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Gafner v. Down East Community Hospital
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 130
Docket:	Was-99-2
Argued:	June 7, 1999
Decided:	August 12, 1999




	[¶1]  William and Janet Gafner and their daughter Shannon appeal
from the summary judgment entered by the Superior Court (Washington
County, Marden, J.) in favor of Down East Community Hospital on the
Gafners' claims against the Hospital for professional negligence.  On appeal,
the Gafners claim, inter alia:  (1) that the court exceeded the bounds of its
discretion when it denied their motion for extension of time to designate an
expert witness and granted the Hospital's motion to strike the designation;
(2) that the Superior Court lacked authority under the Maine Health
Security Act to rule on the Hospital's summary judgment motion; and
(3) that we should allow suit against the Hospital on a theory of corporate
liability.  We affirm in part and vacate in part.
	[¶2]  On May 27, 1990, Janet Gafner gave birth to her second child,
Shannon, at Down East Community Hospital.  William Gafner is Janet's
husband and Shannon's father.  Cynthia Sammis, M.D., was Janet's physician
during Shannon's birth.  During the delivery, Shannon's shoulders became
lodged behind her mother's pubic bone.   The Gafners allege that Shannon
suffered a brachial plexus injury resulting from Dr. Sammis's negligence in
responding to the medical emergency.  They filed a notice of claim,
pursuant to the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2985 (1990
& Pamph. 1998), alleging that Shannon's injury was caused by the
professional negligence of Sammis and the Hospital.
	[¶3]  The Chief Justice of the Superior Court, as required by the Maine
Health Security Act, appointed a person to serve as chair of the panel to
screen the claim.  See 24 M.R.S.A. § 2852(2)(A) (Pamph. 1998).  The panel
chair issued an order requiring each party to designate expert witnesses on
or before October 30, 1996, and, on agreement of the parties, extended that
date to April 1, 1997.  The Gafners designated three medical expert
witnesses and an economist regarding the alleged negligence of Dr. Sammis
but did not designate any expert in reference to the Hospital's liability. 
Without timely seeking another extension, the Gafners designated George W.
Russian on approximately August 8, 1997, noting in their designation that
Dr. Russian would testify regarding the Hospital's failure to have in place
certain written policies mandating Dr. Sammis's consultation with other
physicians.  On September 10, 1997, the Hospital filed a motion to dismiss
the Gafners' notice of claim for failure to comply with the discovery order
or, alternatively, to strike the Gafners' late designation of an expert witness. 
Also on September 10, 1997, the Hospital filed a motion for summary
	[¶4]  The panel chair issued an order referring the Hospital's motion
to dismiss the notice of claim or to strike the late designation of experts to
the Superior Court to be heard along with the Hospital's motion for
summary judgment.  After entry of that order, the Gafners filed a motion
with the panel chair, seeking to extend the time within which to designate
expert witnesses.  Again, the panel chair referred the motion to the
Superior Court.  The Gafners did not object to the Chair's referral of any of
the motions to the Superior Court. 
	[¶5]  After hearing, the Superior Court denied the Gafners' motion for
an extension of the time within which to designate experts.   The court also
granted the Hospital's motion to strike the Gafners' late designation of
Dr. Russian as an expert witness, but denied the Hospital's motion to
dismiss the notice of claim for failure to comply with the discovery schedule.
Finally, the court granted the Hospital's motion for summary judgment.
	[¶6]  After summary judgment was entered in favor of the Hospital, the
Gafners' action against Dr. Sammis for professional negligence proceeded
before the panel.  A professional negligence decree regarding the actions of
Dr. Sammis was entered by the screening panel on May 22, 1998.{1}  The
Gafners then filed a complaint in Superior Court alleging that Shannon's
injuries were caused by the negligence of Dr. Sammis and the Hospital.  See
24 M.R.S.A. § 2903 (1990 & Pamph. 1998).  
	[¶7]  Because the court had already entered judgment against the
Gafners regarding the Hospital's liability, the trial would have proceeded
only on the claims against Dr. Sammis.  The Gafners filed a motion to certify
as a final judgment the entry of summary judgment in favor of the Hospital
pursuant to M.R. Civ. P. 54(b).  The Superior Court (Washington County,
Kravchuk, C.J.) granted the motion, allowing this appeal by the Gafners.  The
Hospital does not challenge the certification of the judgment as final.  The
only matters before us relate to the Gafners' claims against the Hospital.
	[¶8]  During the course of the proceedings below, the Gafners
presented three distinct theories of the Hospital's liability.  First, they
alleged that the Hospital was vicariously liable for Dr. Sammis's actions. 
They no longer pursue that claim.  Next, they asserted that the Hospital was
vicariously liable for the actions of the nurses.  They continue to pursue that
cause of action.  And finally, they urged the adoption of a new theory of
direct liability against hospitals or medical facilities referred to generally as
"corporate liability."  They did not timely develop a record during the panel
proceeding related to their assertion of a new cause of action, thus creating
the discovery dispute that constitutes a significant part of this appeal.  We
address those discovery matters first.

