MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2014 ME 22
Docket:   Aro-12-528
Argued:   June 11, 2013
Decided:  February 13, 2014

Panel:      SAUFLEY, C.J., and LEVY, SILVER, MEAD, and JABAR, JJ.
Majority:   SAUFLEY, C.J., and LEVY, and MEAD, JJ.
Dissent:    SILVER, and JABAR, JJ.


                           ESTATE OF VERA BOULIER

                                           v.

                         PRESQUE ISLE NURSING HOME



LEVY, J.

       [¶1] The Estate of Vera Boulier appeals from a judgment entered in the

Superior Court (Aroostook County, Hunter, J.) in favor of Presque Isle Nursing

Home (PINH), following a jury’s determination that PINH was not liable for

Boulier’s death, which resulted from a fall on PINH’s premises.            The Estate

contends that the court erred in excluding evidence of remedial measures taken by

PINH after Boulier’s fall, and in rejecting the Estate’s proposed jury instructions.

We affirm the judgment.

                                 I. BACKGROUND

A.     Boulier’s Fall on PINH’s Premises

       [¶2] This action arises from the death of Vera Boulier, who died at the age

of eighty-five as a result of injuries she sustained from a fall while she was a
2                          	  
	  
	  
resident at PINH. As it does for each resident in its care, PINH had developed a

care plan for Boulier, who had resided at the facility since 2006. A care plan is the

individualized “blueprint” that instructs PINH’s staff as to each resident’s needs.

The care plan PINH created for Boulier accounted for her high susceptibility to

falls and was regularly updated to reflect her condition and to inform PINH’s staff

of the level of assistance she required. On the morning of Boulier’s fall, her care

plan stated that she required “one assist” when going to and from the toilet.

                                                      [¶3]                                                      Boulier routinely left her bed several times per night to use the

bathroom, often without requesting assistance. Absent a physician’s order, PINH

cannot restrain its residents to prevent them from leaving their beds. Instead, it

uses automated bed alarms to alert the staff when a resident gets out of bed during

the night.

                                                      [¶4] Early in the morning of January 16, 2009, Wendy Charette1 was the

certified nurse’s aide (CNA) assigned to Boulier’s care. Charette heard Boulier’s

bed alarm sound, went to check on her, and found Boulier seated on the toilet in

the bathroom. This was a frequent occurrence for Charette, who had cared for

Boulier for approximately two years.                                                                                                                                                                                               Charette understood the “one assist”

directive in Boulier’s care plan to mean that when Boulier was using the toilet, the


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                     1
                                   At the time of the events giving rise to this case, Wendy Charette’s name was Wendy Poulin.



	  
                           	                                                                                                                                                                                                                            3
	  
	  
attending CNA was to stay in the vicinity of the bathroom and assist Boulier as

necessary while also respecting her privacy.

                                                      [¶5] When she found Boulier in the bathroom on the morning of January 16,

Charette did not have sanitary gloves on her person or immediately within reach.

Charette asked Boulier to stay where she was so that Charette could retrieve a pair

of gloves. Boulier nodded, and Charette stepped out of the bathroom to retrieve

gloves from a dispenser located approximately five to six feet from the entrance to

the bathroom. While Charette was retrieving the gloves, Boulier fell and struck her

face on a trashcan, sustaining a serious laceration.                                                                                                                                                                               Boulier was immediately

hospitalized, and died from her injuries about one week later.2

B.                                                    Notice of Claim and Prelitigation Screening Panel

                                                      [¶6] In May 2009, Boulier’s estate commenced an action against PINH for

professional negligence in accordance with the Maine Health Security Act

(MHSA), 24 M.R.S. §§ 2501-2987 (2009).3 As required by the MHSA, the Estate

filed a notice of claim in the Superior Court naming PINH as the defendant. See

24 M.R.S. § 2903(1)(A). The notice of claim asserted that PINH “negligently

treated” Boulier; “that the negligence consists of, but is not limited to leaving . . .

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                     2
                                   The parties stipulated that Boulier died as a result of complications from her fall.
                     3
      The Maine Health Security Act, 24 M.R.S. §§ 2501-2987 (2009), has since been amended in ways
not relevant to the disposition of this appeal. See, e.g., P.L. 2011, ch. 190, § 1 (effective Sept. 28, 2011)
(codified at 24 M.R.S. § 2502(1-A) (2013)).



	  
4                          	  
	  
	  
Boulier alone in the bathroom”; and that PINH’s negligence caused Boulier’s

death.

