MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	 2018	ME	118	
Docket:	   Pen-17-381	      	
Argued:	   April	11,	2018	
Decided:	  August	14,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
Dissent:	  ALEXANDER,	J.	
	
	
	
                                DOROTHEA	B.	McCAIN	
                                           	
                                          v.	
                                           	
                                JOHN	F.	VANADIA	et	al.	
	
	
MEAD,	J.	

	      [¶1]	 	 John	 F.	 Vanadia,	 D.O.,	 Bangor	 Surgical	 Associates,	 P.A.,	 and	

St.	Joseph	Hospital	 appeal	 from	 an	 order	 of	 the	 Superior	 Court	

(Penobscot	County,	A.	Murray,	J.),	acting	as	medical	malpractice	screening	panel	

chair	pursuant	to	24	M.R.S.	§	2852(6)	(2017)	and	M.R.	Civ.	P.	80M(e),	granting	

Dorothea	 B.	 McCain’s	 motion	 to	 compel	 them	 to	 produce	 in	 discovery	 thirty	

redacted,	nonparty	patient	medical	records	that	the	court	found	were	relevant	

to	 McCain’s	 notice	 of	 claim	 asserting	 medical	 negligence.	 	 The	 appellants	

contend	that	the	court	erred	in	ordering	the	records’	disclosure	because	they	

are	(1)	irrelevant	to	McCain’s	claim	and	(2)	protected	from	disclosure	by	state	
2	

and	 federal	 statute	 and	 by	 the	 physician-patient	 privilege	 set	 out	 in	

M.R.	Evid.	503.	

	     [¶2]	 	 McCain	 has	 moved	 to	 dismiss	 this	 interlocutory	 appeal	 on	 two	

grounds,	 asserting	 first	 that	 decisions	 of	 the	 Superior	 Court	 acting	 as	 panel	

chair	are	not	appealable,	see	Gafner	v.	Down	E.	Cmty.	Hosp.,	1999	ME	130,	¶	12	

735	A.2d	 969;	 and	 second	 that	 dismissal	 is	 required	 pursuant	 to	 the	 final	

judgment	 rule,	 see	 Bd.	 of	 Overseers	 of	 the	 Bar	v.	 Warren,	 2011	 ME	 124,	 ¶	 19,	

34	A.3d	 1103	 (“The	 general	 rule	 is	 that	 discovery	 orders	 are	 deemed	

interlocutory	 and	 therefore	 are	 reviewable	 only	 on	 appeal	 from	 the	 final	

judgment.”).	

	     [¶3]		Given	the	unusual	procedural	posture	presented	here,	we	hold	that	

the	discovery	order	issued	during	the	course	of	the	panel	proceedings	is	now	a	

nullity	 and	 therefore	 does	 not	 govern	 future	 proceedings	 in	 this	 case.		

Accordingly,	no	exception	to	the	final	judgment	rule	applies	that	would	require	

us	to	reach	the	merits	of	the	parties’	arguments	now,	and	we	remand	the	matter	

to	the	Superior	Court.	

                                   I.		BACKGROUND	

	     [¶4]		In	November	2015,	John	Vanadia,	the	sole	physician	employed	by	

Bangor	 Surgical	 Associates,	 P.A.,	 performed	 a	 laparoscopic	 cholecystectomy	
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(gallbladder	 removal)	 on	 Dorothea	 McCain	 at	 St.	 Joseph	 Hospital	 in	 Bangor.		

During	the	procedure,	Vanadia	cut	McCain’s	common	bile	duct	after	mistaking	

it	for	her	cystic	duct,	necessitating	corrective	surgery	soon	thereafter.	

	     [¶5]		On	June	30,	2016,	McCain	filed	a	notice	of	claim	against	Vanadia	and	

Bangor	 Surgical	 Associates,	 P.A.	 (collectively	 Vanadia),	 alleging	 medical	

negligence;	her	claim	was	later	amended	to	include	St.	Joseph	Hospital	(SJH).		