A.  Discovery Motions

	[¶9]  Three of the motions presented to the Superior Court related to
discovery disputes in the panel proceeding.  They were:  the Hospital's
motion to strike the designation of Dr. Russian, the Hospital's motion to
dismiss based on the Gafners' failure to comply with the discovery
deadlines, and the Gafners' motion to extend the time for designating
experts.{2}  The Gafners appeal the court's denial of their motion to extend
the time for designating experts and the court's granting of the Hospital's
motion to strike the late designation of Dr. Russian.  Neither party
challenges the court's denial of the motion to dismiss.
	[¶10]  Although the record discloses no abuse of discretion by the
court, we conclude that the court's decisions on the discovery matters at
issue are not reviewable on appeal.  
	[¶11]  When a claim is pending before a panel, "[t]he chair . . . may
permit reasonable discovery."  24 M.R.S.A. § 2852(6) (1990).  The panel
chair must establish a schedule for discovery, see 24 M.R.S.A. § 2853(4)
(Pamph. 1998), and should rule on ordinary motions regarding discovery
disputes.  The panel chair may refer discovery disputes to the Superior
Court, see 24 M.R.S.A. § 2852(6), and will generally do so when those
disputes involve unique legal issues, such as privilege, see 24 M.R.S.A.
§ 2853(5) (Pamph. 1998).{3}  Because the purpose of the panel process is to
"encourage early resolution" of claims, see 24 M.R.S.A. § 2851(1)(A) (1990),
panel chairs are authorized to, and should, resolve ordinary discovery
disputes without referral to the Superior Court.
	[¶12]  When the panel chair does refer discovery matters to the court,
the court has the authority to act on those matters.  See 24 M.R.S.A.
§ 2853(5).   A court acting on discovery matters referred from the panel
chair acts in place of the panel chair.  Its actions are subject to the same
provisions and remedial limitations as those of the chair.  The decisions of
the panel chair, including its discovery rulings, are not subject to appellate
review.  See Sherburne v. Medical Malpractice Prelitig. Screening Panel,
672 A.2d 596, 597 (Me. 1996).  Consequently, ordinary discovery orders
entered by the Superior Court in matters pending before the panel are not
reviewable.{4}  We therefore do not review the court's orders on the motion to
strike or motion to extend.
	[¶13]  We next address the effect of the court's order striking the late
designation of Dr. Russian.  All parties may agree to "bypass the panel and
commence a lawsuit for any reason."  24 M.R.S.A. § 2853(5).  In such a case,
the matter will be presented to the jury (or court) without reference to the
panel process.  The bypassing of the entire panel process by agreement of all
parties, however, should not be confused with the process by which the
Superior Court acts in the stead of the panel on discovery matters referred
from the panel chair.  Even when the referral regarding discovery matters
occurs on agreement of all parties, the matter remains pending before the
panel until its findings have been entered.  The court's authority to fashion a
remedy for a discovery violation, when it acts on discovery matters referred
from the panel chair, is limited to the authority given to the panel chair.  
	[¶14]  The most serious penalty available to the chair, or the court
acting in the chair's stead, is the authority to dismiss the claim pending
before the panel with prejudice.  See 24 M.R.S.A. § 2853(8)(B)(1)-(2)
(Pamph. 1998).{5}  The panel chair does not have the authority, at any time, to
enter a judgment against any party.  Because the court's authority to fashion
remedies resulting from discovery orders is limited to the authority
possessed by the chair, the extent of the court's authority, when it is called
upon to rule on discovery disputes in matters pending before the panel, is to
remand the matter to the panel for further proceedings consistent with its
discovery ruling. 
	[¶15]  The result of the court's decisions on the discovery motions
must be to remand any claims surviving the motion for summary judgment
to the panel for appropriate action.{6}  If the Superior Court had entered
judgment against the plaintiffs directly as a result of its discovery rulings on
behalf of the panel chair, it would have exceeded its authority.  The court,
however, entered judgment on the motion for summary judgment, a
decision which we next address.

