Maine Medical Malpractice Summary

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Statutes of Limitations

An action for medical malpractice must be brought within three years from the date of the alleged negligent act or omission. Me. Rev. Stat. Ann. tit. 24, § 2902 (West 1990). The statute does not contain a discovery provision. However, with respect to foreign object cases, the action does not accrue until the injury is discovered or reasonably should have been discovered. Id. This statute of limitations applies to wrongful death allegedly caused by medical malpractice. Givertz v. Maine Medical Center, 459 A.2d 548 (Me. 1983).

Actions on behalf of minors must be brought within six years of the date of the alleged act or omission or within three years after the minor reaches the age of majority, whichever comes first. Me. Rev. Stat. Ann. tit. 24, § 2902 (West 1990). If the claimant is incompetent, the action does not accrue until the disability has been lifted. Me. Rev. Stat. Ann. tit. 14, § 853 (West 1980).

Contributory or Comparative Negligence

Maine has adopted a form of the doctrine of modified comparative negligence. Me. Rev. Stat. Ann. tit. 14, § 156 (West 1980). Under this doctrine, a claimant’s action is barred if the jury finds him to be “equally at fault.” Id. However, unlike in other states, the jury does not need to reduce damages by the claimant’s percentage of fault. Instead, it must reduce damages by an amount that it deems “just and equitable,” and this does not have to be in proportion to fault. The jury can even reduce the damages by more than half without creating the inference that the claim should have been barred. Pelletier v. Fort Kent Golf Club, 662 A.2d 220 (Me. 1995).

Joint and Several Liability

Maine adheres to the rule that joint tortfeasors are jointly and severally liable. Me. Rev. Stat. Ann. tit. 14, § 156 (West 1980). Thus, any tortfeasor against whom judgment has been entered may be liable to the claimant for the entire judgment, regardless of the tortfeasor’s share of fault.

Contribution

Joint tortfeasors have a right to contribution. Otis Elevator Co. v. F.W. Cunningham & Sons, 454 A.2d 335 (Me. 1983). A right to contribution may be enforced through a separate action. Id.

While joint tortfeasors are jointly and severally liable for the claimant’s damages, a defendant can request, through special interrogatories, that a jury determine each defendant’s percentage of fault. Me. Rev. Stat. Ann. tit. 14, § 156 (West 1980). This percentage of fault may not, however, be binding on the allocation. Cf. Pelletier v. Fort Kent Golf Club, 662 A.2d 220 (Me. 1995).

Vicarious Liability

Maine has not addressed the issue of whether an independent contracting physician can be the apparent or ostensible agent of a hospital, thus imposing vicarious liability on the hospital.

Expert Testimony

Maine does not require a medical malpractice claimant to attach an expert’s affidavit to the complaint. Expert testimony is required to establish a prima facie case of negligence, unless the negligence lies within the common knowledge of a layman. Patten v. Milam, 480 A.2d 774 (Me. 1984).

Damage Caps

Maine does not impose a cap on the amount of damages that may be collected in a medical malpractice action. However, non- economic damages for wrongful death are limited to $150,000 and punitive damages are limited to $75,000. Me. Rev. Stat. Ann. tit. 18-A, § 2-804 (West Supp. 1997).

Statutory Cap on Attorneys’ Fees

In an action for professional negligence, an attorney cannot collect contingent fees in excess of 33 1/3 percent of the first $100,000 recovered, 25 percent of the next $100,000 recovered, and 20 percent of any amount above $200,000. Me. Rev. Stat. Ann. tit. 24, § 2961 (West 1990). For purposes of this rule, future damages are to be reduced to a lump-sum value. Id. The court may, however, review the reasonableness of the attorneys’ fees in a particular case and authorize a larger percentage. Id.

Periodic Payments

If the jury has awarded the claimant damages in excess of $250,000, either party can move the court for an order that the damages be paid in periodic payments. Me. Rev. Stat. Ann. tit. 24, § 2951 (West 1990). The court will also determine any amount of interest which should be paid in the case of a structured settlement. Id. If the claimant dies prior to the satisfaction of the judgment, damages for loss of future earnings and loss of services will not be reduced. Id.