                                                      [¶7] The Estate presented its case to a mandatory prelitigation screening

panel, in accordance with 24 M.R.S. § 2854(1).4                                                                                                                                                                                    Although the record does not

definitively establish the theories of liability that the Estate presented to the

screening panel, it does establish that the panel reviewed the deposition transcript

of Sandra LaPorte, R.N., the Estate’s expert witness. In her deposition, LaPorte

expressed criticism regarding Charette leaving Boulier alone in the bathroom, and

PINH failing to have gloves or a call bell available in Boulier’s bathroom. When

counsel for PINH asked LaPorte if she had any other criticisms of the care PINH

provided to Boulier, LaPorte responded that she could not answer the question

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                     4
                                   Title 24 M.R.S. § 2854(1) provides:

                                                          Procedure. The claimant or a representative of the claimant shall present the case
                                                      before the panel. The person accused of professional negligence or that person’s
                                                      representative shall make a responding presentation. Wide latitude must be afforded the
                                                      parties by the panel in the conduct of the hearing including, but not limited to, the right of
                                                      examination and cross-examination by attorneys. Depositions are admissible whether or
                                                      not the person deposed is available at the hearing. The chair shall make all procedural
                                                      rulings and those rulings are final. The Maine Rules of Evidence do not apply. Evidence
                                                      must be admitted if it is the kind of evidence upon which reasonable persons are
                                                      accustomed to rely in the conduct of serious affairs. The panel shall make such findings
                                                      upon such evidence as is presented at the hearing, the records and any expert opinions
                                                      provided by or sought by the panel or the parties.

                                                           After presentation by the parties, as provided in this section, the panel may request
                                                      from either party additional facts, records or other information to be submitted in writing
                                                      or at a continued hearing, which continued hearing must be held as soon as possible. The
                                                      continued hearings must be attended by the same members of the panel who have sat on
                                                      all prior hearings in the same claim, unless otherwise agreed by all parties.



	  
                           	                                                                                                                                                                                                      5
	  
	  
without knowing whether Charette “[had] the information that she needed to

provide the care to Ms. Boulier.” Counsel for PINH responded that he would

“include that in our list that we’ve been making as we go along here.”

                                                      [¶8] Following the presentation of the evidence, the screening panel made

findings regarding liability pursuant to 24 M.R.S. § 2855(1) that are not part of the

record.

C.                                                    PINH’s Motion in Limine

                                                      [¶9]                                                      Following the screening panel’s determination, the Estate filed a

complaint in the Superior Court alleging PINH’s negligence and requesting a jury

trial. Prior to trial, PINH filed a motion in limine to exclude evidence that it had

installed glove dispensers in its residents’ bathrooms after Boulier’s fall occurred.

PINH stated in its motion that, at trial, it would not controvert the feasibility of

installing glove dispensers. The court granted PINH’s motion on the ground that

evidence regarding the installation of glove dispensers in the bathroom of each

resident constituted inadmissible evidence of subsequent remedial measures

pursuant to M.R. Evid. 407.5

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                              5
                                            Maine Rule of Evidence 407 provides, in relevant part:

                                                                            SUBSEQUENT REMEDIAL MEASURES; NOTIFICATION OF DEFECT

                                                         (a) Subsequent remedial measures. When, after an injury or harm allegedly caused by
                                                      an event, measures are taken that, if taken previously, would have made the injury or
                                                      harm less likely to occur, evidence of the subsequent measures is not admissible to prove
	  

	  
6                          	  
	  
	  
D.                                                    Jury Trial

                                                      [¶10]                                                               A jury trial was held in September 2012.                                                                                                                                                                                                                                                                                                                                                                                    At trial, the Estate

introduced in evidence an incident report composed by PINH shortly after

Boulier’s fall. The report briefly described how Boulier’s fall occurred. Although

the original report recited that, after Boulier’s fall, PINH installed glove dispensers

in its residents’ bathrooms and instructed its staff to carry gloves, that information

was redacted from the report entered in evidence.6

                                                      [¶11] In its opening statement, the Estate told the jury that the issues for its

consideration would be the conduct of Wendy Charette and whether gloves should

have been more readily available to her:

                                                          The dispute is over . . . what was the standard of care when Wendy
                                                      Charette, the CNA, discovered Vera alone by herself on the toilet.
                                                      Number one, should there have been gloves already in the bathroom
                                                      so she wouldn’t have to leave Vera? Number two, if gloves weren’t
                                                      in the bathroom, should she have had them with her? And, number
                                                      three, even if there were no gloves there in the bathroom, should the
                                                      CNA have left Vera by herself even for a short period of time?

                                                      ....


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                                                      negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a
                                                      need for a warning or instruction. This rule does not require exclusion of evidence of
                                                      subsequent measures when offered for another purpose such as proving ownership,
                                                      control or feasibility of precautionary measures, if controverted, or impeachment.
                                                                            	  
                     6
      Although the court’s earlier order granting PINH’s motion in limine only excluded the evidence
related to the glove dispensers, some of the redacted material related to PINH’s instruction to its staff to
carry gloves. The transcript does not reflect how the redaction was effected, and the Estate does not
allege as error the breadth of the redaction.