See	24	M.R.S.	§	2853(1)	(2017);	M.R.	Civ.	P.	80M(b)(1).		The	Chief	Justice	of	the	

Superior	Court	 appointed	 a	 medical	 malpractice	 screening	 panel	 chair	

pursuant	to	24	M.R.S.	§	2852(2)(A)	(2017)	and	M.R.	Civ.	P.	80M(b)(2).	

	     [¶6]	 	 In	 May	 2017,	 McCain	 filed	 a	 motion	 to	 compel	 the	 production	 in	

discovery	 of	 “[t]he	 operative	 notes	 for	 each	 and	 every	 [laparoscopic	

cholecystectomy]	 performed	 by	 Vanadia	 in	 2015	 with	 the	 names	 and	 any	

identifying	information	for	the	individual	patients	redacted	to	preserve	patient	

confidentiality.”		When	Vanadia	and	SJH	objected,	the	panel	chair	referred	the	

motion	to	the	Superior	Court.		See	24	M.R.S.	§	2852(6);	M.R.	Civ.	P.	80M(e).	

	     [¶7]		Pursuant	to	M.R.	Civ.	P.	26(g),	the	court	held	a	hearing	and	granted	

the	motion,	ordering	that	Vanadia	and	SJH	produce	the	operative	notes	for	the	

fifteen	 laparoscopic	 cholecystectomies	 performed	 by	 Vanadia	 preceding	

McCain’s	procedure	and	for	the	fifteen	following	her	procedure.		The	court	took	
4	

great	care	to	order	that	the	records	be	heavily	redacted	to	protect	the	identities	

of	the	patients.	

	      [¶8]		Vanadia	and	SJH	filed	a	motion	to	reconsider	and	a	timely	notice	of	

appeal;	 McCain	 then	 moved	 this	 Court	 to	 dismiss	 the	 appeal.	 	 The	 trial	 court	

declined	to	act	on	the	motion	to	reconsider	because	of	the	pending	appeal,	see	

M.R.	App.	P.	3(b)	(Tower	2016),1	and	we	consolidated	our	consideration	of	the	

motion	to	dismiss	with	our	review	of	the	appeal’s	merits.	

	      [¶9]		Inexplicably,	while	those	matters	were	pending,	the	parties	opted	

to	 forge	 ahead	 with	 the	 panel	 process	 without	 the	 records	 subject	 to	 the	

discovery	order	having	been	produced.		The	screening	panel	held	a	hearing	and	

entered	a	 unanimous	decision	on	the	questions	of	whether	Vanadia	deviated	

from	the	applicable	standard	of	care;	whether	his	acts	or	omissions	were	the	

proximate	cause	of	McCain’s	injury;	and	whether,	if	Vanadia	were	found	to	be	

negligent,	 any	 contributory	 negligence	 on	 the	 part	 of	 McCain	 outweighed	 his	

negligence.2		See	24	M.R.S.	§	2855(1)	(2017).		The	issuance	of	findings	by	the	

screening	 panel	 marked	 the	 conclusion	 of	 the	 panel’s	 role	 in	 McCain’s	 claim.		

See	 24	 M.R.S.	 §	 2858	 (2017).	 	 On	 September	 18,	 2017,	 McCain	 filed	 a	 civil	


  1		The	motion	to	reconsider	and	the	notice	of	appeal	were	filed	before	the	restyled	Maine	Rules	of	

Appellate	Procedure	took	effect.		M.R.	App.	P.	1.	
  	
  2		At	this	stage	of	the	case,	the	panel’s	findings	are	confidential.		24	M.R.S.	§	2857(1)	(2017).	
                                                                                          5	

complaint	in	the	Superior	Court	 against	Bangor	Surgical	 Associates,	P.A.,	and	

SJH,	alleging	medical	negligence.	

