MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	123	
Docket:	   Pen-16-543	
Argued:	   December	13,	2017	
Decided:	  August	21,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                           RANDY	N.	OLIVER,	II	et	al.	
                                      	
                                     v.	
                                      	
                       EASTERN	MAINE	MEDICAL	CENTER	
	
	
HJELM,	J.		

      [¶1]		In	this	action	for	professional	negligence,	Randy	N.	Oliver,	II	(Oliver)	

and	Nicole	Jernigan,	individually	and	as	personal	representatives	of	the	Estate	

of	 Randy	 N.	 Oliver,	 appeal,	 and	 Eastern	 Maine	 Medical	 Center	 cross-appeals	

from	a	judgment	of	the	Superior	Court	(Penobscot	County,	A.	Murray,	J.).		See	

infra	 n.4.	 	 Oliver	 and	 Jernigan	 challenge	 the	 part	 of	 the	 judgment	 concluding	

that	EMMC	was	not	negligent	when	it	discharged	their	father,	Randy	N.	Oliver	

(Randy),	because	the	discharge	was	contrary	to	the	instructions	they	gave	to	

the	 hospital	 in	 their	 capacity	 as	 his	 court-appointed	 guardians.	 	 Because	 the	

court	did	not	err	in	its	conclusions	that,	at	the	time	he	was	discharged,	Randy	

had	regained	capacity	to	make	his	own	health-care	decisions	and	that	EMMC’s	

discharge	plan	met	the	standard	of	care,	we	affirm	the	judgment	on	the	liability	
2	

claim.	 	 EMMC	 appeals	 the	 court’s	 denial	 of	 its	 request	 for	 costs	 for	 expert	

witness	 fees	 and	 expenses	 incurred	 during	 the	 prelitigation	 screening	 panel	

process.		We	also	affirm	that	determination.	

                             I.		FACTUAL	BACKGROUND	

       [¶2]		The	following	facts	are	drawn	from	the	court’s	findings,	which	are	

supported	by	competent	record	evidence,	and	from	the	procedural	record.		See	

In	re	Evelyn	A.,	2017	ME	182,	¶	4,	169	A.3d	914.			

       [¶3]		On	March	21,	2013,	Randy’s	daughter,	Nicole	Jernigan,	and	his	ex-

wife,	Patricia	Oliver,	found	Randy	severely	intoxicated	in	his	home	and	took	him	

to	Eastern	Maine	Medical	Center	in	Bangor.		Jernigan	and	Patricia	told	EMMC	

staff	 that	 Randy	 lived	 alone	 in	 his	 home,	 which	 had	 no	 running	 water	 and	

presented	significant	sanitation	issues.		They	also	informed	hospital	staff	that	

Randy	had	been	defrauded	of	money	by	scammers.			

       [¶4]		Randy	was	admitted	to	EMMC	with	diagnoses	that	included	hepatic	

encephalopathy	 (liver-related	 brain	 damage),	 possible	 alcohol	 withdrawal,	

deterioration	 of	 functional	 status,	 and	 a	 neglected	 state.	 	 At	 the	 time	 of	 the	

admission,	 Randy	 had	 burns	 on	 his	 hands.	 	 During	 Randy’s	 resulting	

hospitalization,	 Jernigan	 and	 Patricia	 provided	 staff	 with	 photographs	 of	
                                                                                     3	

Randy’s	home,	which	showed	fire	hazards	inside.		Jernigan	also	told	the	staff	

that	items	in	the	home	had	caught	fire	more	than	once.			

      [¶5]		Randy	remained	hospitalized	for	nearly	two	months	on	a	medical	

admission.	 	 Throughout	 that	 time,	 he	 asked	 to	 be	 discharged.	 	 Because	 of	

Randy’s	 expressed	 and	 ongoing	 desire	 to	 leave,	 the	 hospital	 assigned	 him	 a	

one-on-one	aide	to	prevent	him	from	leaving.			

	     [¶6]	 	 On	 March	 22,	 the	 day	 after	 Randy’s	 admission,	 a	 psychiatrist	

conducted	an	emergency	psychiatric	evaluation	of	Randy,	during	which	Randy	

expressed	 a	 lack	 of	 understanding	 about	 why	 he	 was	 in	 the	 hospital.	 	 The	

psychiatrist	concluded	that	Randy’s	alcohol	addiction	was	“potentially	lethal,”	

that	Randy	likely	suffered	from	“significant	cognitive	impairment	that	would	be	

slow	to	resolve,”	and	that	a	guardian	might	eventually	need	to	be	appointed.			