	  
       	                                                                                   7
	  
	  
                  [The defendant’s expert witness] will tell you that in her opinion, it
              wasn’t [a] deviation from the standard [of] care or it wasn’t
              negligence for, number one, the CNA to leave the bathroom, and it
              wasn’t negligent for them not to have gloves in the bathroom. . . .	  	  
              [T]hat’s going to be the primary dispute that you are going to be asked
              to adjudicate in this case or make a decision about.

              [¶12]   Consistent with the Estate’s opening statement, the bulk of the

Estate’s case-in-chief focused on these theories of negligence. However, the Estate

also elicited testimony regarding the importance of clearly communicating patient

care plans to CNAs. Charette testified that, at the beginning of each shift, she

received a shift report indicating any changes in a patient’s care plan. The Estate’s

expert witness, Sandra LaPorte, testified that shift reports like the one Charette

described are critical to effectively communicating a patient’s care plan to the

CNAs on duty. LaPorte did not identify any other strategies a nursing home

should employ in communicating its care plans to its staff, nor did she identify any

way in which PINH deviated from the applicable standard of care when it

communicated Boulier’s care plan to Charette.

              [¶13] At trial, the Estate also sought to revisit the issue of whether the court

should exclude evidence that, shortly after Boulier’s fall, PINH installed glove

dispensers in the bathrooms of its residents and instructed its staff to carry gloves.

Consistent with PINH’s concession to the court in its earlier motion in limine,

PINH’s Director of Nursing testified at trial that it was feasible to install glove



	  
8      	  
	  
	  
dispensers in residents’ bathrooms and to require staff to carry gloves. Later in the

trial, when the Estate questioned Charette regarding her decision not to carry

gloves, Charette responded that it was an individual decision based on her concern

that carrying gloves could spread infection. Following Charette’s response, the

Estate argued that Charette’s testimony “raises a feasibility argument that

resurrects a subsequent remedial measure issue” and that the court should admit

the evidence of subsequent remedial measures PINH took after Boulier’s fall. The

court denied the request.

              [¶14] At the close of evidence, the court indicated that its jury instructions

would direct the jury to focus on whether Charette was negligent in leaving Boulier

alone in the bathroom while she retrieved gloves. The Estate objected, requesting

an instruction that would also allow the jury to find that PINH was liable because it

had negligently communicated Boulier’s care plan to Charette:

              [W]e would seek to have the instruction just be general in terms of the
              conduct of the Presque Isle Nursing Home as the defendant, which
              would include Miss Charette’s conduct, but also the issue of whether
              or not clear and concise communication of the care plan was
              transmitted down the line to the CNAs on the line.

The Estate did not object to the fact that the court’s instruction did not encompass

the Estate’s other theory of the case—that PINH was liable because it should have

had gloves more readily available to Charette at the time of Boulier’s fall.




	  
                           	                                                                                                                                                                                                                       9
	  
	  
                                                      [¶15]                                                                 Despite the Estate’s objection to the exclusion of its negligent

communication theory from the instruction, the court declined to broaden the jury

instruction. Relying on our decision in Levesque v. Central Maine Medical Center,

2012 ME 109, 52 A.3d 933, the court reasoned that the jury should not be

instructed to consider the negligent communication theory of liability because the

Estate did not present that theory to the prelitigation screening panel or allude to it

in its notice of claim. Thus, the court instructed the jury to focus on the question of

whether Charette was negligent.7 The jury returned a verdict in favor of PINH.

                                                                                                                                                                                                                                   II. DISCUSSION

                                                      [¶16] The Estate challenges (A) the court’s exclusion of evidence of the

subsequent remedial measures PINH took after Boulier’s fall, and (B) the court’s

rejection of the Estate’s proposed jury instruction related to PINH’s alleged

negligent communication of Boulier’s care plan. We consider each contention in

turn.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                     7
       The court’s instructions to the jury included the following language limiting PINH’s potential
liability to that which it sustained through the actions of Charette:

                                                         The plaintiff has made a claim against the Presque Isle Nursing Home. You should
                                                      understand that this claim is based upon the conduct of its employee, Wendy Charette.
                                                      Under Maine law, an employer such as the Presque Isle Nursing Home is responsible for
                                                      the negligent acts of its employees committed during the course of their employment. . . .
                                                      In order to prevail against the Presque Isle Nursing Home . . . the plaintiff must prove that
                                                      the Presque Isle Nursing Home, acting through its employee Wendy Charette, was
                                                      negligent . . . . If the plaintiff fails to prove by a preponderance of the evidence that
                                                      Wendy Charette was negligent, then the defendant is entitled to your verdict.




	  
10 	  
	  
	  
A.        Exclusion of Evidence of Subsequent Remedial Measures

          [¶17] The Estate contends that the court erred in excluding evidence that,

following Boulier’s fall, PINH installed glove dispensers and advised its staff to

carry gloves.      The Estate contends that the court should have admitted this

evidence because PINH controverted the feasibility of these measures at trial

through the testimony of Wendy Charette.

