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The Whole Truth: Maine’s Continuing Negligent Treatment Doctrine

Calendar,morguefile,dave.jpgIf you are hurt by a doctor’s negligent care, shouldn’t you have the right to tell a jury about all the years that the doctor was careless? And if you are called to sit on a jury in the Maine, don’t you want to hear as much of the truth as possible under the law so that you can make the right decision based on all the facts?

Every Maine trial lawyer knows how tough it is to try to prove medical malpractice in Maine- with its strict rules about sealed filings of a notice of claim and confidential panel hearings with a brethren Maine doctor sitting in judgment of his colleague–almost always insured by the same medical malpractice insurance company as the doctor being judged. But at least now, under the continuing negligent treatment doctrine, a patient can bring a lawsuit for continuing negligent treatment that arises from two or more related negligent acts where each negligent act can be proved to have caused harm and as long as at least one of the negligent acts occurred within three years of the notice of claim. The patient still has to go through the confidential process, but in the end, hopefully, the patient can bring the truth out into the open.

In other words, when a case alleging a doctor was careless with a patient for a long number of years, a Maine jury can hear about what the doctor did or didn’t do for the patient for all the years of care as long as the years of carelessness is the combined cause of harm.

This issue came up in a cancer case called Baker versus Farrand.

Mr. Baker had prostate cancer. He sued his doctor, Dr. Farrand. Before Mr. Baker’s case, Maine doctors thought that if they made a medical mistake, and three years elapsed, they couldn’t be held responsible for the injury caused by their mistake. That was Dr. Farrand’s position after Mr. Baker sued Dr. Farrand on the theory that Dr. Farrand failed to send Mr. Baker to a specialist even though Mr. Baker had an abnormally high prostate cancer test in 2002, 2003, 2004 and 2005. So, when Mr. Baker sued Dr. Farrand in 2007, Dr. Farrand asked the medical malpractice screening panel to strike down any claims of negligence having to do with the cancer tests of 2002 and 2003. In other words, Dr. Farrand wanted to make sure that when the case went in front of a jury, the jury would only get to hear that Dr. Farrand let the cancer grow unchecked for two years, from 2004 to 2006. But Mr. Baker wanted a Maine jury to know the whole truth of his claim, that is, that Dr. Farrand let Mr. Baker’s prostate cancer grow unchecked for four years, from 2002 until 2006.

Maine has various levels of courts, including the District Court, Superior Court and Maine’s highest court–the Maine Supreme Judicial Court (also called the “Law Court”.) For medical malpractice cases alone, there are also confidential medical malpractice screening panels under a special law called the “Health Security Act”. Having a medical malpractice case heard in front of a screening panel is a required step before a case against a doctor can be filed and heard before a Maine jury in open court.

The Baker v. Farrand screening panel chair asked a Maine Superior Court Justice (a court below the Maine Supreme Judicial Court) to handle the issue, and the Superior Court Justice agreed with Dr. Farrand. However, Mr. Baker’s trial lawyer didn’t stop there. Instead he appealed that decision to the Maine Supreme Judicial Court. Mr. Baker’s trial lawyer asked the Law Court whether it would be fair and just, and still in keeping with Maine law, for the three year statute of limitations period to begin to run, for “a series of interrelated negligent acts that occurred during the course of treatment”, on the date of the last act of negligence as long as that last act occurred within three years before the legal action was started with the filing of a confidential notice of claim.

Fortunately for Maine patients, the Maine Supreme Judicial Court ruled in favor of the patient. Unlike medical malpractice panels, the Supreme Judicial Court is made up of a panel of Justices that operate in the broad daylight of public access. The lawyers argue before that Court in open court. Anyone can come, anyone can listen. The Law Court decision about what happens when a doctor’s negligence is a combination of negligent acts was made together by the Supreme Judicial Court’s Chief Justice, Leigh Saufley, and by Supreme Judicial Court Justices Alexander, Levy, Silver, Mead, Gorman and Jabar, and their decision is published for anyone to read.

Justice Jonathan Levy wrote the Court’s published opinion in language that makes the reader take a hard look at the words of the Maine statute that controls lawsuits against doctors. Justice Levy made it clear that the State’s highest Court thinks that words used in Maine laws should be given “the plain meaning of the statute within the context of the whole statutory scheme to give effect to the Legislature’s intent.”

Justice Levy said that if Dr. Farrand was going to argue that the notice of claim was filed too late, Dr. Farrand would have the burden, and Dr. Farrand would have to “establish without dispute as to a material fact that his failure to refer [Mr.] Baker to a urologist in 2002 or 2003 was not in part a proximate cause of the delayed diagnosis of [Mr.] Baker’s prostate cancer, affecting his prognosis and treatment options.”

Mr. Baker was finally given permission to move ahead with his claim that he was harmed because his prostate cancer had been allowed to grow unchecked not just for two years from 2004 to 2006, but all the way back four years, from 2002 to 2006.

Unbroken health has a very high value. The chance to have cancer removed early has a very high value as well. In fact, unbroken health and the chance for early detection to keep unbroken health are among our most valuable assets.

If you or your loved one have been harmed by a negligent doctor whose carelessness lasted over several years, and you want the doctor to be responsible for damaging your health or ruining your chance for healthy survival, ask an attorney with experience representing injured patients to take a look at the facts. It may not be too late for you to ask a jury to return the value of your health and your peace of mind to you.

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Photo Credit: Morguefile, Dave

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