Maine Medical Malpractice Laws

Medical malpractice claims are nuanced in that there are a variety of facts that must be analyzed to make certain that your claim has merit and is permitted to be filed with a court. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Maine; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Maine. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Maine

In Maine, you may bring a medical malpractice case against a medical care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Maine places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Maine allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. Maine is one of a few states that refuse to place a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in Maine?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Maine mandates that an action for personal injury must be filed within three years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially help bolster your case would become less compelling.

The law in Maine does provide a special exception to the three-year statute of limitations rule whereby the two-year clock does not begin to run until your injury has been, or should have been, discovered. However, this exception, known as the “discovery rule,” is only applicable in a situation where a foreign object was left within a patient’s body. If a situation arises where you find a foreign object was left within your body, you have three years from the date of discovery to file your medical malpractice case. [2]

Additionally, if the person who suffered an injury is a minor child, the law states that the lawsuit must be filed within six years of the malpractice occurring or by the time the child reaches 21 years of age, whichever comes first.

In Maine Medical Malpractice Cases, Who is Responsible?

In Maine, an action arising out of a medical injury may be brought against a medical care provider whether based in tort, contract, or otherwise, to recover damages on account of your medical injury.

Those that can be held responsible due to being included in the definition of a “medical care provider” include:

Any hospital, clinic, nursing home or another facility in which skilled nursing care or medical services are prescribed by or performed under the general direction of persons licensed to practice medicine, dentistry, podiatry or surgery in this State and that is licensed or otherwise authorized by the laws of Maine. [3]

What if I am partially to blame? Can I Still Recover Money for Maine Medical Malpractice?

Maine, along with 32 other states recognizes the doctrine of modified comparative fault. [4] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Maine is one of 12 states (Arkansas, Colorado, Georgia, Idaho, Kansas, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and alcohol that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not following the medication’s instructions when you consumed alcohol while on the medication. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Maine decided to adopt a modified system.

Are there medical malpractice recovery caps in Maine?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two main types of damage awards you may receive:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.

Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

General damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

The law in Maine does not place a limit on the amount of damages that may be awarded in a medical malpractice action. However, if the action you are bringing is based upon wrongful death, a limit is placed on the amount go non-economic (general) damages to $150,000. [5]

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. In Maine, punitive damages may be awarded by the court only when you prove that the actions of the defendant were malicious or outrageous.

Expert witness reporting and testimony

Having an expert provide testimony that supports the claims you are making against a healthcare provider in your medical malpractice case is the best way to substantiate the merits of your claim. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.

The law in Maine, unlike some other states, does not require that you present an expert’s opinion on the merits of your case at the time you file your lawsuit. However, you are required to provide an expert’s testimony at trial in order to prove that professional negligence did in fact occur and that, that negligence led to your injury.

Are some parties immune from medical negligence cases?

The law Maine gives limited immunity to government entities, like:

• state
• cities
• towns
• plantations
• counties [6]

If you are successful in your medical malpractice lawsuit that has been brought against an employee of the state or government, your damage award is limited to $300,000. [7]

Settling medical malpractice cases in Maine

Seeing a case through to the end of a trial can take an extraordinary amount of time, money and resources. For those reasons, it is not uncommon for a case to settle prior to trial. The law in Maine does not require mandatory alternative dispute resolution methods like arbitration or mediation but it does require that you submit your claim to a pre-litigation screening panel. [8]

The idea behind the pre-trial screening panel is to encourage the early resolution of medical malpractice claims while limiting the amount of meritless claims that are filed.

However, if all involved parties unanimously agree that they would like to bypass the screening, they may do so. Additionally, if all involved parties wish to have a binding decision made by the panel, they may place the request in writing.

To make up the members of the panel, the law in Maine requires the Chief Justice of the Superior Court to recommend to each Superior Court clerk the names of retired judges and justices, persons with judicial experience, and other qualified persons to serve on screening panel. Once a claim is submitted, the clerk of the Superior Court will notify the Chief Justice who in turn must choose a retired justice or judge, a person with judicial experience, or another qualified person from the list kept by the clerk to serve as the panel’s chair. The lead chairperson then chooses two or three additional panel members. Those members must be:

1) one attorney;

2) one health care practitioner, who, if possible, practices in the specialty or profession of the person accused of negligence; and

3) if the claim involves more than one person accused of professional negligence, the chair can choose a fourth member who is a health care provider or practitioner.

Most panel hearings take place in a courtroom. However, if a courtroom is not available for a panel hearing, the panel chair will select an alternative site for the hearing.

From there, the panel will hear the evidence and issue a decision in favor of either the plaintiff or the defendant.

Litigating medical negligence cases in Maine

A claim for medical malpractice in Maine is initiated by preparing a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to trial. In Maine, a civil lawsuit begins with the filing of a complaint with the clerk of the court. The law in Maine then requires that once a complaint is filed, the court clerk will issue a summons which will be served upon the named defendants by the Sheriff.