          [¶18] We review a decision to exclude evidence for an abuse of discretion.

Levesque, 2012 ME 109, ¶ 16, 52 A.3d 933. Maine Rule of Evidence 407(a)

provides that “[w]hen, after an injury or harm allegedly caused by an event,

measures are taken that, if taken previously, would have made the injury or harm

less likely to occur, evidence of the subsequent measures is not admissible to prove

negligence.” However, “[t]his rule does not require exclusion of evidence of

subsequent measures when offered for another purpose such as proving . . .

feasibility of precautionary measures, if controverted.” Id.

          [¶19] A defendant does not controvert the feasibility of remedial measures

when, after conceding feasibility before trial, the issue arises only as a result of a

plaintiff’s attempt to elicit testimony on the issue. For example, in Albrecht v.

Baltimore & Ohio Railroad Co., 808 F.2d 329, 331-32 (4th Cir. 1987), a defendant

conceded the feasibility of remedial measures before trial, and the issue of

feasibility arose only upon the plaintiff’s examination of a witness. The Court of


	  
       	                                                                              11
	  
	  
Appeals for the Fourth Circuit ruled that the court erred in nonetheless admitting

evidence of remedial measures because feasibility was “not in issue at trial until

the plaintiff began questioning the witness explicitly on these measures.” Id. at

331. The court reasoned that “[i]t is not for the plaintiff to put feasibility in issue,

for feasibility is not in issue unless and until controverted by the defendant.” Id.

              [¶20] Here, PINH conceded the feasibility of installing glove dispensers in

its motion in limine. PINH further conceded feasibility at trial when its Director of

Nursing testified that there was no reason why there could not have been gloves

available in Boulier’s bathroom or why Charette could not have had gloves with

her. The only testimony that raised a question as to feasibility surfaced when the

Estate elicited testimony from Charette concerning her decision not to carry

gloves, to which Charette responded that her decision was a means of preventing

the spread of infection. However, the Estate could not create an issue regarding

the feasibility of subsequent remedial measures solely by eliciting testimony on the

issue. See id. at 331-32; see also Werner v. Upjohn Co., Inc., 628 F.2d 848, 853

(4th Cir. 1980) (“Federal Rule of Evidence 407, which enacts the common law rule

excluding subsequent remedial measures to prove negligence, does, however,

permit evidence of subsequent remedial measures to be used to prove

the feasibility of such measures, but only if feasibility is controverted by the

defendant.” (emphasis added)). Because PINH did not controvert the feasibility of


	  
12 	  
	  
	  
installing glove dispensers in its residents’ bathrooms or requiring that staff carry

gloves, the court did not abuse its discretion by excluding, pursuant to

M.R. Evid. 407, the evidence of PINH’s subsequent remedial measures.                                                                                                                                                               See

Levesque, 2012 ME 109, ¶ 16, 52 A.3d 933.

B.                                                    The Court’s Jury Instructions

                                                      [¶21] The Estate also contends that it was entitled to a jury instruction on

whether PINH was liable for negligently communicating Boulier’s care plan to

Charette.8 Specifically, the Estate contends that our opinion in Levesque v. Central

Maine Medical Center, which interpreted the prelitigation screening requirement

of the MHSA, did not preclude the court from issuing the instruction.                                                                                                                                                              See

id. ¶¶ 17-25.                                                                                                                      Although we agree with the Estate that the court erred in its


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                     8
      We do not consider the Estate’s additional contention, raised for the first time at oral argument, that
it was also entitled to an instruction that would have allowed the jury to consider whether PINH was
negligent in failing to have gloves more readily available to Charette at the time of Boulier’s fall. At trial,
the Estate objected to the court’s jury instructions solely on the ground that by instructing the jury to
focus exclusively on Charette’s conduct, the instructions did not permit the jury to find PINH liable for
negligently communicating Boulier’s care plan to Charette. Because the objection did not direct the court
to consider whether the instruction should include the issue of the availability of gloves, the issue was not
preserved for appellate review. See Morey v. Stratton, 2000 ME 147, ¶ 9, 756 A.2d 496 (“[T]o properly
preserve a challenge to a jury instruction, a party . . . must state distinctly the ground for the objection. A
failure to direct the court’s attention to the challenged language of a jury instruction or to offer a more
acceptable version may render the objection inadequate to preserve the issue for appeal.” (quotation
marks omitted)). Similarly, on appeal, the Estate’s brief was limited to the issue of whether the court
should have issued a broader instruction allowing the jury to find PINH liable on a negligent
communication theory, and did not raise as error the court’s failure to issue an instruction that would have
allowed the jury to find PINH liable for failing to have gloves more readily available. As such, the Estate
did not preserve the issue for appeal. See Woodworth v. Gaddis, 2012 ME 138, ¶ 13 n.6, 58 A.3d 1109
(citing Laqualia v. Laqualia, 2011 ME 114, ¶ 34, 30 A.3d 838, for the proposition that arguments not
developed in the appellate brief are waived).




