MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision: 2019 ME 84
Docket:   Pen-18-283
Argued:   April 10, 2019
Decided:  May 30, 2019

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                              MICHAEL D. HOLMES et al.

                                            v.

                     EASTERN MAINE MEDICAL CENTER et al.



GORMAN, J.

         [¶1] Michael D. and Debra A. Holmes appeal from a summary judgment

entered by the Superior Court (Penobscot County, Anderson, J.) in favor of

Spectrum Medical Group and one of its radiologists, Guillermo Olivos, M.D., on

the Holmeses’ medical malpractice claims, as well as from the court’s judgment,

entered on a jury verdict, for Eastern Maine Medical Center (EMMC) and one of

its surgeons, Michael St. Jean, M.D., on those same claims. We affirm the

judgments.
2

                                        I. BACKGROUND

A.       Facts1

         [¶2] On August 14, 2012, a surgical oncologist at EMMC removed a

noncancerous polyp from Michael’s colon. Michael was discharged from EMMC

four days later, on August 18, 2012.

         [¶3] On August 20, 2012, at approximately 5:00 p.m., Michael went to the

EMMC emergency department complaining of abdominal pain. At 7:00 p.m.,

Michael was seen by the on-call surgeon—St. Jean. Because he believed Michael

was suffering from a postoperative ileus,2 St. Jean ordered a CT scan of

Michael’s abdomen to rule out the possibility of active bleeding or an

anastomotic leak.3



     Because Olivos’s motion for summary judgment was granted and because St. Jean’s was denied
     1

and the claims against him proceeded to trial, there are two different standards by which we review
the evidence on appeal. With respect to the Holmeses’ appeal of the court’s grant of a summary
judgment for Olivos, we view the undisputed material facts in the light most favorable to the
nonprevailing party, here, the Holmeses. See Grant v. Foster Wheeler, LLC, 2016 ME 85, ¶ 12,
140 A.3d 1242. With respect to the Holmeses’ appeal of the judgment in favor of St. Jean, however,
we view the evidence in the record in the light most favorable to the jury’s verdict. See Darling’s Auto
Mall v. Gen. Motors LLC, 2016 ME 48, ¶ 2, 135 A.3d 819. Because the facts established at trial are
similar to the record at summary judgment and, more importantly, because this opinion focuses on
the summary judgment issue, the facts we include below are undisputed material facts taken from
the summary judgment record.

    An “ileus” was described by St. Jean as “when the intestinal track slows down due to some other
     2

condition.”
     3The anastomotic leak described here was, in lay terms, “a leak of the bowel contents at the
junction of the two portions of the bowel that were surgically reconnected” during surgery to remove
the polyp.
                                                                                                3

       [¶4]     Michael had a CT scan taken of his abdomen at 9:30 p.m.

Approximately one hour later, a radiologist interpreted the results of the CT

scan and concluded that there was evidence of moderate to severe abdominal

ascites,4 which were “concerning for developing infection versus phlegmonous5

changes.” The report was faxed to EMMC at 10:37 p.m.

       [¶5] At approximately 8:00 the following morning, August 21, 2012,

Olivos reviewed the CT scan of Michael’s abdomen taken the previous night. In

his report, Olivos identified pelvic ascites, noted some dots of air in the ascites

near the liver, and also stated that “[t]here [were] no findings to suggest an

anastomotic leak.”

       [¶6] At approximately 9:40 p.m. on August 21, 2012, Michael was

observed by a second surgeon—one of St. Jean’s partners—to have fast, shallow

breathing, pain, and a distended and tender abdomen; based on these

symptoms, this second surgeon determined that Michael’s condition warranted

immediate exploratory surgery. She began the surgery at 10:55 p.m. and, in the

course of that surgery, discovered a small anastomotic leak, which she believed



   4 “Ascites” is an “[a]ccumulation of serous fluid in the peritoneal cavity.” Ascites, Stedman’s
Medical Dictionary (27th ed. 2000).
   5 A “phlegmon” is an “[a]cute suppurative inflammation of the subcutaneous connective tissue.”
Phlegmon, Stedman’s Medical Dictionary (24th ed. 1982).
4

had infected the fluid and blood in the abdomen, causing Michael’s “septic

state.”

         [¶7]    After this second surgery, Michael was hospitalized until

October 1, 2012. While hospitalized, Michael was intubated for a prolonged

period of time and eventually underwent a tracheostomy.                             Michael also

developed deep venous thrombosis and was diagnosed with a stroke during the

hospitalization at EMMC.

