 677 A.2d 534, 537-38 (Me.1996). The purpose of the panel process 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 ... [t]o identify claims of professional negligence and to encourage early withdrawal or dismissal of nonmeritorious claims.” 24 M.R.S. § 2851(1) (2005); Sullivan v. Johnson, 628 A.2d 653, 656 (Me.1993).

[¶ 8] When a medical malpractice claimant has filed a notice of claim, the Chief Justice of the Superior Court appoints a chair of the panel, who, in turn, chooses the other members of the panel, of whom one must be an attorney and another must be a health care practitioner.² 24 M.R.S. § 2852 (2005). As in this case, the parties often proceed to discovery. A hearing is held at which the parties make presentations, and the rules of evidence do not apply. Id. § 2854(1). The burden is on the claimant to prove negligence and proximate causation by a preponderance of the evidence. Id. § 2855(2)(A). The panel chair is required to attempt mediation of the dispute, id. § 2854(2), but if that is unsuccessful, the panel makes findings by answering three 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.

Id. § 2855(1).

[¶ 9] Use of unanimous panel findings is governed by 24 M.R.S. § 2857(1), which provides in pertinent part:

B. If the panel findings as to both the questions under section 2855, subsection 1, paragraphs A and B are unanimous and unfavorable to the person accused of professional negligence, the findings are admissible in any subsequent court action for professional negligence against that person by the claimant based on the same set of facts upon which the notice of claim was filed.

C. If the panel findings as to any question under section 2855 are unanimous and unfavorable to the claimant, the findings are admissible in any subsequent court action for professional negligence against the person accused of professional negligence by the claimant based on the same set of facts upon which the notice of claim was filed.

[¶ 10] If the answers to both the negligence and proximate cause questions are affirmative and unanimous, the defendant must enter into negotiations, and if the answers to either of those two questions are negative, the plaintiff must release the claim or “be subject to the admissibility of those findings under section 2847[ (1)(B) ].” Id. § 2858 (2005).

[¶ 11] If the plaintiff proceeds with a court action for medical malpractice after the panel has made its findings, the matter proceeds in the same fashion as other civil actions. At trial, however, there are limitations as to what may be said about the panel process because of the confidentiality requirement. Id. § 2857. All deliberations of the panel are confidential and privileged, as is the testimony of any expert before the panel. Id. § 2857(2). There are only three exceptions to the confidentiality requirement, and one is the provision that the findings of the panel, if unanimous, are admissible under the circumstances discussed above.³

[¶ 12] The confidentiality provisions of the statutory scheme have led to several opinions by this Court. All concerned a previous version of section 2857(1) that provided that when the findings were admissible they had to be presented “without explanation.” 24 M.R.S.A. § 2857(1) (1990).⁴ In the first opinion we said that section 2857 meant that there could be no explanations of the panel deliberations or proceedings, but that a court should “make a preliminary comment ... that clarifies that the panel process is merely a preliminary procedural step.” Sullivan, 628 A.2d at 656.

[¶ 18] In the next case the plaintiff challenged the constitutionality of the “without explanation” portion of section 2857 as violating the Maine constitutional provision guaranteeing a right to a jury trial. Irish, 1997 ME 50, ¶ 7, 691 A.2d at 669 (Irish I). We held that the “without explanation” requirement in section 2857 “withholds information that is essential to the jury’s fact-finding role.” Id. ¶ 11, 691 A.2d at 670. We stated that withholding information from the jury regarding the context of the panel proceedings “in the face of the highly prejudicial findings invited unprincipled evaluation and can only result in juror confusion.” Id. We concluded that certain neutral information about the panel process was constitutionally required, and we interpreted the statute “to permit the disclosure of information about the prelitigation screening process sufficient to provide a rational basis for evaluation of the findings and to ensure the jury’s role as the final arbiter of the facts.” Id. ¶ 13, 691 A.2d at 671.

[¶ 14] The plaintiffs in Irish I also claimed that their right to a jury trial was violated by the admission of the panel findings without their having the opportunity to impeach those findings by examining panel members or otherwise attacking the panel findings. Id. ¶7, 691 A.2d at 669. We rejected that contention. Id. ¶ 12, 691 A.2d at 671. We said that “[t]he constitutional deficiency lies in the lack of relevant neutral information, not the restriction on skillful advocacy.” Id.