      [¶7]	 	 Nearly	 a	 week	 later,	 on	 March	 28,	 a	 neuropsychologist,	 Anthony	

Podraza,	examined	Randy.		Dr.	Podraza	found	that	Randy	was	a	“fairly	accurate	

historian,”	although	Randy	reported	that	his	biggest	problem	was	a	faulty	water	

heater	at	his	 house.		 Dr.	Podraza	 was	unable	to	complete	the	testing	process	

because	 of	 Randy’s	 poor	 motivation	 and	 lack	 of	 effort,	 but	 he	 was	 able	 to	

conclude	 that	 Randy	 did	 not	 have	 “capacity	 to	 manage	 simple	 or	 complex	

finances	independently”	or	“to	make	informed	decisions	regarding	his	health.”			
4	

         [¶8]		On	April	5,	Oliver	and	Jernigan	filed	a	petition	in	the	Waldo	County	

Probate	Court	to	be	appointed	Randy’s	co-guardians.		In	support	of	the	petition,	

they	submitted	a	report	of	a	physician	who	had	examined	Randy	on	April	1	and	

concluded	 that	 Randy’s	 prognosis	 was	 “probably	 poor	 for	 recovery	 of	

appropriate	 insight	 necessary	 for	 self	 care.”	 	 The	 court	 scheduled	 a	

guardianship	 hearing	 for	 May	 7.	 	 In	 the	 interim,	 a	 visitor	 appointed	 by	 the	

Probate	Court,	see	18-A	M.R.S.	§	5-303(b),	(c)	(2017),	interviewed	Randy	and	

wrote	a	report	recommending	that	a	guardian	be	appointed	and	that	Randy	be	

placed	in	a	secured	dementia	facility.			

         [¶9]	 	 On	 May	 7,	 the	 Probate	 Court	 (Longley,	 J.)	 held	 a	 hearing	 on	 the	

guardianship	 petition	 and,	 based	 on	 the	 physician’s	 report	 generated	 by	 the	

April	 1	 evaluation,	 	 appointed	 Oliver	 and	 Jernigan	 as	 Randy’s	 co-guardians.		

Importantly	for	this	action,	the	order	stated	that	the	guardians	were	authorized	

to	“act	only	as	necessitated	by	[Randy’s]	actual	mental	and	adaptive	limitations	

or	other	conditions	warranting	this	procedure.”			

         [¶10]		With	the	treatment	provided	at	EMMC,	Randy’s	condition	began	to	

improve.1		On	the	same	day	as	the	guardianship	hearing,	an	EMMC	hospitalist	



     1		Oliver	and	Jernigan	do	not	allege	that	EMMC	failed	to	provide	Randy	with	proper	medical	care	

during	his	hospitalization.			
                                                                                      5	

who	 was	 involved	 in	 Randy’s	 care	 ordered	 another	 neuropsychological	

examination	 after	 observing	 Randy	 and	 questioning	 the	 need	 for	 ongoing	

inpatient	 care.	 	 Dr.	 Podraza,	 who	 had	 examined	 Randy	 more	 than	 a	 month	

earlier,	 conducted	 the	 examination	 that	 day.	 	 As	 the	 court	 described	 it,	

Dr.	Podraza’s	findings	in	his	second	evaluation	were	“strikingly	different”	from	

those	 of	 the	 March	 28	 assessment.	 	 Dr.	 Podraza	 described	 Randy	 as	 “alert,	

friendly,	pleasant,	and	very	cooperative.”		Randy	informed	Dr.	Podraza	that	he	

was	 anxious	 to	 return	 to	 his	 home	 and	 planned	 to	 quit	 drinking	 although	

without	 therapy	 or	 group	 support.	 	 After	 conducting	 the	 examination,	

Dr.	Podraza	concluded	that	Randy	had	capacity	to	“manage	simple	or	complex	

finances	 independently”	 and	 “make	 better	 informed	 decisions	 regarding	 his	

health.”		Dr.	Podraza	requested	that	a	community	case	manager	be	referred	to	

Randy	as	a	condition	of	his	release	from	EMMC.			

      [¶11]		After	Dr.	Podraza’s	second	neuropsychological	evaluation,	EMMC	

concluded	that	Randy	no	longer	needed	acute	medical	care	and	that	the	hospital	

was	possibly	holding	him	there	against	his	will.		Oliver	and	Jernigan,	however,	

disputed	Dr.	Podraza’s	conclusion	that	Randy	had	regained	capacity,	opposed	

his	discharge	from	the	hospital	to	any	setting	other	than	a	locked	facility,	and	

wanted	 a	 second	 opinion	 but	 were	 unable	 to	 find	 an	 evaluator	 not	 affiliated	
6	

with	 EMMC.	 	 Although	 EMMC	 offered	 to	 have	 Randy	 evaluated	 by	 an	 EMMC	

practitioner,	Oliver	and	Jernigan	ultimately	informed	EMMC	that	they	did	not	

want	another	evaluation.			

      [¶12]	 	 EMMC’s	 vice	 president	 and	 in-house	 legal	 counsel	 initially	

concluded	 that	 EMMC	 could	 not	 discharge	 Randy	 without	 his	 guardians’	

consent.		The	attorney	then	reconsidered	the	issue	after	reviewing	the	Probate	

Court’s	guardianship	order	and,	based	on	the	provision	of	the	order	that	limited	

the	guardian’s	authority	to	make	decisions	for	Randy	only	when	Randy	himself	

was	not	capable	of	doing	so,	recommended	that	EMMC	could	release	Randy	if	

and	when	he	regained	capacity.			