	  
       	                                                                               13
	  
	  
application of Levesque, the court did not err in refusing to instruct the jury on the

theory of negligent communication.

              [¶22] Before filing a complaint for professional negligence, a claimant must

submit her claims to a prelitigation screening panel. See 24 M.R.S. § 2903(1)(B).

The panel exists to encourage the early resolution of meritorious claims and the

“early withdrawal or dismissal of nonmeritorious claims.” 24 M.R.S. § 2851(1).

The panel must hold a hearing and receive evidence, see 24 M.R.S. § 2854, and

ultimately determine whether the plaintiff proved “negligence and proximate

causation by a preponderance of the evidence,” 24 M.R.S. § 2855(2)(A). If the

panel’s findings are unanimous and unfavorable to the defendant on both of these

questions, or are unanimous and unfavorable to the plaintiff on either of them, then

they are admissible as evidence in subsequent court proceedings on the claim.

24 M.R.S. §§ 2857(1)(B)-(C), 2858(2).

              [¶23] In Levesque, we concluded that the trial court erred in permitting the

jury to consider the issue of whether a particular physician was negligent, where

the plaintiff acknowledged that it had not named the doctor as a defendant in its

notice of claim and did not present the prelitigation screening panel with evidence

that the doctor acted negligently. 2012 ME 109, ¶¶ 18-25, 52 A.3d 933. In

contrast with Levesque, here, the Estate named PINH as a defendant in its notice of

claim, and the record indicates that the Estate presented the panel with evidence in


	  
14 	  
	  
	  
support of its assertion that PINH was negligent. No more is required in order to

preserve negligence as a basis of liability following the completion of the

prelitigation screening process. Because there is no record made of proceedings

before the prelitigation screening panel, a plaintiff is not required to prove that they

presented a specific theory of negligence against a named defendant before the

panel in order to preserve that specific theory for presentation at a latter trial.

          [¶24] Nevertheless, we conclude that the court properly denied the Estate’s

proposed jury instruction on the theory of negligent communication, albeit for a

different reason than that articulated by the court. See L. Ray Packing Co. v.

Commercial Union Ins. Co., 469 A.2d 832, 834 (Me. 1983) (“Where the legal

reasoning of a court is incorrect, however, its judgment will be affirmed on appeal

if its ultimate conclusion is correct in law.”).         To receive a proposed jury

instruction, a plaintiff must show, among other things, that the instruction was

generated by the evidence at trial. See Kezer v. Cent. Me. Med. Ctr., 2012 ME 54,

¶ 26, 40 A.3d 955.        To generate an instruction in an action for professional

negligence, the plaintiff must provide sufficient evidence of “the appropriate

standard of care . . . that the defendant deviated from that standard, and . . . that the

deviation caused the plaintiff’s damages.” Graves v. S.E. Downey Registered Land

Surveyor, P.A., 2005 ME 116, ¶ 10, 885 A.2d 779.




	  
                            	                                                                                                                                                                                                     15
	  
	  
                                                      [¶25] Here, the only evidence the Estate presented at trial relating to the

standard of care that a nursing home must employ in communicating its patient

care plans to its staff was LaPorte’s expert testimony that CNAs must receive

updates when beginning a shift. However, Charette’s undisputed testimony was

that she regularly received these “shift reports.” Thus, the Estate failed to provide

any evidence that PINH deviated from the standard of care it owed Boulier in the

manner it communicated her care plan to Charette.9 Because the evidence did not

generate an instruction on the Estate’s theory of negligent communication, there

was no error in the court’s refusal to instruct the jury on the issue. See Kezer,

2012 ME 54, ¶ 26, 40 A.3d 955.

                                                      The entry is:

                                                                                                                                                                    Judgment affirmed.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                     9
      The dissenting opinion’s assertion that the negligent communication theory was otherwise generated
by evidence that established the importance of the care plan overlooks the fact that the Estate did not
introduce evidence that the care plan was negligently communicated to the nursing staff. Indeed, the
Estate’s expert witness, Sandra LaPorte, testified that the care plan “clearly communicated” the need for
the CNA to remain with Boulier in the bathroom, and there was no factual dispute that the care plan had
been communicated to Wendy Charette. Further, neither LaPorte nor any other witness was asked what
the standard of care is for communicating a care plan or whether PINH violated that standard in this case.
Contrary to the dissenting opinion’s characterization of the evidence, the Estate’s argument at trial was
that Charette failed to follow the care plan, not that it had been negligently communicated to her.
                     	  