B.  Summary Judgment

	[¶16]  The Hospital's motion for summary judgment presented two
separate grounds for entry of judgment in its favor.  First, it argued that the
failure of proof resulting from the lack of an expert mandated judgment in
its favor.  Second, it argued that the Gafners could not, as a matter of law,
succeed on their direct liability claim against the Hospital because the cause
of action asserted against the Hospital-corporate negligence related to the
promulgation of hospital policies-has not been recognized in Maine.
	[¶17]  We conclude that the Hospital's first argument may not be
presented to the Superior Court during the pendency of the panel
proceedings.  We agree with the Superior Court, however, that the Gafners
have failed to state a claim of "corporate liability."

	1.  The Missing Expert

	[¶18]  The Hospital first argues that it is entitled to judgment because
the Gafners failed to designate an expert before the panel.  If this matter had
been pending in the Superior Court on the Gafners' complaint, that
argument would be persuasive.  See Hamor, 483 A.2d at 722-23.
	[¶19]  Because, however, the matter had not yet reached the
complaint phase of the proceedings, the court was only authorized to
consider affirmative defenses or other similar issues.  See 24 M.R.S.A.
§ 2853(5).  Evidentiary failure is not an affirmative defense, and we
conclude that it does not fall within the other "issues" anticipated by the
language of section 2853(5).  See id. (allowing "certain preliminary legal
affirmative defenses or issues [to] be litigated prior to submission of the case
to the panel").  The "preliminary" legal issues envisioned by that section are
those that will be dispositive without the need for a review of the quality of
the evidence regarding professional negligence expected to be presented to
the panel.
	[¶20]  Nonetheless, the Hospital argues that the Superior Court should
be allowed to consider its motion for summary judgment on this issue in
order to avoid duplicative and wasteful proceedings.  Implicit in the
Hospital's argument is the assumption that the Gafners will not be entitled
to further discovery in the complaint phase of the proceeding.  Hence, it
argues, a plaintiff who fails to present persuasive facts before the panel will
be precluded from augmenting those facts in the Superior Court.
	[¶21]  The Hospital's argument on this point is premature.  Whether
the Gafners may designate Dr. Russian or any other expert in the Superior
Court has yet to be decided by that court.  Until the matter has been
presented to the Superior Court after the filing of the complaint, and until
the Superior Court has ruled on any discovery disputes that may be
presented to it, that court cannot determine whether the Gafners' evidence
will withstand a motion for summary judgment.
	[¶22]  We decline the Hospital's invitation to collapse the process into
a unitary event.  The panel screening process is intended to be just that-an
independent mechanism for the initial screening of claims of professional
negligence.  The process was not intended to result in final, binding
determinations on a plaintiff's evidence.  Some duplication is inherent in
the process chosen by the Legislature to address perceived problems in the
litigation of professional negligence claims, although the potential for
duplication will be somewhat alleviated by the operation of 24 M.R.S.A.
§ 2857(3) (Pamph. 1998), which makes it clear that discovery conducted
during the panel process will be deemed part of discovery in subsequent
court actions.
	[¶23]  In summary, the Maine Health Security Act does not confer
upon the Superior Court the authority to finally resolve factual issues related
to allegations of professional negligence that are presented to a prelitigation
screening panel.  Although the panel chair or the parties may refer certain
preliminary matters to the Superior Court before the ultimate issues are
submitted to the panel, the panel alone has the authority under the Act to
decide initially whether the plaintiffs have met their burden of proof in
demonstrating that the healthcare practitioner or provider deviated from
the applicable standard of care and whether that deviation proximately
caused the plaintiffs' injuries.  See 24 M.R.S.A. § 2855(1)(A)-(B). 
	[¶24]  Therefore, to the extent that the Hospital moved for summary
judgment on the basis of the Gafners' failure to timely designate an expert
for purposes of the panel hearing, such a motion may not be presented to
the Superior Court until a complaint has been filed in the Superior Court
and that court has addressed the designation of experts and other discovery
matters in the separate context of the Superior Court proceeding.