                                    II.		DISCUSSION	

	      [¶10]	 	 The	 appeal	 brought	 by	 Vanadia	 and	 SJH	 is	 interlocutory,	 in	 that	

McCain’s	post-screening	panel	medical	negligence	claim	has	not	yet	proceeded	

beyond	 the	 filing	 of	 a	 complaint.	 	 Therefore,	 we	 must	 initially	 determine	

whether	the	appellants	have	met	their	burden	of	“demonstrating	.	.	.	that	one	of	

the	exceptions	to	the	final	judgment	rule	justifies	our	reaching	the	merits	of	the	

appeal.”		Taylor	v.	Walker,	2017	ME	218,	¶	8,	173	A.3d	539	(alteration	omitted)	

(quotation	 marks	 omitted).	 	 If	 not,	 then	 the	 appeal	 “is	 not	 ripe	 for	 appellate	

review.”		Id.		Vanadia	and	SJH	assert	that	the	death	knell	and	collateral	order	

exceptions	to	the	final	judgment	rule	apply	here.		Because	we	conclude	that	the	

order	at	issue	is	no	longer	operative,	the	exceptions	do	not	apply.	

	      [¶11]		In	issuing	its	discovery	order	granting	McCain’s	motion	to	compel	

the	production	of	thirty	nonparty	operative	notes,	the	Superior	Court	acted	in	

a	limited	role	in	place	of	the	screening	panel	chair	as	part	of	the	screening	panel	

proceedings.		Gafner,	1999	ME	130,	¶	12,	735	A.2d	969;	see	24	M.R.S.	§	2852(6);	

M.R.	Civ.	P.	80M(e).		In	Gafner,	we	held	that	in	that	circumstance	

       [the	 court’s]	 actions	 are	 subject	 to	 the	 same	 provisions	 and	
       remedial	 limitations	 as	 those	 of	 the	 chair.	 	 The	 decisions	 of	 the	
6	

     panel	 chair,	 including	 its	 discovery	 rulings,	 are	 not	 subject	 to	
     appellate	 review.	 	 Consequently,	 ordinary	 discovery	 orders	
     entered	by	the	Superior	Court	in	matters	pending	before	the	panel	
     are	not	reviewable.	
     	
1999	ME	130,	¶	12,	735	A.2d	969	(citations	omitted).		However,	in	a	footnote,	

we	 recognized,	 but	 did	 not	 address,	 “the	 possibility	 that	 a	 judicial	 order	 in	 a	

panel	discovery	matter	related	to	issues	such	as	privilege	may	be	immediately	

subject	to	appellate	review.”		Id.	¶	12	n.4.	

	      [¶12]		Eight	years	later	we	revisited	Gafner,	holding	that	

      discovery	orders	that	are	entered	by	the	Superior	Court	while	the	
      matter	is	pending	before	a	prelitigation	panel	are	not	reviewable.		
      In	 Gafner,	 we	 reserved	 the	 issue	 as	 to	 whether	 the	 decision	 of	 a	
      judicial	officer	in	a	panel	discovery	matter	relating	to	an	issue	such	
      as	privilege	might	be	immediately	subject	to	appellate	review.		We	
      here	answer	that	reserved	question	in	part.		A	decision	upholding	
      a	 claim	 of	 privilege	 or	 confidentiality	 is	 not	 subject	 to	 appellate	
      review.	
      	
Estate	of	Cox	v.	E.	Me.	Med.	Ctr.,	2007	ME	15,	¶	6,	915	A.2d	418	(citation	omitted).		

We	 specifically	 did	 not	 answer	 the	 question	 that	 is	 presented	 in	 this	 case,	

namely	whether	a	decision	on	a	discovery	matter	denying	a	claim	of	privilege	

or	confidentiality	is	subject	to	immediate	appellate	review.		For	the	following	

reasons,	on	the	unique	and	very	specific	facts	and	circumstances	of	this	case,	

we	decline	to	answer	it	now.	
                                                                                            7	

	       [¶13]		As	noted	previously,	after	McCain	obtained	the	unusual	discovery	

order,	the	parties	elected	to	proceed	with	the	panel	hearing	before	Vanadia	and	

SJH	produced	the	records	that	the	court	had	ordered	to	be	disclosed.		Indeed,	

to	date,	we	understand	that	no	records	have	been	disclosed.		Had	the	parties	

and	the	panel	taken	the	step	of	scheduling	the	screening	panel	hearing	for	after	

the	receipt	of	the	court’s	discovery	order	and	our	consideration	of	that	order,	

we	may	well	have	been	called	upon	to	decide	the	question	left	unanswered	in	

Estate	of	Cox.		Now,	however,	the	case	has	moved	from	the	panel	phase	to	the	

trial	phase	without	any	nonparty	medical	records	having	been	produced,	and	

we	conclude	that	the	order	has	lost	its	vitality.		In	other	words,	in	these	unique	

circumstances,	and	on	this	record,	we	conclude	that	the	order	is	no	longer	the	

“law	 of	 the	 case”	 and	 has	 become	 a	 nullity	 without	 legal	 force	 or	 effect.	 	 See	