Collateral Source Rule

Evidence of collateral payments to a claimant is admissible in Maine after a verdict for the claimant and before a judgment is entered on that verdict. Me. Rev. Stat. Ann. tit. 24, § 2906 (West Supp. 1997). The court will reduce an award for damages by the amount paid by the collateral source.

Pre-Judgment Interest

A prevailing plaintiff is entitled to pre-judgment interest at one percent over the average interest rate on one-year United States Treasury bills from the date the complaint was filed until the satisfaction of the judgment. Me. Rev. Stat. Ann. tit. 14, § 1602 (West 1980 & Supp. 1997). However, if the prevailing party requested a continuance for any time longer than 30 days, the interest will be suspended during that time period. Id.

Patient Compensation Funds and Physician Insurance

Maine does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

The Maine Tort Claims Act, Me. Rev. Stat. Ann. tit. 14, §§ 8101 to 8116 (West 1980 & Supp. 1997), provides limited immunity for all government entities, including the state, cities, towns, plantations, counties, and other special districts. Me. Rev. Stat. Ann. tit. 14, § 8102 (West 1980 & Supp. 1997). This provision is applicable to state hospitals. Darling v. Augusta Mental Health Institute, 535 A.2d 421 (Me. 1987). The legislature has specifically waived immunity from actions for wrongful death. Me. Rev. Stat. Ann. tit. 14, § 8104-C (West Supp. 1997). The liability of the state or governmental entities and government employees is limited to $300,000 for a single occurrence. Me. Rev. Stat. Ann. tit. 14, § 8105 (West 1980 & Supp. 1990). However, claimants may apply to the legislature for special authorization permitting an award in excess of the $300,000 limit. The state and its governmental units are immune from liability for punitive damages. Id.

Personally, government employees are subject to a liability limit of $10,000 if they were acting within the scope of their employment. Me. Rev. Stat. Ann. tit. 14, § 8104-D (West Supp. 1997). However, if the employee was undertaking a legislative act, a judicial act, a discretionary governmental function, or a prosecutorial function, the employee will be personally immune from liability. Me. Rev. Stat. Ann. tit. 14, § 8111 (West Supp. 1997). Medical practitioners who volunteer their services are afforded protection from liability for any act or omission in rendering their professional services. Me. Rev. Stat. Ann. tit. 24, § 2904 (West Supp. 1997).

The legislature authorizes the state and political subdivisions to purchase liability insurance. Government entities waive their immunity to the extent they carry applicable insurance. Me. Rev. Stat. Ann. tit. 14, § 8116 (West 1980 & Supp. 1997).

Arbitration

Before a medical malpractice claim may be filed in Maine, a complaint must be filed with a pre-litigation screening panel. Me. Rev. Stat. Ann. tit. 24, §§ 2851 and 2853 (West 1990 & Supp. 1997). The screening panels serve a two-fold function of encouraging both the early resolution of claims and the withdrawal of unsubstantiated claims. Id. However, the pre-trial screening process can be waived if all parties agree. Me. Rev. Stat. Ann. tit. 24, § 2853(s) (West 1980 & Supp. 1997). Alternatively, all parties may agree in writing to submit the claim to a binding decision of the panel. Id. The parties can also use a combined method where certain issues are heard by the panel and others by the court. Id. The panel does not have the power to decide dispositive legal issues. The chairman may request that these dispositive legal issues be tried in the Superior Court prior to the panel’s hearing. Id.

The findings of the panel and any disclosures made at the hearing are confidential and cannot be used later in subsequent litigation, unless the panel’s decision is unanimously in favor of either the plaintiff or the defendant. Me. Rev. Stat. Ann. tit. 24, § 2857 (West 1990 & Supp. 1997).

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Revision Date: February 6, 1998