      [¶13]		During	this	time,	Randy’s	assigned	social	worker	at	EMMC	assisted	

Randy	with	filling	out	a	petition	to	terminate	the	guardianship	and	a	motion	for	

appointment	of	counsel,	which	included	an	indigency	affidavit.		Although	Randy	

independently	 obtained	 information	 needed	 for	 the	 paperwork,	 it	 was	 never	

filed	with	the	Probate	Court.			

      [¶14]	 	 On	 May	 16,	 a	 certified	 nurse	 practitioner	 at	 EMMC	 who	 was	

providing	 direct	 care	 to	 Randy	 assessed	 whether	 he	 should	 be	 discharged.		

Based	 on	 his	 own	 assessment	 and	 his	 review	 of	 Randy’s	 medical	 record,	

including	Dr.	Podraza’s	opinion	following	his	May	7	 assessment,	the	certified	
                                                                                      7	

nurse	practitioner	concluded	that	Randy	had	sufficient	capacity	to	manage	his	

own	 affairs	 and	 decided	 to	 discharge	 him.	 	 The	 discharge	 plan	 included	

referrals	to	Randy’s	primary	care	provider,	a	pain	clinic,	and	community	case	

management,	 and	 a	 recommendation	 to	 participate	 in	 substance	 abuse	

treatment.			

      [¶15]		That	day,	Randy’s	EMMC-based	social	worker	left	a	message	for	

Oliver	informing	him	of	EMMC’s	decision	to	discharge	Randy	and	allow	him	to	

go	 home	 that	 day.	 	 The	 social	 worker	 also	 called	 and	 spoke	 directly	 with	

Jernigan,	 who,	 again,	 told	 him	 that	 neither	 she	 nor	 Oliver	 had	 authorized	

Randy’s	discharge.		The	social	worker	offered	to	arrange	for	a	taxi	to	take	Randy	

to	her	residence,	but	Jernigan	declined	that	offer.			

      [¶16]		EMMC	went	forward	with	its	plan	to	discharge	Randy,	and	he	left	

the	hospital	that	day	with	a	friend.		Jernigan	and	Patricia	visited	Randy	at	his	

home	 twice	 that	 night.	 	 When	 they	 left	 Randy	 for	 the	 final	 time	 at	 around	

9:00	p.m.,	he	was	intoxicated.		Randy	died	later	that	night	as	the	result	of	a	fire	

that	destroyed	his	entire	home.			

                         II.		PROCEDURAL	BACKGROUND	

      [¶17]		Oliver	and	Jernigan,	individually	and	as	representatives	of	Randy’s	

Estate,	filed	a	complaint,	later	amended,	against	EMMC	in	the	Superior	Court	in	
8	

late	 2014.	 	 Although	 in	 its	 final	 form	 the	 complaint	 contained	 a	 number	 of	

counts,	each	of	them	was	predicated	on	a	claim	of	negligence	except	for	a	count	

alleging	intentional	infliction	of	emotional	distress.2		The	court	(A.	Murray,	J.)	

held	a	five-day	bench	trial	in	June	of	2016.		In	a	judgment	entered	on	August	8,	

2016,	in	which	the	court	set	out	extensive	findings	of	fact	and	a	thorough	legal	

analysis,	the	court	concluded	that	EMMC	was	not	negligent	when	it	discharged	

Randy	over	the	objection	of	his	guardians	and	that	the	discharge	plan	met	the	

standard	of	care.		On	all	counts	of	the	amended	complaint,	the	court	therefore	

entered	judgment	for	EMMC.			

          [¶18]		On	August	15,	EMMC	filed	a	bill	of	costs,	see	14	M.R.S.	§§	1501	to	

1502-C	 (2017),	 which	 included	 expert	 witness	 fees	 and	 expenses	 from	 the	

prelitigation	 screening	 panel	 hearing,	 see	 24	 M.R.S.	 §	 2854	 (2017).	 	 On	

August	22,	 Oliver	 and	 Jernigan	 filed	 a	 consolidated	 motion	 for	 amended	 or	

additional	findings,	for	modification	of	the	judgment,	and	for	a	new	trial.		See	

M.R.	Civ.	P.	52,	59.		On	September	20,	the	court	denied	their	motion.		After	the	

parties	filed	additional	argument	on	costs,	on	November	18	the	court	entered	




     2	
     	 The	 liability	 claims	 comprised	 a	 survival	 action	 based	 on	 EMMC’s	 alleged	 negligence,	 see	
18-A	M.R.S.	§	3-817	(2017);	negligence-based	wrongful	death	claims	for	damages	to	the	beneficiaries	
of	Randy’s	estate	and	for	Randy’s	conscious	pain	and	suffering,	see	18-A	M.R.S.	§	2-804	(2017);	and	
claims	for	negligent	and	intentional	infliction	of	emotional	distress.			
                                                                                                      9	

an	 order	 awarding	 some	 costs	 to	 EMMC	 but	 not	 those	 associated	 with	 the	

screening	panel	process.			

        [¶19]	 	 EMMC	 filed	 a	 notice	 of	 appeal	 on	 December	 2,	 2016.	 	 See	 M.R.	