Chretien	v.	Chretien,	2017	ME	192,	¶	6,	170	A.3d	260	(“We	will	decline	to	hear	

a	 case	 that	 has	 lost	 its	 controversial	 vitality	 and	 is	 moot	 .	.	.	.”	 (alteration	

omitted)	(quotation	marks	omitted)).	

    	   [¶14]		We	acknowledge	that,	ordinarily,	the	Superior	Court’s	discovery	

order	would	be	effective	in	the	post-panel	proceeding.		As	24	M.R.S.	§	2857(3)	

(2017)	 provides,	 “in	 a	 subsequent	 Superior	 Court	 action	 all	 discovery	

conducted	 during	 the	 prelitigation	 screening	 panel	 proceedings	 is	 deemed	
8	

discovery	 conducted	 as	 a	 part	 of	 that	 court	 action.”	 	 In	 this	 case,	 however,	

because	 the	 parties	 allowed	 the	 panel	 hearing	 to	 move	 forward	 and	 to	 a	

conclusion	 without	 disclosure	 of	 the	 nonparty	 records,	 the	 records	 were	

apparently	deemed	not	sufficiently	relevant	to	the	plaintiff’s	case	in	the	panel	

process.		Moreover,	the	motion	for	reconsideration	was	 never	acted	upon	by	

the	judge	or	panel	chair,	and	the	assessment	of	the	relevance	of	the	records	may	

have	changed	as	the	litigation	 progressed.		 These	 unique	circumstances	lend	

additional	 weight	to	our	conclusion	that	the	discovery	order	was	rendered	a	

nullity	upon	the	conclusion	of	the	 panel	process.		Accordingly,	we	determine	

that	any	discovery	request	for	the	nonparty	records	at	issue	here,	if	still	sought	

by	the	plaintiff,	must	be	presented	anew	to	the	Superior	Court	for	an	analysis	

of	the	records’	relevance	and	whether	any	privilege	protects	them.	

      [¶15]	 	 Because	 the	 records	 were	 not	 provided	 and	 therefore	 not	

presented	 in	 the	 panel	 proceeding,	 we	 need	 not	 decide,	 and	 do	 not	 decide,	

whether	a	decision	of	a	judge	acting	as	panel	chair	that	compels	discovery	in	

the	face	of	a	claim	of	privilege	is	immediately	appealable.	

	     [¶16]	 	 Finally,	 because	 the	 order	 appealed	 from	 has	 become	 a	 nullity,	

neither	the	death	knell	nor	the	collateral	order	exception	to	the	final	judgment	

rule	applies	with	regard	to	the	merits	of	the	appeal.		Both	exceptions	require	
                                                                                          9	

that	 the	 party	 invoking	 the	 exception	 demonstrate	 an	 irreparable	 loss	 of	 the	

right	 claimed.	 	 See	 Taylor,	 2017	 ME	 218,	 ¶	 8,	 173	 A.3d	 539;	 In	 re	 Evelyn	A.,	

2017	ME	182,	¶	14,	169	A.3d	914	(stating	that	the	death	knell	exception	“allows	

a	party	to	appeal	an	interlocutory	order	immediately	if	substantial	rights	of	that	

party	 will	 be	 irreparably	 lost	 if	 review	 is	 delayed	 until	 final	 judgment”	

(quotation	 marks	 omitted));	 Bond	 v.	 Bond,	 2011	 ME	 105,	 ¶	 11,	 30	 A.3d	 816	

(stating	 that	 the	 collateral	 order	 exception	 applies	 when	 a	 court’s	 decision	

“would	 result	 in	 irreparable	 loss	 of	 the	 rights	 claimed,	 absent	 immediate	

review”	 (quotation	 marks	 omitted)).	 	 Vanadia	 and	 SJH	 cannot	 make	 the	

required	 showing	 concerning	 their	 claim	 that	 the	 nonparty	 operative	 notes	

must	be	protected	from	disclosure	because	no	records	were	actually	produced,	

nor	 will	 they	 be	 without	 further	 hearing	 and	 analysis	 by	 the	 Superior	 Court.		