	  
16 	  
	  
	  
SILVER, J., with whom JABAR, J., joins, dissenting.

          [¶26] I respectfully disagree with the Court’s conclusion that the trial court

properly excluded evidence of subsequent remedial measures. More importantly, I

disagree with the Court’s finding that the evidence presented at trial failed to

generate the Estate’s requested jury instruction concerning PINH’s negligent

communication of Vera Boulier’s care plan. The Estate presented evidence of

PINH’s negligence⎯independent of Wendy Charette’s individual actions⎯and

requested appropriate jury instructions. The trial court denied the Estate’s request

for these instructions based on its misinterpretation of Levesque v. Central Maine

Medical Center, 2012 ME 109, 52 A.3d 933, thereby precluding the jury from

considering one of the Estate’s most significant theories of liability.

A.        Subsequent Remedial Measures

          [¶27] First, I disagree with the Court’s analysis and conclusion that the trial

court did not abuse its discretion by excluding evidence that PINH instructed

nurses to carry gloves following Boulier’s accident. Rule 407 permits admission

of evidence of subsequent remedial measures for the purpose of demonstrating the

feasibility of those measures once a party has controverted feasibility.

M.R. Evid. 407(a).        The rule also permits admission of such evidence for

impeachment purposes. Id.




	  
       	                                                                            17
	  
	  
              [¶28] The Court’s observation that the feasibility of requiring nurses to

carry gloves was addressed and conceded before trial is simply incorrect. PINH’s

motion in limine sought specifically to exclude evidence that PINH installed glove

dispensers in residents’ bathrooms after Boulier’s fall, and indicated that the

nursing home would not controvert the feasibility of mounting such dispensers.

The parties’ pretrial motions contain no mention of the feasibility of instructing

nurses to carry gloves. It is therefore inaccurate to say that PINH unequivocally

conceded feasibility of this remedial measure.              Consequently, Albrecht v.

Baltimore & Ohio Railroad Co., 808 F.2d 329 (4th Cir. 1987) is not instructive.

              [¶29]   The Court also asserts that the Estate elicited the only evidence

concerning infection control as a reason not to carry gloves. Court’s Opinion ¶ 20.

PINH makes a similar assertion in its brief. However, it is simply untrue. The

Estate asked Charette on direct examination whether the decision not to carry

gloves was her own personal decision. In response, she stated that she felt it was

an infection control issue.            The Estate’s follow-up consisted of clarifying

Charette’s answer and establishing that Charette made this decision on her own,

without any direction from PINH. On cross-examination, however, PINH pressed

the issue, even going so far as to elicit highly prejudicial and only tangentially

relevant testimony that Boulier had MRSA⎯an infection which PINH’s counsel

characterized in front of the jury as “not something you want to have”⎯to bolster


	  
18 	  
	  
	  
Charette’s explanation. Once this information had been elicited, the Estate on

redirect further questioned Charette about her decision not to carry gloves. It was

not until Charette’s entire testimony had concluded that the Estate argued to the

trial court that the feasibility of the practice of carrying gloves had been

controverted.

          [¶30]   Charette’s testimony effectively controverted the feasibility of

requiring nurses to carry gloves. The specific issue of infection control was first

raised in a nonresponsive answer to the Estate’s question about whether the

decision not to carry gloves was Charette’s own. Her statements were not a

blanket denial of liability. On the contrary, she gave a specific explanation as to

why these measures were not undertaken. Even though she testified that she made

the decision without consulting any of her supervisors at PINH, her testimony

indicated to the jury that, as a PINH employee, she did not carry gloves on her

person because it would be unsafe to do so. PINH played a significant role in

unnecessarily elaborating on this testimony, and the bulk of the Estate’s

questioning on the issue occurred on redirect examination. Rule 407 explicitly

permits the Estate to refute Charette’s assertions and to demonstrate that it would,

in fact, have been feasible for nurses to carry gloves.

          [¶31] At the very least, the trial court should have admitted evidence of the

directive for the limited purpose of impeaching Charette. Her testimony left the


	  
       	                                                                                19
	  
	  
jury with the false impression that carrying gloves posed a serious health threat.

PINH’s swift response to Boulier’s fall, directing all nurses to carry gloves with

them at all times, indicates that quite the opposite is true. The prejudice resulting

from this error was somewhat alleviated when one of PINH’s witnesses testified

that carrying gloves would not create a risk of spreading infection as long as nurses

followed appropriate precautions. Nevertheless, the exclusion of evidence that

PINH nurses were instructed to carry sanitary gloves soon after Boulier’s fall was

an abuse of discretion.

B.            Jury Instructions

              [¶32] As the Court explains, the trial court improperly denied the Estate’s

proposed jury instruction based on its misapplication of Levesque. I disagree,

however, with the Court’s conclusion that the Estate was not entitled to its

requested instruction.