App.	P.	 2(b)(3)	 (Tower	 2016).3	 	 On	 December	 8,	 Oliver	 and	 Jernigan	 filed	 a	

cross-appeal	and,	in	the	alternative,	a	motion	to	enlarge	the	time	in	which	to	file	

the	notice	of	appeal,	claiming	they	had	not	received	notice	of	the	order	denying	

their	 August	 22	 motion	 because	 the	 clerk	 had	 not	 sent	 the	 order	 to	 their	

attorney.	 	 Without	 determining	 whether	 Oliver	 and	 Jernigan’s	 appeal	 was	

timely,	the	court	denied	the	motion	to	enlarge,	and	Oliver	and	Jernigan	filed	a	

separate	notice	of	appeal	from	that	order.4			

                                          III.		DISCUSSION	

	       [¶20]		The	principal	issues	on	appeal	are	Oliver	and	Jernigan’s	challenge	

to	the	court’s	conclusion	that	EMMC	was	not	negligent	and	EMMC’s	challenge	

to	the	court’s	denial	of	some	of	its	costs.		Before	considering	those	contentions,	

we	address	the	question	of	whether	the	notices	of	appeal	were	filed	in	a	timely	

way.	



    3		This	appeal	was	filed	before	September	1,	2017;	therefore,	the	restyled	Maine	Rules	of	Appellate	

Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rules).			
    4		Because	three	notices	of	appeal	were	filed,	we	issued	an	order	consolidating	the	appeals	and	

designating	the	Estate	of	Randy	N.	Oliver	(i.e.,	Oliver	and	Jernigan)	as	the	appellant.			
10	

A.	   Timeliness	of	Appeal	

      [¶21]		Because	EMMC	and	Jernigan	and	Oliver	filed	their	notices	of	appeal	

more	 than	 twenty-one	 days	 after	 the	 entry	 of	 judgment,	 we	 must	 consider	

whether	the	notices	were	timely.	

      [¶22]		To	be	timely,	a	notice	of	appeal	must	be	filed	within	twenty-one	

days	after	the	judgment	is	entered	in	the	docket,	absent	exceptions	that	are	not	

present	here.		See	M.R.	App.	P.	2(b)(3)	(Tower	2016).		Here,	the	judgment	on	

the	merits	of	the	complaint	was	entered	on	August	8,	2016.		EMMC	then	filed	a	

timely	bill	of	costs	on	August	15,	and	the	court	entered	an	order	allowing	some	

costs	 and	 denying	 others	 on	 November	 18.	 	 On	 December	 2—a	 date	 within	

twenty-one	days	after	the	entry	of	the	court’s	order	on	costs—EMMC	filed	its	

notice	of	appeal.			

      [¶23]		In	a	case	where	there	are	several	trial	court	judgments	or	other	

dispositive	orders,	we	will	“review	each	to	determine	at	what	point	the	court	

fully	decided	and	disposed	of	the	whole	matter	leaving	nothing	further	for	the	

consideration	 and	 judgment	 of	 the	 trial	 court.”	 	 Coastal	 Ventures	 v.	 Alsham	

Plaza,	LLC,	2010	ME	63,	¶	18,	1	A.3d	416	(alterations	omitted)	(quotation	marks	

omitted);	see	also	E.	Perry	Iron	&	Metal	Co.	v.	City	of	Portland,	2006	ME	52,	¶	5,	

896	A.2d	956.		Here,	at	least	as	to	EMMC,	the	judgment	did	not	become	final	
                                                                                                11	

until	November	18,	when	the	court	resolved	the	request	for	an	award	of	costs.		

Until	 the	 court	 issued	 that	 order,	 there	 was	 nothing	 on	 which	 EMMC	 could	

present	 the	 challenge	 it	 pursues	 here,	 namely,	 its	 contention	 that	 the	 court	

erred	 by	 denying	 an	 award	 of	 some	 of	 the	 costs	 it	 sought	 to	 recover	 from	

Jernigan	 and	 Oliver.	 	 EMMC’s	 notice	 of	 appeal,	 filed	 within	 twenty-one	 days	

after	the	court’s	order	on	costs,	was	therefore	timely.			

       [¶24]		Jernigan	and	Oliver	then	filed	a	cross-appeal	on	December	8—six	

days	after	EMMC	filed	its	notice	of	appeal.		If	one	party	files	a	timely	notice	of	

appeal,	any	other	party	is	entitled	to	file	a	notice	of	appeal	within	fourteen	days	

after	the	first	notice	of	appeal	is	filed.		M.R.	App.	P.	2(b)(3)	(Tower	2016).		The	

notice	of	appeal	filed	by	Jernigan	and	Oliver	therefore	was	timely	because	the	

deadline	for	their	appeal	is	measured	by	the	date	of	EMMC’s	appeal	and	not	the	

date	when	the	judgment	was	entered.5		

       [¶25]	 	 EMMC	 argues	 that	 any	 issues	 on	 appeal	 are	 limited	 to	 the	

November	 18	 order	 on	 costs	 because	 the	 time	 to	 appeal	 as	 calculated	 from	

August	 8—the	 date	 when	 the	 judgment	 was	 entered—had	 long	 passed	 by	

December	8.		The	Maine	Rules	of	Appellate	Procedure	state,	however,	that	“[a]n	


   5		Because	Oliver	and	Jernigan’s	cross-appeal	was	timely,	we	need	not	address	their	related	due	

process	argument	or	their	assertion	that	the	court	abused	its	discretion	by	denying	their	motion	to	
enlarge	the	time	to	file	an	appeal.			
12	

appeal	 from	 a	 judgment,	 whenever	 taken,	 preserves	 for	 review	 any	 claim	 of	

error	 in	 the	 record.”	 	 M.R.	 App.	 P.	 2(b)(4)	 (Tower	 2016)	 (emphasis	 added).		

