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Medical Malpractice Prelitigation Requirements in Maine

Screen Shot 2013-07-26 at 4.27.42 PM.pngIf you are injured by a doctor or other healthcare professional in Maine, it is important to retain an attorney who is familiar with the complex rules of medical malpractice. The rules for medical malpractice are not the same as for general personal injury or other similar types of cases. One example of a difference between medical malpractice and other personal injury claims is that before the medical malpractice claim is filed, the plaintiff must file a complaint with a pre-litigation screening panel.

The policy behind this screening panel requirement is to encourage speedy resolution of claims and to avoid or reduce prosecution of claims that are not meritorious. This process can be bypassed only if all the parties agree. The parties may also agree to submit the claim to the panel for a binding decision. The panel is composed of judges and qualified people, particularly those with judicial experience.

A case decided last year illustrates the importance of finding an attorney who understands the special procedures that govern medical malpractice cases in Maine. In that case, the plaintiff had a bypass surgery in 2006 and developed a bedsore on his tailbone. The surgeon who had performed the bypass was away and his partner was looking after the plaintiff. The partners had privileges at the hospital, but were not employees there.

The plaintiff’s wife called the partner with concerns, including that her husband was overmedicated. When the surgeon returned, he was surprised to see the bedsores. They worsened over time and required special medical care. The pain and related ailments had not been resolved.

The plaintiff and his wife filed a notice of claim alleging professional negligence. This triggered the prelitigation screening and panel process. The claim named the hospital (based on the nurses’ care) and surgeon separately. The claim did not name the surgeon’s partner, although it did name the surgeon. The partner was never called as a witness. The prelitigation screening panel found that neither the surgeon nor the hospital had deviated from the appropriate standard of care while treating the plaintiff.

A month later, the plaintiff and his wife sued the surgeon and hospital for negligence, negligent infliction of emotional distress and loss of consortium. The complaint did not name the surgeon’s partner or allege that the surgeon and his partner were agents of the hospital. The surgeon filed a motion for summary judgment, which was granted. However, the plaintiff filed a new claim against the hospital, alleging that the surgeon’s partner was professionally negligent and she was apparently an agent of the hospital.

Before trial, the hospital tried to prevent the plaintiff from presenting the new theory of liability based on the surgeon’s partner’s negligence. The court deferred ruling on the issue of the partner, allowing evidence of her alleged professional negligence to be presented to the jury. It did not permit the hospital to present an expert on the partner’s standard of care.

The jury found that the hospital was negligent, that the partner was an agent of the hospital, that the nurses were negligent, and that the plaintiff’s injury was proximately caused by the hospital’s negligence. When the hospital filed for a judgment notwithstanding the verdict, to alter the judgment and for a new trial, the court denied the motion. The hospital appealed.

The appellate court reasoned that the partner was not an agent of the hospital at any relevant time. It also explained that the plaintiff had not originally put the partner or the hospital on notice of the claim against her–the plaintiff had not advanced the theory of her professional negligence until the surgeon was out of the case. Therefore, the prelitigation suit requirement for professional negligence cases had not been met as to the partner. The appellate court vacated the entire judgment.

As you can see, it is critical that all possible parties be named at the outset and the case be thoroughly worked up by lawyers with significant medical malpractice experience before a professional negligence claim is brought against a doctor or other healthcare professional in Maine.

If you have been injured under the supervision of a medical professional, contact the medical malpractice lawyers at Briggs & Wholey, LLC for a free consultation. Our firm has reached multi-million dollar settlements on behalf of patients and their families. Our extensive experience, medical knowledge, and strong trial skills can help you receive the compensation your situation deserves.

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