B.       Procedure

         [¶8] In May of 2015, the Holmeses filed notice of their professional

negligence claim against EMMC, St. Jean, Northeast Surgery of Maine, Spectrum,

and Olivos6 in the Superior Court (Penobscot County) pursuant to the Maine

Health Security Act (MHSA), 24 M.R.S. §§ 2501-2988 (2018), alleging one count

of medical malpractice in connection with the complications that Michael

suffered after he arrived at EMMC on August 20, 2012. See 24 M.R.S. §§ 2853,

2903; M.R. Civ. P. 80M(b). On November 18, 2016, a hearing was held before




     For simplicity’s sake, in the remainder of this opinion we will refer only to the physicians, and
     6

not to the institutions employing them, because (1) all claims against Northeast Surgery were
dismissed by agreement of the parties before closing arguments; (2) the issue of whether Spectrum
was vicariously liable for the actions of Olivos was never determined because the court granted
summary judgment on these claims; and (3) the issue of whether EMMC was vicariously liable for the
actions of St. Jean was never determined by the jury.
                                                                                                    5

the prelitigation screening panel at which all parties introduced evidence and

presented expert witnesses. See 24 M.R.S. § 2854; M.R. Civ. P. 80M(g).7

       [¶9] On December 15, 2016, the Holmeses filed their complaint for

medical malpractice against St. Jean and Olivos in the Superior Court. See 24

M.R.S. § 2859. After the completion of discovery, Olivos and St. Jean each

separately moved for summary judgment. See M.R. Civ. P. 56. In the documents

filed in support of, and in opposition to, the motions, the parties referred to the

deposition testimony of the general surgeon and neurologist whom the

Holmeses had designated as expert witnesses.

       [¶10] At his deposition, the general surgeon testified that had the

anastomotic leak been identified and treated during the evening of

August 20, 2012, some harm to Michael could have been avoided, including the

prolonged hospitalization, prolonged intubation, tracheostomy, and deep

venous thrombosis. Specifically, he testified that it was “more likely than not”

that Michael “would have had fewer postoperative complications” had the

second surgery occurred twenty-four hours earlier, at approximately 8:00 p.m.



   7  Because all proceedings before prelitigation screening panels are generally “private and
confidential,” and because those proceedings do not affect this opinion, we do not discuss the panel’s
final determinations. See 24 M.R.S. § 2857 (2018); M.R. Civ. P. 80M(g)(10).
6

on August 20, 2012. The neurologist testified at his deposition that had the

second surgery occurred sooner, it was more likely than not that Michael could

have avoided the stroke.

      [¶11] After a hearing, by order dated May 21, 2018, the court denied

St. Jean’s motion, but granted Olivos’s motion. In its order granting a summary

judgment for Olivos, the trial court referred to the deposition testimony from

the Holmeses’ expert witnesses. It stated:

            Here, Dr. Olivos did not become involved in the matter until
      well after the time [the surgical expert] testified was critical to
      avoiding . . . some of the significant complications suffered by Mr.
      Holmes. On this record, the Court concludes that plaintiffs cannot
      adequately establish through expert testimony that it is more likely
      than not that any negligence attributable to Dr. Olivos and
      Spectrum Medical Group caused harm to Mr. Holmes. . . .

             To be clear, however, the Court does not accept, and does not
      rule, that the passage of 8:00 pm on August 20, 2012 was an
      absolute “cut off” point for the establishment of adequate
      causation. The standard to be applied is “more likely than not.”
      Sepsis brought on by the kind of bowel leak at issue here is clearly
      a progressive condition with worsening effects, as plaintiffs’ expert
      has testified, and medical intervention would be warranted sooner
      than later. The Court simply concludes that the involvement of Dr.
      Olivos is too removed in space and time, well after a period
      plaintiffs’ expert testified was a critical juncture, such that it is
      unreasonable to allow a jury to make the requisite finding of
      proximate cause. The Court believes a jury’s deliberation on the
      involvement of Dr. Olivos would venture into the realm of
      conjecture or speculation disapproved of in Merriam. See Merriam
      [v. Wanger], 2000 ME 159, ¶ 10, 757 A.2d 778 (“Proximate cause is
      generally a question of fact [f]or the jury, but the court has a duty
                                                                                                      7

       to direct a verdict for the defendant if the jury’s deliberation rests
       only on speculation or conjecture[.]”) (citations omitted).

              Here, the Court concludes that the required expert testimony
       falls short of the necessary legal threshold of proximate cause with
       respect to Dr. Olivos and Spectrum Medical Group.

       [¶12] Thereafter, in June of 2018, the court conducted a nine-day jury

trial on the Holmeses’ malpractice claim against St. Jean. On June 21, 2018, the

jury returned a verdict for St. Jean,8 and one week later the court entered a

judgment on the verdict. The Holmeses timely appealed. See 14 M.R.S. § 1851

(2018); M.R. App. P. 2B(c)(1).