Jernigan	 and	 Oliver	 are	 therefore	 permitted	 to	 pursue	 their	 challenge	 to	 the	

judgment	on	its	merits.		

B.	   Oliver	and	Jernigan’s	Claims	against	EMMC	

	     [¶26]	 	 Oliver	 and	 Jernigan	 assert	 that,	 by	 rejecting	 their	 claim	 against	

EMMC,	 the	 court	 erred	 in	 several	 respects:	 by	 concluding	 that	 the	 Probate	

Court’s	 guardianship	 order	 did	 not	 preclude	 EMMC	 from	 discharging	 Randy,	

given	 the	 contrary	 instructions	 they	 had	 given	 in	 their	 capacity	 as	 Randy’s	

court-appointed	guardians;	by	concluding	that	Randy	had	regained	capacity	to	

make	the	decision	to	be	discharged;	and	by	concluding	that	EMMC’s	discharge	

plan	 was	 reasonable.	 	 We	 first	 review	 the	 statutory	 framework	 applicable	 to	

guardianships	in	these	circumstances	and	then	consider	the	strands	of	Oliver	

and	Jernigan’s	argument	in	turn.	

	     1.	    Guardianship	Statutes	

	     [¶27]		“We	review	issues	of	law	de	novo.”		Levesque	v.	Cent.	Me.	Med.	Ctr.,	

2012	 ME	 109,	 ¶	 16,	 52	 A.3d	 933.	 	 Specifically,	 when	 considering	 issues	 of	

statutory	interpretation,	we	will	“examine	the	entirety	of	the	statute,	giving	due	

weight	 to	 design,	 structure,	 and	 purpose	 as	 well	 as	 to	 aggregate	 language.”		
                                                                                                         13	

Dickau	v.	Vt.	Mut.	Ins.	Co.,	2014	ME	158,	¶	22,	107	A.3d	621	(quotation	marks	

omitted).			

	       [¶28]		The	Probate	Code	authorizes	the	court	to	appoint	a	guardian	for	

an	 incapacitated	 person.6	 	 See	 18-A	 M.R.S.	 §§	 5-303,	 5-304	 (2017).	 	 The	

appointment	of	a	guardian	affects	the	incapacitated	person’s	personal	liberties.		

See	Guardianship	of	Collier,	653	A.2d	898,	900	(Me.	1995).		Consequently,	when	

entering	a	guardianship	order,	the	court	is	required	to	exercise	its	appointment	

authority	 in	 a	 way	 that	 “encourage[s]	 the	 development	 of	 maximum	 self	

reliance	and	independence	of	the	incapacitated	person	and	make[s]	appointive	

and	other	orders	only	to	the	extent	necessitated	by	the	incapacitated	person’s	

actual	 mental	 and	 adaptive	 limitations	 or	 other	 conditions	 warranting	 the	

procedure.”	 	 18-A	 M.R.S.	 §	 5-304(a).	 	 To	 implement	 this	 objective,	 in	

appropriate	 circumstances	 a	 court	 may—as	 the	 Probate	 Court	 did	 here—

appoint	 a	 limited	 guardian,	 which	 is	 a	 category	 of	 guardians	 “established	 to	

assure	 flexibility	 in	 dealing	 with	 special	 circumstances.”	 	 In	 re	 James	 John	 L.,	




   6		The	Probate	Code	defines	“incapacitated	person”	as	“any	person	who	is	impaired	by	reason	of	

mental	 illness,	 mental	 deficiency,	 physical	 illness	 or	 disability,	 chronic	 use	 of	 drugs,	 chronic	
intoxication,	or	other	cause	except	minority	to	the	extent	that	he	lacks	sufficient	understanding	or	
capacity	 to	 make	 or	 communicate	 responsible	 decisions	 concerning	 his	 person.”	 	 18-A	 M.R.S.	
§	5-101(1)	(2017)	(emphasis	added).			
14	

601	A.2d	 630,	 631	 (Me.	 1992)	 (quotation	 marks	 omitted);	 see	 18-A	 M.R.S.	

§	5-105	(2017).		Section	5-105	provides:	

               In	 any	 case	 in	 which	 a	 guardian	 can	 be	 appointed	 by	 the	
        court,	the	judge	may	appoint	a	limited	guardian	with	fewer	than	all	
        of	 the	 legal	 powers	 and	 duties	 of	 a	 guardian.	 	 The	 specific	 duties	
        and	powers	of	a	limited	guardian	shall	be	enumerated	in	the	decree	
        or	 court	 order.	 	 A	 person	 for	 whom	 a	 limited	 guardian	 has	 been	
        appointed	retains	all	legal	and	civil	rights	except	those	which	have	
        been	suspended	by	the	decree	or	order.7			

        [¶29]		Pursuant	to	the	Probate	Code,	when	a	guardian’s	authority	extends	

to	 health-care	 decisions,	 the	 guardian	 may	 “give	 or	 withhold	 consents	 or	

approvals	 related	 to	 medical	 or	 other	 professional	 care	 .	 .	 .	 for	 the	 ward.”		

