Smith v. Hawthorne

ALEXANDER, J.,

with whom SILVER, J., joins, dissenting.

[¶ 31] The Court holds that the Superior Court erred in following the direction of our opinion issued little more than a year ago. To accomplish this, the Court reaches out to interpret the Maine Health Security Act, 24 M.R.S. § 2857(1)(C) (2006), to give negligent doctors a veto over whether unanimous findings may be presented to a jury. From this interpretation, I respectfully dissent.

[¶ 32] This appeal follows the third jury trial on the Smiths’ complaint for medical malpractice. In requiring a fourth jury trial on the same cause of action, the Court will be ordering an event that may be unique in Maine jurisprudence. This case demonstrates the difficult, costly, and time-consuming burdens an individual must overcome to recover for injuries caused by negligent doctors and why it is economically impossible to seek redress for any but the most severe injuries caused by medical negligence.

[¶ 33] The jury’s verdict for the Smiths of $140,000 plus interest and costs, followed our remand in Smith v. Hawthorne (Smith I), 2006 ME 19, 892 A.2d 433. Prior to the three jury trials that have already occurred, the Smiths were first required to file a notice of claim and proceed to a contested hearing before a preli-tigation screening panel. 24 M.R.S. §§ 2853(1), (5), 2903 (2006). In the panel proceeding, just as in the trials, the Smiths had the burden to prove both medical negligence and causation by a preponderance of the evidence. 24 M.R.S. § 2855(2)(A) (2006).

[¶ 34] By law, the panel was required to make findings by answering three questions:

A. Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the *1059health 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).

[1Í35] Use of unanimous panel findings is governed by 24 M.R.S. § 2857(1) (2006), 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.

[¶ 36] Paragraph C is the statute relevant to this appeal. It directs that if the answer to either of the first two questions is negative and unanimous, the plaintiff must release the claim or “be subject to the admissibility of those findings under section 2857[ (1)(C) ].”4 24 M.R.S. § 2858(2) (2006). Sections 2857 and 2858 do not specify or limit which party may seek to admit at trial a unanimous finding, if a claim proceeds to trial following a panel proceeding. The limitation that the Court imposes today, that unanimous findings pursuant to paragraph C are admissible only if the doctor consents, is found nowhere in the law. It violates the principle of fundamental fairness. And such a one-sided veto over admissibility was not suggested in Smith I.

[¶ 37] In Smith I, 2006 ME 19, ¶ 22, 892 A.2d at 439, we vacated and remanded for a third trial, with direction to the trial court that:

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.

[¶ 38] When we criticized the admission of only those unanimous findings favorable to the doctor as distorting the jury’s fact-finding role, we did not suggest that no unanimous findings should be admitted. The trial court reasonably determined that both findings were admissible and did so based upon our holding in Smith I.

[¶ 39] In Smith I, ¶¶ 23-24, 892 A.2d at 439-40, we further held that:

*1060[BJecause 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.
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.

[¶40] With direction on remand that: “[t]he 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,” the trial judge’s action admitting both findings was proper and respectful of our holding in Smith I. Nothing in Smith I suggested, even remotely, that the defendant doctor should control admissibility of the unanimous findings. The Court’s opinion rationalizing its change in direction recalls Judge Frank M. Coffin’s lament that appellate opinions sometimes have “a tendency to refine the art of distinguishing one case from another to the point where the pyramiding of exception upon exception, or distinction upon distinction, creates an awesome structure of ratiocination that is medieval in its scholasticism.”5 Judge Coffin’s concern about obscure “ratiocination” is confirmed by the four-justice majority needing three separate opinions to explain its decision.

[¶ 41] Giving the defendant doctor sole power to render the panel proceedings a nullity and prevent admission of unanimous panel findings is contrary to the legislative purpose of the Health Security Act. The Legislature’s purpose was to make panel proceedings and unanimous panel findings important by utilizing them to promote settlements, section 2858, and allowing their introduction at trial of cases that do not settle, section 2857(1)(B), (C). Section 2857(1)(C), which governs admission of split unanimous findings, does not specify that the defendant alone can decide whether or not to admit the findings. Paragraph C simply states that when a panel finding on “any question” is “unanimous and unfavorable to the claimant, the findings are admissible.”

[¶ 42] The Court reads into paragraph C language to authorize defendants to decide if split unanimous findings shall be admitted. The text of the statute, our precedents, and the goals and purposes of the Health Security Act do not support the Court’s interpretation. We must construe a statute to preserve its constitutionality in a manner that is compatible with the Legislature’s intent if such a construction is “at all possible.” Town of Baldwin v. Carter, 2002 ME 52, ¶ 9, 794 A.2d 62, 66-67. Thus, we must seek a reasonable interpretation of paragraph C that will satisfy constitutional requirements. See Irish v. *1061Gimbel, 1997 ME 50, ¶6, 691 A.2d 664, 669. The most reasonable, plain-meaning interpretation of paragraph C, that it does not discriminate as to who can move the admission of split, unanimous findings, avoids any constitutional problem.

[¶43] In Smith I, we held that “both panel findings are relevant to the jury’s deliberations.” Smith I, 2006 ME 19, ¶ 23, 892 A.2d at 439. On remand, the trial court followed our direction and admitted both unanimous findings at the third trial. The trial court acted appropriately. I would affirm the jury’s verdict and the Superior Court’s judgment.

. Title 24 M.R.S. § 2858(2) (2006), actually references paragraph B of subsection 2857(1). However, section 2857 was significantly amended by P.L.1999, ch. 523, § 4, and as a result, the appropriate reference should be to paragraph C of subsection 2857(1).

. FRANK M. COFFIN, ON APPEAL: COURTS, LAWYERING, AND JUDGING 270 (W.W. Norton & Co. 1994).