                                         II. DISCUSSION

       [¶13] The Holmeses argue that the court erred in granting Olivos’s

motion for summary judgment.9 Specifically, the Holmeses assert that there

was “evidence in the record upon which a factfinder could reasonably decide

that Dr. Olivos’[s] negligent reading of the critical CT scan caused delay in




   8 The jury delivered its verdict via a special verdict form that asked, “Was Dr. St. Jean negligent,
and was the negligence a cause of injury and damage to Mr. Holmes?” The jury answered “no” to this
question and thus did not complete the rest of the form.
   9   The Holmeses also assert that the court erred in its determinations concerning (1) expert
witness fees; (2) the use of panel findings at trial; (3) expert witness testimony at trial; and (4) the
“lost chance” doctrine. Because we do not find any of these arguments persuasive, we do not discuss
them further.
8

necessary treatment” and that this delay was a proximate cause of Michael’s

injuries.

      [¶14] “We review the grant of a motion for summary judgment de novo,

and consider both the evidence and any reasonable inferences that the

evidence produces in the light most favorable to the party against whom the

summary judgment has been granted in order to determine if there is a genuine

issue of material fact.”   Grant v. Foster Wheeler, LLC, 2016 ME 85, ¶ 12,

140 A.3d 1242 (quotation marks omitted); M.R. Civ. P. 56(c). Our review of the

evidence is a narrow one, focused on “the parties’ statements of material facts

and the record evidence to which the statements refer.” Remmes v. Mark Travel

Corp., 2015 ME 63, ¶ 18, 116 A.3d 466; see also Alexander, Maine Appellate

Practice § 512 at 431 (5th ed. 2018).

      [¶15] “A fact is material if it has the potential to affect the outcome of the

suit, and a genuine issue of material fact exists when a fact-finder must choose

between competing versions of the truth, even if one party’s version appears

more credible or persuasive. However, when the matter remains one of pure

speculation or conjecture, or even if the probabilities are evenly balanced, a

defendant is entitled to a [summary] judgment.” Grant, 2016 ME 85, ¶ 12,

140 A.3d 1242 (citations omitted) (quotation marks omitted).
                                                                                 9

      [¶16] Where, as here, “the moving party is the defendant, the burden

rests on that party to show that the evidence fails to establish a prima facie case

for each element of the cause of action.”        Budge v. Town of Millinocket,

2012 ME 122, ¶ 12, 55 A.3d 484 (quotation marks omitted). If the defendant

succeeds, “[i]t then becomes the plaintiff’s burden to make out the prima facie

case and demonstrate that there are disputed facts.” Estate of Cabatit v.

Canders, 2014 ME 133, ¶ 8, 105 A.3d 439.

      [¶17] “In order to establish liability in a medical malpractice case, the

plaintiff must show that the defendant’s departure from a recognized standard

of care was the proximate cause of the injury.” Phillips v. E. Me. Med. Ctr.,

565 A.2d 306, 307 (Me. 1989). “Proximate cause is that cause which, in natural

and continuous sequence, unbroken by an efficient intervening cause, produces

the injury, and without which the result would not have occurred.” Merriam v.

Wanger, 2000 ME 159, ¶ 8, 757 A.2d 778 (quotation marks omitted). Evidence

is sufficient to support a finding of proximate cause in the medical malpractice

context if the evidence and inferences that may reasonably be drawn from it

indicate that (1) the defendant’s negligent conduct played a substantial part in

causing the injury, and (2) the injury was either a direct result or a reasonably

foreseeable consequence of that conduct. Id. ¶¶ 8, 17.
10

      [¶18] Here, the trial court correctly determined that, based on the

undisputed facts, the Holmeses failed to establish a prima facie case for

negligence against Olivos. Michael’s anastomotic leak began before he arrived

at EMMC’s emergency room on August 20, 2012. Olivos did not review the CT

scan of Michael’s abdomen until 8:00 a.m. on August 21, 2012; this was

approximately fifteen hours after Michael arrived at EMMC and approximately

twelve hours after the time identified by the Holmeses’ surgical expert—

8:00 p.m. on August 20, 2012—when the surgery needed to have been

completed in order to avoid Michael’s postoperative complications.

      [¶19] Although the trial court, quite properly, did not take 8:00 p.m. on

August 20, 2012, as the absolute point in time for the establishment of adequate

causation, the experts’ opinions—including the statements by the Holmeses’

surgical expert—informed the court’s decision and must inform ours. In the

Holmeses’ opposing statements of material facts filed in response to Olivos’s

statements of material facts and motion for summary judgment, the Holmeses

repeatedly referred to their own surgical expert’s deposition.        In those

statements, the Holmeses asserted as undisputed facts that

             [the expert] clearly testified that, more likely than not,
      because the medical condition was progressive and developing,
      effectively a sliding scale applied wherein surgery performed
      earlier than [the second surgeon’s] actual surgery would have had
                                                                               11

      some benefit in terms of improving the potential for a better
      outcome, or as [the expert] stated, the “sooner the better.”