A complaint should include:

• A statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the plaintiff is entitled to relief,
• A demand for the relief to which the plaintiff considers himself entitled

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Upon receipt, the defendants have 20 days to file an Answer which admits and/or denies statements made in the complaint. [9]

The Answer should include:

• Reasons for denial of the relief sought by the plaintiff
• Affirmative defenses
• Affirmative relief sought by the defendant
• Whether there will be a counter-claim, set-off, cross-claim, or third-party claim
• The address of the defendant or their attorney

Preparing for Litigation

After the disclosures have been made and the complaint, summons, and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

The law in Maine allows each side to obtain discovery by:

• oral examination or written questions;
• written interrogatories;
• requests for admission;
• request for production of documents or other information;
• physical and mental examinations [10]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

At the trial, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The law in Maine mandates that claims of medical malpractice first be heard during pre-trial screening panel unless all involved parties agree to bypass the proceeding.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Maine: a judge or a jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court.

Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. A potential juror is not allowed to be excluded from jury service because of race, color, religion, sex, national origin or economic status. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Maine, a person is considered to be qualified to be a juror if they are:

• A registered voter
• A citizen of the United States
• A resident of the State of Maine and of the county in which he or she may be summoned for jury service

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must file a Notice of Appeal with the clerk of the circuit court that entered the judgment no later than twenty-one (21) days from the date of the original judgment.

How to find the best Maine Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high-powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Do not let an attorney or firm pressure you into hiring them on the spot. Take your time and interview more than one law firm to make sure that the counsel you end up with is the right fit for you and your family.

Make certain to seek out an attorney or law firm that has extensive experience and knowledge with cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

If the attorney or firm you are interviewing has a large case load, you will want to make sure that your case gets sufficient attention. Ask the firm or attorney if they have the time to focus on your case.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Maine

These cases represent awards to plaintiffs in medical malpractice cases in Maine. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Braley v. Nelson

The plaintiff, Paula Braley, brought a lawsuit on behalf of her deceased husband, Thomas Braley, against Eastern Maine Medical Center and Dr. Lawrence Nelson.

The plaintiff’s husband was flown to the hospital after an ATV accident. As a result of the accident, he suffered several broken ribs, among other injuries, and there was an indication of internal bleeding from CT scans ordered by the emergency department physician.

However, the treating physicians failed to follow up on the indications of internal bleeding and did not issue an order for follow-up X-rays to monitor the internal bleeding. 36 hours after being admitted to the hospital, the extent of the internal bleeding caused one of his lungs to collapse. The lack of oxygen ended up causing a heart attack which took Mr. Braley’s life.

The plaintiff argued that her husband’s death may have been avoided with the placement of a chest tube for drainage of accumulating fluid.

The jury agreed and found that Eastern Maine Medical Center, its doctors and nurses, and Dr. Nelson were negligent. The jury awarded a total of $6,711,000 in damages which included:$11,000 for funeral and burial expenses; $1 million for Braley Sr.’s conscious suffering before his death; $1.2 million in loss of economic support; and $4.5 million for loss of companionship and emotional distress.

However, due to damage cap laws, the award will most likely be reduced.

New Case

A Bar Harbor woman has been awarded $1.1 million after a jury in a civil trial determined that a doctor at Eastern Maine Medical Center was responsible for her husband’s death.

The plaintiff, Melodie Haskell, brought a lawsuit on behalf of her deceased husband, Thomas Haskell, against Bangor hospital, Dr. Francis DiPerro and Dr. Felix Hernandez.

Thomas Haskell underwent heart bypass surgery and was considered healthy after doing so by his treating physicians. However, Mr. Haskell suffered complications after the surgery and experienced significant blood loss. He died four days after the procedure.

At trial, the plaintiff argued that the medical care her husband received after his heart surgery was negligent because he was not given sufficient blood to replace the amount he was losing through bleeding. As a result, his vital organs were unable to get enough oxygen due to his low blood levels, which led to organ failure.

Both sides had medical experts testify at the trial about whether the care that Mr. Haskell received was substandard.

A nine-person jury determined by a 6-3 vote that Dr. Hernandez was negligent in his care of Mr. Haskell and responsible for his death. The jury voted unanimously that Dr. DiPierro, was not responsible and, by a 6-to-3 decision, that the hospital also was not responsible.

The jury awarded the plaintiff $400,000 in lost wages that her husband likely would have earned had he lived, $200,000 for the conscious suffering her husband experienced after the surgery, $800,000 for loss of consortium, and an additional $1,150 for the cost of her husband’s funeral. The $800,000 loss of consortium award will be reduced to $500,000 due to damage cap laws.

Footnotes

[1] Me. Rev. Stat. Ann. tit. 24, § 2902

[2] Me. Rev. Stat. Ann. tit. 24, § 2902

[3] Me. Rev. Stat. Ann. tit. 24 § 2502

[4] Me. Rev. Stat. Ann. tit. 14 § 156

[5] Me. Rev. Stat. Ann. tit. 18-A, § 2-804

[6] Me. Rev. Stat. Ann. tit. 14, § 8102

[7] Me. Rev. Stat. Ann. tit. 14, § 8105

[8] Me. Rev. Stat. Ann. Tit. 24 §§ 2851

[9] Maine Rules of Civil Procedure Rule 12(a)

[10] Maine Rules of Civil Procedure Rule 26 and 35