Accordingly,	there	is	no	harm	or	threat	of	harm	to	an	important	right	that	would	

justify	 our	 immediate	 review	 of	 the	 merits.	 	 See	 Taylor,	 2017	 ME	 218,	 ¶	 8,	

173	A.3d	539.	

	      [¶17]		We	note	that	the	dissent	undertakes	to	address	substantive	issues	

raised	 by	 the	 appellants.	 	 See	 Dissenting	 Opinion	 ¶¶	 21-33.	 	 Because	 we	 are	

remanding	 this	 matter	 without	 reaching	 the	 merits	 of	 the	 appeal,	 we	 do	 not	

endorse	or	reject	the	conclusions	reached	by	the	dissent	on	those	issues.	
10	

	     The	entry	is:	

                    Remanded	 for	 further	 proceedings	 in	 the	
                    Superior	Court	consistent	with	this	opinion.	
                    	    	     	     	     	      	      	

ALEXANDER,	J.,	dissenting.	
	
    [¶18]		I	respectfully	dissent.	

      [¶19]		Medical	malpractice	actions	are	commenced	by	a	filing	of	a	notice	

of	claim	in	the	Superior	Court.		24	M.R.S.	§	2853(1)	(2017).		Those	actions	have	

a	medical	malpractice	screening	panel	phase,	24	M.R.S.	§§	2854-2858	(2017),	

but	they	remain	actions	pending	before	the	Superior	Court.		Because	the	parties	

addressed	the	question	thoroughly	with	the	Superior	Court,	and	the	Superior	

Court	entered	a	detailed	order	on	the	discovery	issue,	I	would	not	determine	

the	 order	 to	 have	 lost	 its	 vitality,	 notwithstanding	 the	 serious	 question	 of	

relevance	given	that	the	panel	proceeded	without	the	evidence	at	issue.		I	would	

reach	the	merits	and	vacate	the	order.	

      [¶20]	 	 That	 discovery	 order	 authorizes	 Dorothea	 McCain	 and	 her	

attorneys	 to	 launch	 a	 discovery	 fishing	 expedition,	 reviewing	 the	 medical	

records	 of	 at	 least	 thirty	 other	 innocent,	 unrelated	 individuals	 who	 have	

undergone	similar	procedures	performed	by	the	defendants.		Knowledge	that	

we	 have	 not	 addressed	 the	 merits	 of	 this	 order	 may	 invite	 others	 to	 launch	
                                                                                    11	

similar	fishing	expeditions,	hoping	to	bolster	a	client’s	case	by	prying	into	the	

private	medical	records	of	perhaps	hundreds	of	innocent,	unaware	individuals.	

      [¶21]	 	 The	 Superior	 Court’s	 order	 authorizes	 review	 of	 records	 of	

unnamed	and	unnotified	patients	in	violation	of	those	patients’	constitutional	

rights	to	privacy,	in	violation	of	privileges	established	in	our	Rules	of	Evidence,	

and	in	violation	of	numerous	state	and	federal	statutes	mandating	the	privacy	

of	patient	identities	and	the	confidentiality	of	medical	records.		See	infra	¶	30.	

      [¶22]	 	 Vanadia,	 his	 medical	 practice,	 and	 the	 hospital	 where	 the	

procedure	was	performed	all	have	standing	to	assert	the	constitutional	rights	

to	 privacy,	 the	 privileges	 against	 disclosure	 of	 communications	 relating	 to	

medical	 treatment,	 and	 the	 statutory	 rights	 of	 privacy	 and	 confidentiality	 on	

behalf	 of	 the	 unidentified	 and	 otherwise	 defenseless	 patients	 whose	 records	

are	sought	in	this	matter.		See	Field	&	Murray,	Maine	Evidence	§	503.3	at	227	

(6th	ed.	2007).	