The Holmeses also referred to the deposition testimony of their neurology

expert. Crucially, however, the Holmeses do not cite to any record evidence

showing that these experts explained what role, if any, Olivos’s allegedly

negligent reading of the CT scan played in the development of Michael’s

postoperative complications. Although the Holmeses are correct that “absolute

certainty” is not required, some evidence is, and the record presented is

insufficient to provide any basis for a determination that Olivos’s conduct

played a role in Michael’s injuries.

      [¶20] Nearly twenty years ago, we stated,

            [R]easonable foreseeability does not equal causation. To
      support a finding of proximate cause, there must be some evidence
      indicating that a foreseeable injury did in fact result from the
      negligence.

             Proximate cause is generally a question of fact for the jury,
      but the court has a duty to direct a verdict for the defendant if the
      jury’s deliberation rests only on speculation or conjecture.

            For purposes of our analysis here, [the doctor’s] negligence
      is established. We assume also that [the doctor’s] negligence
      created a reasonably foreseeable risk of [the patient’s] damages.
      The issue is whether there is sufficient evidence to establish that it
      is more likely than not that [the doctor’s] negligence played a
      substantial part in bringing about [the patient’s] extended period
      of pain and [damages].
12

Merriam, 2000 ME 159, ¶¶ 9-11, 757 A.2d 778 (citations omitted). Here, the

summary judgment record is devoid of evidence linking Olivos’s conduct to the

injury sustained by Michael or evidence that might allow a jury to parse out to

what degree the delay in time caused or exacerbated any of the complications

he suffered.   See id. ¶¶ 8, 17; McAfee ex rel. McAfee v. Baptist Med. Ctr.,

641 So. 2d 265, 268 (Ala. 1994) (explaining that an expert’s opinion that “‘time

is of the essence’” does not “rise to the level of substantial evidence” needed to

prove causation); Maudsley v. Pederson, 676 N.W. 2d 8, 14 (Minn. Ct. App. 2004)

(“The conclusory statements that generally earlier treatment results in better

outcomes and that every hour counts fail to outline specific details explaining

how and why [the] delay in treatment caused [the plaintiff’s injury]. . . . [A]

delay in diagnosis is not enough; if it were, expert testimony on causation would

not be necessary.”).

      [¶21] As the trial court correctly held, it would be “conjecture or

speculation” to say that any negligence attributable to Olivos was the proximate

cause of Michael’s injuries. See Grant, 2016 ME 85, ¶ 12, 140 A.3d 1242;

Merriam, 2000 ME 159, ¶¶ 8, 17, 757 A.2d 778; Phillips, 565 A.2d at 307; Kava v.

Van Wagner, No. 1:07-CV-507, 2009 U.S. Dist. LEXIS 78905, at *20 (W.D. Mich.

Sep. 3, 2009), aff’d sub nom. Kava v. Peters, 450 F. App’x 470 (6th Cir. 2011)
                                                                                13

(“Plaintiffs’ evidence is too speculative because evidence of Plaintiff’s inability

or loss of opportunity to obtain a ‘better outcome’ provides no basis for a jury

to award damages.”). The court did not err in granting a summary judgment

for Olivos and Spectrum. See Grant, 2016 ME 85, ¶ 12, 140 A.3d 1242; Estate of

Cabatit, 2014 ME 133, ¶ 8, 105 A.3d 439; Budge, 2012 ME 122, ¶ 12,

55 A.3d 484.

        [¶22] There is no doubt that the Holmeses have suffered greatly from

Michael’s various medical ailments. It is a plaintiff’s burden, however, to make

out a prima facie case for negligence; the Holmeses did not do so here, and thus

they are not, as a matter of law, entitled to damages.

        The entry is:

                           Judgments affirmed.



John P. Flynn, III, Esq. (orally), Flynn Law Office, LLC, Bowdoinham, for
appellants Michael D. and Debra A. Holmes

Edward W. Gould, Esq. (orally), and Mariann Z. Malay, Esq., Gross, Minsky &
Mogul, P.A., Bangor, for appellees Eastern Maine Medical Center and Michael St.
Jean

Mark G. Lavoie, Esq., Christopher C. Taintor, Esq. (orally), and Joshua D.
Hadiaris, Esq., Portland, for appellees Spectrum Medical Group and Guillermo
Olivos

Penobscot County Superior Court docket number CV-2015-105
FOR CLERK REFERENCE ONLY