	2.  Corporate Liability

	[¶25]  We move then to the Hospital's assertion that the Gafners
cannot proceed against the Hospital because we have not yet recognized a
claim of corporate liability against a hospital.
		(a)  Authority of Superior Court to Entertain Motion

	[¶26]  We first address the court's authority, under 24 M.R.S.A.
§ 2853(5), to rule on the Hospital's motion asserting that the Gafners'
corporate liability claim does not state a cause of action under Maine law.
	[¶27]  The Maine Health Security Act provides that the panel's
primary role is to determine whether the healthcare practitioner or
healthcare provider deviated from the applicable standard of care and
whether that deviation was the proximate cause of the plaintiff's injury.  See
24 M.R.S.A. § 2855(1)(A)-(B). The purpose of the panel process is to act as a
screening device for claims of professional negligence with the goals of early
resolution of all claims, to be accomplished by encouraging settlement of
obviously meritorious claims, discouraging litigation of meritless claims, and
leaving for trial only those claims where a meaningful dispute over liability
exists.  See 24 M.R.S.A. § 2851(1).
	[¶28]  Because the panel's responsibility is to focus on the existence
vel non of professional negligence, it lacks the authority, absent the
agreement of the parties, to dispose of legal affirmative defenses or issues
that are collateral to the central issue of negligence.  See 24 M.R.S.A.
§ 2853(5).  Just as the Superior Court is not authorized to evaluate the
evidence when the matter is pending before the panel, the panel may not
rule on preliminary matters that are to be decided as a matter of law.  This
statutory scheme allows the panel to focus on the merits of each claim of
professional negligence, without the need to resolve dispositive collateral
legal matters, which are generally not within the expertise or purview of the
	[¶29]  Matters appropriately referred to the Superior Court pursuant
to section 2853(5) may include statute of limitation defenses, see Welch v.
McCarthy, 677 A.2d 1066, 1068 (Me. 1996); allegations of failed notice, see
Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶¶ 17-18, 711 A.2d 842,
847-48; or res judicata defenses, see Dutil v. Burns, 1997 ME 1, ¶ 5, 687
A.2d 639, 641.  See generally M.R. Civ. P. 8(c).  In addition, other "issues"
that can be adjudicated in a "preliminary" fashion, may be appropriately
referred to the court by motion.  See 24 M.R.S.A. § 2853(5).
	[¶30]  A motion based on the assertion that the cause of action upon
which the claimant has based her claim before the panel does not exist is
the kind of other "issue" that the Legislature intended to allow the Superior
Court to address.  We conclude, however, that such a motion must be treated
as a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), asserting a failure to
state a claim upon which relief can be granted.  Motions to dismiss pursuant
to Rule 12(b)(6) may be properly presented to the Superior Court pursuant
to 24 M.R.S.A. § 2853(5).  See Dutil, 1997 ME 1, ¶ 5, 674 A.2d at 641;{7}
Choroszy v. Tso, 647 A.2d 803, 805 n.1 (Me. 1994).  If the claimant could
not, under any set of facts, make out a cause of action against the
respondent, it would be senseless for the panel, the parties, and the court to
go through the motions of adjudicating the claim.  The motion was therefore
properly presented to the court, and the court had the authority to consider
entering judgment on the motion.

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