	     [¶23]		Turning	to	the	merits	of	the	appeal,	we	have	not	yet	addressed	the	

question	presented	here:	whether	an	individual	claiming	improper	treatment	

by	a	medical	provider	may	obtain	access	to	records	of	other	patients	who	have	

received	 similar	 treatment	 from	 that	 medical	 provider	 to	 determine	 if	 those	

other	 patients’	 records	 might	 contain	 information	 to	 support	 the	 plaintiff’s	
12	

action.	 	 The	 implications	 of	 the	 Superior	 Court’s	 ruling	 for	 patients	 and	 the	

medical	community	that	serves	those	patients	are	vast.	

       [¶24]		Even	though	the	Superior	Court’s	order	has	become	ineffective	as	

a	 result	 of	 the	 Court’s	 determination	 that	 it	 is	 a	 nullity,	 the	 ruling	 remains	

unchanged.	 	 Therefore,	 that	 precedent,	 preliminary	 as	 it	 is,	 may	 serve	 as	 an	

invitation	for	others	to	seek	the	records	of	other	patients	to	see	what	might	be	

in	 those	 records	 to	 help	 the	 complainants’	 cases.	 	 Sometimes	 the	 invasion	 of	

rights	 of	 privacy	 and	 confidentiality	 of	 only	 a	 few	 patients	 may	 be	 involved,	

other	 times,	 with	 more	 common	 procedures,	 hundreds	 of	 records	 of	 other	

patients	may	be	sought.	

       [¶25]		Once	the	door	is	opened,	access	to	other	patients’	records	may	be	

obtained	by	complainants	unhappy	with	all	manner	of	treatments	including,	as	

a	 few	 examples,	 abortions,	 HIV	 infection	 therapies,	 or	 substance	 abuse	

treatments.	

       [¶26]		The	plaintiff	argues	that	the	identities	of	the	other	patients	would	

be	 protected	 by	 redacting	 the	 patient	 information	 to	 which	 they	 may	 have	

access.		How	those	records	would	be	redacted,	by	whom,	and	who	would	pay	

the	costs	for	recovery,	review,	and	redaction	of	perhaps	thousands	of	pages	of	

electronic	patient	records	is	unclear.		The	inquiring	party	likely	would	have	to	
                                                                                    13	

see	the	records	to	ensure	that	she	gets	the	information	that	a	court	has	ordered	

that	she	shall	have.	

      [¶27]		As	the	treatment	at	 issue	 necessarily	would	be	 identified	in	any	

records	 reviewed	 and	 provided,	 the	 likelihood	 of	 actual	 confidentiality	 of	

identification	of	patients,	at	least	in	smaller	Maine	communities	where	only	a	

few	treatments	may	be	provided	per	year,	would	be	uncertain.	

	     [¶28]		The	example	presented	by	this	case	is	particularly	troubling.		The	

plaintiff	is	seeking	access	to	the	medical	records	of	fifteen	as	yet	unidentified	

patients	who	received	similar	treatment	before	the	plaintiff’s	treatment	and	the	

medical	 records	 of	 fifteen	 as	 yet	 unidentified	 patients	 who	 received	 similar	

treatment	after	the	plaintiff’s	treatment.		Review	of	the	limited	information	in	

the	 file	 suggests	 that	 potentially	 identifying	 information	 related	 to	 each	

patient’s	 physical	 characteristics	 and	 health	 conditions	 may	 be	 important	 in	

determining	if	other	patients’	records	are	relevant	to	the	claim	of	negligence	for	

identifying	and	cutting	the	wrong	duct.	

      [¶29]	 	 The	 records	 that	 the	 trial	 court	 has	 ordered	 to	 be	 disclosed	

regarding	 patients	 who	 received	 treatments	 after	 the	 plaintiff’s	 treatment	

might	only	be	relevant	on	a	narrow	credibility	question.		That	question	would	

be	 whether,	 after	 the	 plaintiff’s	 treatment,	 the	 medical	 provider	 engaged	 in	
14	

subsequent	 remedial	 measures,	 see	 M.R.	 Evid.	 407,3	 to	 create	 the	 medical	

records—not	 the	 treatments	 but	 the	 medical	 records—to	 reflect	 differently	

how	events	during	the	procedure	were	reported.	