              On review, a party may establish entitlement to a proposed jury
              instruction only where the instruction was requested and not given by
              the court and it: (1) states the law correctly; (2) is generated by the
              evidence in the case; (3) is not misleading or confusing; and (4) is not
              otherwise sufficiently covered in the court’s instructions.

Kezer v. Cent. Me. Med. Ctr., 2012 ME 54, ¶ 26, 40 A.3d 955 (quotation marks

omitted). The Estate’s proposed jury instruction states the law correctly and is not

misleading or confusing. The trial court’s instructions did not sufficiently cover

the Estate’s proposed instruction, because the court’s instructions did not permit


	  
20 	  
	  
	  
the jury to consider PINH’s liability for negligently communicating the care plan.

Thus, the Estate was entitled to its proposed instruction if it requested the

instruction and if the evidence presented at trial generated the instruction.

          [¶33] As the Court notes in its majority opinion, the Estate clearly requested

instructions involving the communication of the care plan. On the record, the

Estate made the following request:

          [T]his claim of the nursing home’s negligence has been there from
          day one. The defendant has always been the Presque Isle Nursing
          Home. All of the conduct that led up to Vera Boulier being left alone
          in the bathroom and falling has been fully litigated and should be able
          to be presented and argued to the panel.

          [¶34] However, the Court finds that the Estate was not entitled to the

requested instruction because it did not present sufficient evidence at trial to

generate the instruction. Court’s Opinion ¶ 25. I disagree. An instruction is

generated if it “appears to be supported by the facts of the case.”             Mixer v.

Tarratine Mkt., 1999 ME 27, ¶ 6, 724 A.2d 614. As the Court discusses, to

generate the requested instruction regarding PINH’s professional negligence, the

Estate needed to present sufficient evidence of the appropriate standard of care,

evidence that the defendant deviated from that standard, and evidence that the

deviation caused the plaintiff’s damages. Court’s Opinion ¶ 24. The facts of this

case support each of these elements, at least to the extent necessary to generate the

requested instructions.


	  
       	                                                                               21
	  
	  
              [¶35] On the issue of the appropriate standard of care, the Court notes that

the Estate presented testimony that updates to a resident’s care plan must be

communicated to the nurses when they begin their shifts. Court’s Opinion ¶ 25.

However, this was not the only evidence of the relevant standard of care. The

Estate established at trial that PINH’s Director of Nursing or another registered

nurse creates a care plan for each patient based on the individual patient’s needs

and difficulties. This plan is revisited and updated as the patient’s needs change.

The care plan is intended to communicate the patient’s needs to other nurses,

including CNAs, who work with the patient. Jeanne Delicata, PINH’s expert

witness, testified that it was “absolutely” critical that the care plan be clearly

communicated down the line, and that the key to implementation of the care plan is

clear communication of the plan to the LPNs, who are the charge nurses on each

shift.         Further, she testified that it is critical that the care plan be clearly

communicated so that a CNA can follow the plan without attempting to

individually assess what type of care the patient requires.             This guidance is

necessary because, as Sandra LaPorte, the Estate’s expert witness, testified, CNAs

“do not possess the education level or ability” to independently make the types of

decisions provided for in the care plan. LaPorte also testified that it is extremely

important that the individual items of a care plan be clearly communicated down




	  
22 	  
	  
	  
the hierarchy of nurses to the CNAs who provide hands-on care, and that the daily

shift report was one of the requirements in place to facilitate this.

          [¶36] The Estate presented evidence from which a jury could conclude that

PINH failed to meet this standard of care. Charette testified that she would refer to

the actual care plan only if any changes were brought to her attention. Further, she

explained that CNAs were each provided with an assignment card, which

condensed specific information from the care plan, and that these cards informed

her of what she needed to do as a CNA to care for the resident. Charette explained

that the care plan itself contained more detailed information than was reflected on

the assignment cards, and it also included information that was outside of her

medical expertise. She testified that nobody ever told her specifically where she

was supposed to stand or be with Boulier when Boulier was in the bathroom, and

that there were no training sessions during which the care plan was explained or

taught to her. It was her understanding that she was supposed to stay in the area of

the bathroom because the care plan did not specify that she needed to physically

stay with Boulier in the bathroom. On the other hand, LaPorte testified that the

language of the care plan clearly required that a staff person needed to remain with

Boulier in the bathroom.

          [¶37] Based on this testimony, the jury could have concluded that the

standard of care requires clear communication of the care plan, and that the care


	  
       	                                                                                  23
	  
	  
plan required a staff person to remain in the bathroom with Boulier at all times.

Charette testified that she regularly received updates when coming on shift; she

also testified that these reports typically included only changes to the care plan.

Further, she testified that she did not understand the care plan to require that she

stay in the bathroom, that nobody ever told her where she was supposed to be

when Boulier was in the bathroom, and that she had not been trained in the

meaning of the care plan. From this evidence, a jury could have concluded that

Charette did not understand the care plan because PINH failed to clearly

communicate the meaning of the plan to her.