[¶ 15] The Irish case was retried in the Superior Court, and the plaintiffs again appealed, specifically challenging the admission of the unanimous adverse panel findings as unconstitutionally interfering with their right to a jury trial. Irish v. Gimbel, 2000 ME 2, ¶ 2, 743 A.2d 736, 737 (Irish II). However, we said that the issue had already been raised and decided in Irish I, and we declined to address it further. Id. ¶ 5, 743 A.2d at 737.⁵

[¶ 16] While Irish II was pending, section 2857 was amended to delete the “without explanation” requirement. Id. ¶ 6 n. 1, 743 A.2d at 737; P.L.1999, ch. 523, § 4 (effective Sept. 18, 1999) (codified at 24 M.R.S. § 2857 (2005)). No other substantive amendments have been made to the statute since the Irish opinions.

III. DISCUSSION

[¶ 17] The Smiths contend that section 2857 violates their constitutional right to a jury trial.⁶ Specifically, they argue that because the court’s application of section 2857(1)(B) and (C) resulted in giving the jury part, but not all, of the panel’s findings, the jury was misled and its role as fact-finder was usurped.

[¶ 18] We review de novo the claim that section 2857 is unconstitutional. See Guardianship of K-M, 2005 ME 8, ¶ 17, 866 A.2d 106, 112. A statute is presumed constitutional, and a party challenging the constitutionality of a statute must show convincingly that the statute conflicts with the Constitution. Irish I, 1997 ME 50, ¶ 6, 691 A.2d at 669.

[¶ 19] The precise challenge by the Smiths to the constitutionality of section 2857 was not present in Irish I, There the panel had reached a unanimous finding against the plaintiffs on the question of negligence. Id. ¶ 2, 691 A.2d at 668. Irish I did not include the circumstance of a panel finding of negligence coupled with a finding of no causation. See id. ¶ 2 n. 3, 691 A.2d at 668. Thus, we were not presented in Irish I with the argument that admissibility of part, but not all, of the panel’s findings was constitutionally impermissible.

[¶ 20] In Irish I, we held that the confidentiality provision of section 2857 violated the plaintiffs’ constitutional right to a jury trial because it, as applied by the trial court, withheld “information that [was] essential to the jury’s fact-finding role.” Id. ¶ 11, 691 A.2d at 670. The right to a jury trial is defined as “the right ‘to have a determination made by the jury’ on material questions of fact.” Id. ¶ 8, 691 A.2d at 669 (quoting Peters v. Saft, 597 A.2d 50, 58 (Me.1991)). We determined that the jury was “deprived of any and all information of the context in which the panel operates.” Id. ¶ 11, 691 A.2d at 670. We concluded that the lack of information combined with the “highly prejudicial findings” not only allowed but “invited” an evaluation by the jurors lacking in principle. Id. We said that juror confusion would be the result. Id. We interpreted the statute to permit the trial court to provide preliminary comments and final instructions that would provide the jury with a basis “to understand the nature of the panel findings ahd to put the findings in context in evaluating all of the evidence presented at the trial.” Id. ¶ 12, 691 A.2d at 671. As so interpreted, we determined that the confidentiality provision was “consistent with the constitutional right of a trial by a jury.” Id. ¶ 13, 691 A.2d at 671.

[¶ 21] In Irish I, we noted .that the majority of courts considering the admission of panel findings have upheld preliti-gation screening statutes against challenges that they violate the right to a jury trial. Id. ¶ 10, 691 A.2d at 670. However, no cases from other jurisdictions have been called to our attention that address the precise issue presented in this case. That is likely because, so far as we have been able to discern, no other state permits a similar asymmetrical admission of panel findings.⁷ Unlike Maine, states with screening panels either forbid the admission of panel findings in a subsequent trial or require that all findings be admitted. See, e.g., MONT. CODE ANN. § 27-6-704(2) (2005) (declaring that the decision, reasoning, and basis for the panel’s decision are not admissible); NEB. REV. STAT. § 44-2843 (2005) (stating that the report of the panel is admissible); see also Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657, 668 (1977) (also stating that the panel’s report and any minority report are admissible).

[¶ 22] We conclude that the asymmetrical admission of panel findings violated the Smiths’ constitutional right to a jury trial for the same reasons that giving the panel findings to the jury “without explanation” violated the Irishes’ constitutional right to a jury trial. When there are findings favorable to both parties, the admission of only those findings favorable to one party distorts the jury’s fact-finding role. The findings in favor of Smith, like the findings ■in favor of Hawthorne, were highly probative and relevant to the jury’s determination of material questions of fact. The partial admission reduced the strength and persuasiveness of the Smiths’ case to the jury and, at the same time, strengthened Hawthorne’s case, thereby significantly infringing upon the Smiths’ right to have facts determined by a jury.⁸

[¶23] Hawthorne argues that because she is not liable in a malpractice action unless both negligence and causation are proved, it makes sense to withhold the unfavorable finding on negligence unless there is also an unfavorable finding on causation. However, precisely because both negligence and causation have to be found by a jury for there to be liability, both panel findings are relevant to the jury’s deliberations. Furthermore, both findings provide the jury with a basis “to understand the nature of the panel findings and to put the findings in context in evaluating all of the evidence presented at the trial.” Irish I, 1997 ME 50, ¶ 12, 691 A.2d at 671.