         [¶30]		There	are	several	statutes	and	rules	that	the	trial	court’s	mandate	

to	disclose	other	patients’	records	may	violate:	

      • Title	 42	 U.S.C.S.	 §	 1320d-6	 (LEXIS	 through	 Pub.	 L.	 No.	 115-185)	 of	 the	
        Health	Insurance	Portability	and	Accountability	Act	of	1996	(HIPAA),	and	
        implementing	regulations	published	at	45	C.F.R.	pts.	160	and	164	(2017),	
        paint	 with	 a	 very	 broad	 brush,	 mandating	 privacy	 of	 patient-specific	
        medical	information	and	confidentiality	of	medical	records.		The	statute	
        and	 implementing	 regulations	 are	 voluminous	 and	 complicated.	 	 No	
        exception	 to	 the	 mandated	 privacy	 and	 confidentiality	 is	 apparent	 that	
        would	 authorize	 an	 individual	 dissatisfied	 with	 medical	 treatment	 to	
        discover	the	redacted	or	unredacted	medical	records	of	others	who	have	
        received	similar	treatments	to	determine	if	those	records	might	include	
        some	information	to	support	a	negligence	claim.	
        	
      • The	Maine	statute	entitled	“[c]onfidentiality	of	health	care	information,”	
        22	M.R.S.	§	1711-C	(2017),	provides	similar	protection	for	patient	privacy	
        and	the	confidentiality	of	medical	records.		“An	individual’s	health	care	
        information	 is	 confidential	 and	 may	 not	 be	 disclosed	 other	 than	 to	 the	
        individual	by	the	health	care	practitioner	or	facility	except	as	provided	in	
        subsection	 3,	 3-A,	 3-B,	 6	 or	 11.”	 	 Id.	 §	 1711-C(2).	 	 None	 of	 the	 listed	
        subsections	authorize	the	court	mandated	access	to	individuals’	medical	
        records	at	issue	here.	
        	
      • Other	state	statutes	limiting	access	to	medical	records	regarding	physical	
        health	 conditions	 by	 persons	 other	 than	 the	 person	 being	 treated	 and	
        their	treatment	providers	include	5	M.R.S.	§§	200-E,	4572(2)	and	4573(2)	

   3		Pursuant	to	M.R.	Evid.	407,	evidence	of	subsequent	remedial	measures	is	inadmissible	to	prove	

negligence	and	culpability.		Neither	the	trial	court	nor	the	plaintiff	have	addressed	in	any	detail	how	
the	ordered	discovery	of	other	patients’	records	created	after	the	plaintiff’s	treatment	would	lead	to	
the	development	of	admissible	evidence.	
                                                                                       15	

     (2017).		These	statutes	may	apply	to	protect	the	medical	records	of	one	
     or	more	of	the	individuals	whose	 medical	records	the	plaintiff	seeks	in	
     this	case.		Many	other	statutes	limiting	disclosure	of	records	relating	to	
     mental	 health	 conditions	 may	 also	 apply	 to	 some	 medical	 records	 the	
     plaintiff	seeks.		See,	e.g.,	1	M.R.S.	§	402	(2017);	34-A	M.R.S.	§	1216	(2017);	
     34-B	M.R.S.	§	1207	(2017).	
     	
   • Maine	Rule	of	Evidence	503	gives	individual	patients	a	privilege	to	refuse	
     to	 disclose	 confidential	 communications	 made	 for	 the	 purpose	 of	
     diagnosing	 or	 treating	 medical	 conditions.	 	 Such	 communications	 are	
     indicated	in	McCain’s	medical	record,	which	she	asserts	are	similar	to	the	
     records	of	other	patients	that	she	wants	to	access.	
     	