18-A	M.R.S.	 §	5-312(a)(3)	 (2017).	 	 In	 doing	 so,	 however,	 the	 guardian	 must	

“make	 a	 health-care	 decision	 in	 accordance	 with	 the	 ward’s	 individual	


   7	 	 The	 Probate	 Court’s	 order	 imposed	 limitations	 on	 the	 guardian’s	 authority	 and	 cited	 to	
18-A	M.R.S.	 §	 5-105	 (2017),	 which	 is	 the	 statutory	 authority	 for	 a	 court	 to	 create	 a	 limited	
guardianship.	 	 From	 this,	 it	 is	 apparent	 that	 the	 Probate	 Court	 intended	 the	 guardianship	 to	 be	
limited.		As	noted	in	the	text,	section	5-105	requires	the	court,	when	creating	a	limited	guardianship,	
to	“enumerate[]”	the	“specific	duties	and	powers”	of	the	limited	guardian.		The	order	here	did	not	do	
so.		Rather	than	affirmatively	and	specifically	delineating	the	guardians’	duties	and	powers	created	
by	the	order,	it	stated	in	a	non-specific	way	that	the	guardians	would	have	“custody”	of	Randy	and	
“all	other	duties	of	a	Guardian	under	law.”		This	stands	in	contrast	to	the	provisions	of	18-A	M.R.S.	
§	5-312	 (2017),	 which	 lists,	 in	 specific	 terms,	 the	 powers	 and	 duties	 that	 a	 court	 may	 grant	 to	 a	
guardian.	 	 The	 order	 here	 then	 purports	 only	 to	 set	 two	 limitations	 on	 the	 non-specific	 grant	 of	
authority	to	the	guardians,	namely,	that	the	guardians	were	entitled	to	“act	only	as	necessitated	by	
[Randy’s]	actual	mental	and	adaptive	limitations	or	other	conditions	warranting	this	procedure”	and	
that	the	guardians	were	to	assure	that	Randy’s	right	to	vote	was	“honor[ed].”			

    Oliver	 and	 Jernigan	 and	 EMMC	 have	 not	 challenged	 the	 validity	 of	 the	 guardianship	 order	 as	
measured	by	the	requirements	of	section	5-105—something	that	is	understandable	given	that	much	
of	their	argument	to	the	court	and	on	this	appeal	is	predicated	on	that	order.		We	therefore	assume,	
without	 deciding,	 that	 the	 structure	 of	 the	 Probate	 Court’s	 guardianship	 order	 meets	 the	
requirements	of	section	5-105.		
                                                                                                            15	

instructions,	if	any,	and	other	wishes	expressed	while	the	ward	had	capacity.”		

Id.			

         [¶30]		The	Probate	Code	contains	the	Uniform	Health-Care	Decisions	Act	

(UHDA)	as	adopted	in	Maine,	see	18-A	M.R.S.	§§	5-801	to	5-818	(2017),	which	

outlines	 the	 obligations	 of	 a	 health-care	 provider	 with	 regard	 to	 a	 patient’s	

health-care	decisions,	including	where	a	guardian	has	been	appointed	for	the	

patient.	 	 See	 id.	 §	 5-807.	 	 A	 person	 is	 presumed	 to	 have	 “capacity”	 to	 make	

health-care	decisions.		Id.	§	5-811(b).		“Capacity”	is	defined	statutorily	as	“the	

ability	 to	 have	 a	 basic	 understanding	 of	 the	 diagnosed	 condition	 and	 to	

understand	 the	 significant	 benefits,	 risks	 and	 alternatives	 to	 the	 proposed	

health	 care	 and	 the	 consequences	 of	 foregoing	 the	 proposed	 treatment,	 the	

ability	 to	 make	 and	 communicate	 a	 health	 care	 decision	 and	 the	 ability	 to	

understand	 the	 consequences	 of	 designating	 an	 agent	 or	 surrogate	 to	 make	

health-care	decisions.”		Id.	§	5-801(c).		The	statutory	presumption	of	capacity	

“may	be	rebutted	by	a	determination	by	the	individual’s	primary	physician	or	

by	a	court	of	competent	jurisdiction.”		Id.	§	5-811(b).		A	primary	physician8	who	




   8	 	 “’Primary	 physician’	 means	 a	 physician	 designated	 by	 an	 individual	 with	 capacity	 or	 by	 the	

individual’s	agent,	guardian	or	surrogate,	to	have	primary	responsibility	for	the	individual’s	health	
care	or,	in	the	absence	of	a	designation	or	if	the	designated	physician	is	not	reasonably	available,	a	
physician	who	undertakes	the	responsibility.”		18-A	M.R.S.	§	5-801(m)	(2017).			
16	

makes	or	is	informed	of	a	determination	that	a	patient	has	regained	capacity	

must	 “promptly	 record	 the	 determination	 in	 the	 patient’s	 health-care	 record	

and	 communicate	 the	 determination	 to	 the	 patient,	 if	 possible,	 and	 to	 any	

person	 then	 authorized	 to	 make	 health-care	 decisions	 for	 the	 patient.”	 	 Id.	