[¶ 24] The jury was told only that the panel found that any acts or omissions by Hawthorne did not cause harm to Smith. Because of this, the jury could have been misled into believing that the panel found that Hawthorne was not negligent even though the panel unanimously found that she was. The partial admission of the panel’s findings here, like the admission of the panel’s findings without explanation in Irish I, invited unprincipled juror evaluation of the evidence that could only result in juror confusion. The panel’s finding that Hawthorne was negligent was necessary to put into context its finding that Hawthorne’s acts were not the proximate cause of Smith’s injuries.

[¶ 25] We conclude that application of subsections 2857(1)(B) and (C) by the Superior Court, which denied the plaintiffs’ request to admit the panel’s findings on negligence and comparative negligence and allowed in evidence only the panel’s findings on causation, was unconstitutional and denied the Smiths their right to a jury trial under the Maine Constitution.

The entry is:

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

1 . Because we agree with the Smiths that 24 M.R.S. § 2857(1) (2005) operated to violate their right to a jury trial as guaranteed by the Maine Constitution, we do not reach their additional claims that the statute violates the Equal Protection and Due Process Clauses of the United States and Maine Constitutions. U.S. CONST. amend. XIV, § 1, ME. CONST. art. I, § 6 A.

2 . Title 24 M.R.S. § 2852(2)(A), (3) (2005) authorizes either party to challenge the appointment of the chair and panel members.

3 . The other two exceptions are found in 24 M.R.S. § 2857(1)(A)(1) and (2). Testimony or writings under oath may be used for impeachment, and a party who presented the evidence may agree to its use.

4 . The previous version of section 2857 provided that if the prelitigation screening panel findings are "[a]s to either question under section 2855 [negligence or causation], unanimous and unfavorable to the claimant, the findings, without explanation, shall be admissible in any subsequent court action for professional negligence against the person accused of professional negligence by the claimant based on the same set of facts upon which the notice of claim was filed.” 24 M.R.S.A. § 2857(1)(B) (1990) (emphasis added). However, 24 M.R.S.A. § 2857 was amended by P.L.1999, ch. 523, § 4 (effective Sept. 18, 1999) (codified at 24 M.R.S. § 2857 (2005)), and the "without explanation” restriction from the original law was removed.

5 . Between the two Irish cases we also decided Mason v. Torrey, 1998 ME 159, 714 A.2d 790. There we held that the court’s failure to give the nehtral information to the jury required by Irish I was not obvious error when the plaintiff had not objected to the court’s preliminary comments or final instructions. Id. ¶¶ 5, 7, 714 A.2d at 791-92.

6 . Contrary to Hawthorne’s contentions, the Smiths have standing to challenge the constitutionality of 24 M.R.S. § 2857. See City of Auburn v. Mandarelli, 320 A.2d 22, 26 (Me.1974).

7 . For a summary of state medical malpractice laws, see Nat'l Conference of State Legislatures, State Med. Malpractice Tort Laws, Section Two, at http://www.ncsl.org/stand-commlsclawlstatelaws2.htm (Oct. 21, 2005) (copy on file with the Clerk of the Law Court).

8 . The partial admission also disregards the rule of completeness embodied in our eviden-tiary rules. See M.R. Evid. 106 ("When a writing or recorded statement or part thereof is utilized in court by a parly, ... [t]he court on motion of the adverse party may require the introduction at that time of the writing or recorded statement or any part thereof or any other writing or recorded statement which ought in fairness to be then considered.”); see also M.R. Civ. P. 32(a)(4); State v. Ryder, 348 A.2d 1, 4 (Me.1975) (noting the widely recognized rule of evidence that "when part of an oral statement has been introduced by one party, the party-opponent may introduce the remainder of the statement, even though it is favorable to, or exculpatory as to, the party-opponent”). Additionally, witnesses are sworn to tell the truth, the whole truth, and nothing but the truth. We do not suggest that the evidentiary rule of completeness is required constitutionally, but the existence of the rule demonstrates the high regard the law holds for providing complete facts to the fact-finder.