     [¶31]	 	 The	 briefs	 of	 the	 parties	 cite	 to	 many	 opinions	 from	 other	

jurisdictions	 that	 reach	 differing	 results	 on	 whether	 plaintiffs	 in	 medical	

negligence	actions	may	discover	the	medical	records	of	other	patients	who	have	

had	similar	procedures	or	have	been	treated	by	the	same	medical	professional	

or	facility.		Some	of	those	opinions	indicate	that	if	the	medical	records	sought	

are	“redacted”—whatever	that	means—then	the	requested	discovery	of	other	

patients’	 medical	 records	 will	 be	 allowed.	 	 See,	 e.g.,	 Staley	 v.	 Jolles,	

230	P.3d	1007,	1013	(Utah	2010).		Few	of	those	opinions	indicate	how,	or	by	

whom,	 or	 at	 what	 cost,	 record	 search,	 review,	 and	 redaction	 will	 be	

accomplished.		And	few	of	those	opinions	seem	to	consider	how	easily	a	person	

may	 be	 identified	 by	 descriptive	 information	 in	 a	 record,	 even	 if	 the	 specific	

identifying	information	has	been	removed.	
16	

      [¶32]	 	 The	 contrary	 opinions	 of	 other	 jurisdictions	 refusing	 to	 allow	

discovery	of	other	patients’	records	to	see	if	they	might	contain	evidence	that	

might	support	a	particular	plaintiff’s	claim	have	the	better	argument.		See,	e.g.,	

Roe	 v.	 Planned	 Parenthood	 Sw.	 Ohio	 Region,	 912	 N.E.2d	 61,	 71	 (Ohio	 2009)	

(“Redaction	of	personal	information	.	.	.	does	not	divest	the	privileged	status	of	

confidential	 records.	 	 Redaction	 is	 merely	 a	 tool	 that	 a	 court	 may	 use	 to	

safeguard	 the	 personal,	 identifying	 information	 within	 confidential	 records	

that	have	become	subject	to	disclosure	either	by	waiver	or	by	an	exception.”).	

      [¶33]		Open-ended	fishing	expedition	discovery,	invading	other	patients’	

privacy	and	authorizing	review	of	confidential	medical	records	to	see	if	those	

records	contain	information	that	might	support	an	individual	plaintiff’s	medical	

negligence	claim,	violates	M.R.	Evid.	503	and	violates	federal	and	state	statutes	

mandating	patient	privacy	and	the	confidentiality	of	patients’	medical	records.		

We	 should	 reach	 the	 merits	 of	 this	 appeal	 applying	 exceptions	 to	 the	 final	

judgment	rule.		Reaching	the	merits,	for	the	reasons	discussed	above,	we	should	

vacate	 the	 Superior	 Court’s	 discovery	 order	 so	 that	 it	 cannot	 be	 enforced	 in	

pretrial	discovery	to	mandate	disclosure	of	other	patients’	confidential	medical	

records	potentially	leading	to	use	of	those	records	in	a	public	trial.	

	     	      	      	      	      	
                                                                                  17	

James	 F.	 Martemucci,	 Esq.,	 and	 Robert	 P.	 Hayes,	 Esq.	 (orally),	 Germani	
Martemucci	&	Hill,	Portland,	for	appellant	John	F.	Vanadia	
	
Mark	G.	Lavoie,	Esq.,	and	Jennifer	A.W.	Rush,	Esq.	(orally),	Norman,	Hanson	&	
DeTroy,	LLC,	Portland,	for	appellant	St.	Joseph	Hospital	
	
Benjamin	R.	Gideon,	Esq.,	and	Taylor	A.	Asen,	Esq.	(orally),	Berman	&	Simmons,	
P.A.,	Lewiston,	for	appellee	Dorothea	B.	McCain	
	
Karen	 Frink	 Wolf,	 Esq.,	 and	 Rachel	 M.	 Wertheimer,	 Esq.,	 Verrill	 Dana	 LLP,	
Portland	 for	 amici	 curiae	 Maine	 Hospital	 Association	 and	 Maine	 Medical	
Association	
	

Penobscot	County	Superior	Court	docket	number	CV-2016-117	
FOR	CLERK	REFERENCE	ONLY	