              [¶38] Finally, this evidence was sufficient to establish a potential causal link

between the alleged negligent communication of the care plan and Boulier’s

injuries. The Estate argued throughout the trial that Charette’s distance from

Boulier contributed to Boulier’s fall and resulting injuries. Specifically, in its

opening statement, the Estate explained:

                     [I]t is critically important, you will hear, that the chain of
              communication from this care plan be clear and concise all the way
              down the line to the licensed practical nurse and the CNAs. They
              have to know what the care plan means and what they are supposed to
              do in any given situation that they come across with a patient . . . The
              reasonable alternative for the nurse should have been⎯she should
              have been instructed that if she found Vera in such a position, use the
              call bell and call button in the bathroom and call for help, have
              somebody come in . . . Because leaving her alone dramatically
              increased the risk that the inevitable was going to happen and she was
              going to fall.


	  
24 	  
	  
	  

          [¶39] If the jury believed that the care plan required Charette to stay with

Boulier in the bathroom, that PINH did not adequately communicate this

requirement, and that Charette’s distance from the bathroom resulted in Boulier’s

injuries, then the jury could have found PINH liable for negligent communication

irrespective of whether Charette was individually at fault. However, the jury was

not even allowed to consider this theory of liability because the trial court

misapplied Levesque and inappropriately analyzed the Estate’s request for the

instruction concerning PINH’s liability. See Court’s Opinion ¶¶ 21-23. As a result

of the trial court’s error, the jury was required to review Charette’s negligent

conduct in isolation, disregarding a substantial portion of the Estate’s case.

          [¶40] The Court suggests that the Estate failed to argue at trial that the care

plan had been negligently communicated.             Court’s Opinion ¶ 25 n.9.       This

observation overlooks that the trial court’s ruling on jury instructions, made prior

to closing arguments, foreclosed this argument. Although PINH’s defense strategy

was to focus exclusively on Charette’s actions in the context of her relationship

with Boulier, the Estate, both in its opening statement and throughout its

examination of witnesses at trial, emphasized PINH’s responsibility to clearly

communicate the care plan. Accordingly, the Estate was entitled to its requested

jury instruction.



	  
       	                                                                             25
	  
	  
C.            Prejudicial Error

              [¶41]   Where, as here, a party properly preserves an objection to jury

instructions, an error in the instruction is reversible if it results in prejudice.

Wahlcometroflex, Inc. v. Baldwin, 2010 ME 26, ¶ 14, 991 A.2d 44. In this case,

the court’s failure to provide properly requested instructions about PINH’s

potential liability for negligent communication of the care plan resulted in obvious

prejudice to the Estate. The trial court deprived the Estate of the opportunity to

have the jury consider one of its primary arguments for liability. In light of the

limited instructions the jury received, the verdict indicates only that the jury

concluded that Charette did not act negligently given the situation she was in. See

Niedojadlo v. Cent. Me. Moving Storage Co., 1998 ME 199, ¶ 6, 715 A.2d 934

(“We presume that the jury follows the trial court’s instructions.”); Michaud v.

Steckino, 390 A.2d 524, 536 (Me. 1978) (“It must be presumed that the jurors were

influenced in their verdict only by the law as given to them by the trial justice . . .”)

(emphasis in original). The jury did not have occasion to consider whether PINH

negligently placed Boulier in an unsafe situation by failing to adequately inform

nursing staff of safety protocol. This Court should not speculate as to how a jury

would find if given the opportunity to consider a broader theory of PINH’s

liability, rather than a theory focused exclusively on the actions of a single CNA.




	  
26 	  
	  
	  
          [¶42] The trial court improperly limited the jury instructions based on its

over-reading of Levesque.         The Estate requested appropriate instructions and

presented evidence sufficient to generate those instructions. Nevertheless, the trial

court denied the Estate the opportunity to have an essential component of its case

considered by the jury. Accordingly, I would vacate the judgment and remand for

a new trial with appropriate jury instructions on all potential theories of liability

generated by the evidence.



_______________________________

On the briefs:

          Kenneth W. Hovermale, Esq., Hovermale Law, Portland, for appellant
          Estate of Vera Boulier

          Christopher C. Taintor, Esq., Norman, Hanson & DeTroy, LLC, Portland,
          and J. William Druary, Jr., Esq., Marden, Dubord, Bernier & Stevens, P.A.,
          LLC, Waterville, for appellee Presque Isle Nursing Home


At oral argument:

          Kenneth W. Hovermale, Esq., for appellant Estate of Vera Boulier

          Christopher C. Taintor, Esq., for appellee Presque Isle Nursing Home



Aroostook County Superior Court docket number CV-2009-85
FOR CLERK REFERENCE ONLY




	  