§	5-807(c).		When	a	person	is	authorized	to	make	health-care	decisions	for	the	

patient,	 the	 provider	 is	 required	 to	 comply	 with	 the	 decision	 made	 by	 the	

surrogate	“to	the	same	extent	as	if	the	decision	had	been	made	by	the	patient	

while	having	capacity.”		Id.	§	5-807(d)(2).	

      2.	    Effect	of	the	Guardianship	Order	

      [¶31]	 	 The	 letters	 of	 guardianship	 appointing	 Oliver	 and	 Jernigan	 as	

guardians	 for	 Randy	 stated,	 “Unless	 limitations	 appear	 above,	 [Jernigan	 and	

Oliver]	shall	have	custody	of	[Randy]	and	all	other	duties	of	a	Guardian	under	

law	until	further	order	of	this	Court	or	until	[Randy’s]	need	for	a	guardian	is	

otherwise	terminated.”		This	grant	of	authority,	however,	was	made	subject	to	

a	 condition	 that	 Oliver	 and	 Jernigan	 “act	 only	 as	 necessitated	 by	 [Randy’s]	

actual	 mental	 and	 adaptive	 limitations	 or	 other	 conditions	 warranting	 this	

procedure.”		Oliver	and	Jernigan	assert	that	this	language	in	the	order	did	not	

limit	their	authority	to	make	health-care	decisions	while	the	order	remained	in	
                                                                                       17	

effect	and	that	the	order	barred	EMMC	from	acting	on	Randy’s	own	decision	to	

leave	the	hospital.		We	disagree.	

      [¶32]	 	 The	 limiting	 language	 contained	 in	 the	 guardianship	 order	 is	

derived	from	section	5-304(a).		That	statute	is	directed	to	the	court’s	exercise	

of	 authority	 in	 setting	 the	 terms	 of	 the	 guardianship	 in	 a	 way	 that	 does	 not	

interfere	 excessively	 with	 the	 ward’s	 autonomy.	 	 Here,	 however,	 the	 court	

chose	 to	 use	 that	 limiting	 language	 to	 define	 the	 scope	 of	 the	 guardians’	

authority	 to	 act	 on	 Randy’s	 behalf.	 	 Although	 Oliver	 and	 Jernigan	 seek	 to	

diminish	the	significance	of	that	limitation	by	characterizing	it	as	a	boilerplate	

provision	of	the	order,	the	words	chosen	by	the	court	have	effect	and	must	be	

given	their	plain	meaning,	see	Burnell	v.	Burnell,	2012	ME	24,	¶	15,	40	A.3d	390.		

And	 as	 the	 clear	 terms	 of	 that	 provision	 establish,	 Oliver	 and	 Jernigan—as	

guardians—were	authorized	to	make	health-care	decisions	for	Randy	“only	to	

the	 extent	 necessitated	 by	 [Randy’s]	 actual	 mental	 and	 adaptive	 limitations.”		

(Emphases	 added.)	 	 This	 language	 is	 more	 than	 precatory.	 	 Rather,	 set	 in	

concrete	terms,	the	order	circumscribed	the	scope	of	the	guardians’	authority	

and	the	circumstances	in	which	they	had	authority	to	make	decisions	for	Randy.			

      [¶33]		Therefore,	the	court	did	not	err	by	determining	that	the	Probate	

Court’s	 guardianship	 order	 did	 not,	 as	 a	 matter	 of	 law,	 preclude	 EMMC	 from	
18	

acting	on	Randy’s	wish	to	be	discharged	from	in-patient	hospitalization.		The	

next	question	is	whether,	as	a	matter	of	fact,	Randy	had	regained	capacity	that	

would	activate	the	limitation	in	the	guardianship	order,	thereby	stripping	the	

guardians	of	their	authority—while	Randy	had	capacity—to	make	health-care	

decisions	 for	 him	 and	 correspondingly	 allowing	 him	 to	 make	 his	 own	

decisions.9	

        3.	     Discharge	Decision	

        [¶34]	 	 We	 “conduct	 a	 deferential	 review	 [of	 findings	 of	 fact]	 for	 clear	

error.”		Zablotny	v.	State	Bd.	of	Nursing,	2017	ME	29,	¶	18,	156	A.3d	126.		“A	

finding	 of	 fact	 is	 clearly	 erroneous	 if	 there	 is	 no	 competent	 evidence	 in	 the	

record	to	support	it;	if	the	fact-finder	clearly	misapprehends	the	meaning	of	the	

evidence;	or	if	the	finding	is	so	contrary	to	the	credible	evidence	that	it	does	not	

represent	the	truth	and	right	of	the	case.”		Young	v.	Lagasse,	2016	ME	96,	¶	8,	

143	A.3d	131	(quotation	marks	omitted).				

        [¶35]		Here,	the	court	found	that	Randy	had	regained	capacity	by	May	16.		

Although	the	evidence	on	that	issue	was	disputed,	the	record	fully	supports	the	



   9	 	 Oliver	 and	 Jernigan	 mistakenly	 equate	 the	 effect	 of	 Randy’s	 recovery	 of	 capacity	 with	 a	

termination	of	the	guardianship	order	altogether,	which	would	be	controlled	by	18-A	M.R.S.	§§	5-306	
and	5-307	(2017).		The	guardianship	order	remained	in	effect	even	though	Randy	regained	capacity;	
the	 guardians’	 authority	 was	 merely	 suspended	 to	 the	 extent	 that	 their	 intervention	 was	 not	
“necessitated	by	[Randy’s]	actual	mental	and	adaptive	limitations.”			
                                                                                   19	

court’s	 ultimate	 and	 closely	 analyzed	 determination.	 	 See	 Gordon	 v.	 Cheskin,	

2013	ME	113,	¶	12,	82	A.3d	1221	(“We	defer	to	the	trial	court’s	determination	

of	witnesses’	credibility	and	its	resolution	of	conflicts	in	testimony.”).		A	number	

of	 EMMC	 providers	 who	 interacted	 with	 Randy	 during	 his	 hospitalization	

reached	 that	 conclusion	 and	 testified	 to	 the	 reasons	 they	 determined	 that	

Randy	had	capacity.		For	example,	based	on	the	evaluation	conducted	on	May	7,	

Dr.	Podraza—who	had	the	benefit	of	having	assessed	Randy	more	than	a	month	

earlier	and	in	fact	was	assigned	to	conduct	the	May	7	evaluation	for	that	reason,	

and	whose	evaluation,	according	to	expert	witnesses	called	by	EMMC,	met	the	

standard	of	care—concluded	that	Randy	had	regained	capacity.		The	court	also	

credited	 the	 testimony	 and	 conclusion	 reached	 by	 the	 certified	 nurse	

practitioner,	who	was	providing	direct	care	for	Randy	during	the	last	few	days	

of	 Randy’s	 admission	 and	 determined	 that	 Randy	 had	 “sufficient	 insight	 and	

judgment	to	manage	his	person.”			

      [¶36]		As	the	court	also	noted,	Randy’s	hospital	records	showed	that	his	

behavior	and	engagement	with	others	in	the	hospital	setting	showed	significant	

improvement—he	 had	 become	 fully	 oriented,	 his	 physical	 condition	 had	

improved,	 he	 was	 eating	 and	 sleeping	 well,	 he	 was	 engaged	 in	 an	 exercise	

program,	and	he	was	attending	to	his	hygiene.		Randy’s	planning	and	behavior	
20	

leading	up	to	and	immediately	following	the	discharge—for	example,	arranging	

for	 a	 ride	 from	 a	 friend	 rather	 than	 from	 family	 members	 who	 might	 be	

expected	 to	 interfere	 with	 his	 discharge,	 and	 going	 to	 a	 store	 to	 purchase	

specific	 items	 he	 needed—are	 indicative	 of	 capacity.	 	 Further,	 two	 expert	

witnesses—a	psychiatrist	and	a	neuropsychologist—explained	that	Randy	had	

capacity	 to	 be	 discharged.	 	 The	 court’s	 finding	 that	 Randy	 had	 capacity	 as	 of	

May	16	is	well	supported	by	the	evidence	and	not	clearly	erroneous.			

      [¶37]		Oliver	and	Jernigan	assert	that	the	Probate	Court’s	determination,	

which	 was	 a	 predicate	 to	 the	 guardianship	 order,	 that	 Randy	 had	 “capacity	

conditions	which	warrant	 an	 appointment	of	a	guardian”	barred	both	 EMMC	

and,	later,	the	court	from	concluding	differently.		This	contention	is	undermined	

by	 the	 very	 terms	 of	 the	 guardianship	 order,	 which	 framed	 the	 guardians’	

authority	 as	a	function	of	Randy’s	“actual	mental	and	 adaptive	limitations	or	

other	 conditions	 warranting	 this	 procedure.”	 	 (Emphasis	 added.)	 	 The	 order	

signals	an	expectation,	not	of	stasis,	but	of	a	dynamic	situation	where	changes	

in	Randy’s	condition—his	“actual”	level	of	capacity—would	define	the	nature	

and	 extent	 of	 the	 guardians’	 authority.	 	 This	 would	 necessarily	 call	 for	 an	

ongoing	 assessment	 of	 Randy’s	 capacity,	 which	 is	 what	 both	 EMMC	 and	 the	

court	properly	did.			
                                                                                                      21	

        [¶38]		For	these	reasons,	the	court	did	not	err	by	concluding	that	EMMC	

properly	 complied	 with	 the	 directive	 made	 by	 Randy—a	 patient	 with	

capacity—that	he	be	discharged.10	

        4.	     Adequacy	of	Discharge	Plan	

        [¶39]	 	 Finally,	 the	 parties	 do	 not	 dispute	 that	 EMMC	 was	 required	 to	

provide	Randy	with	a	safe	and	reasonable	discharge	plan.		The	court	thoroughly	

analyzed	the	evidence	on	this	issue,	including	expert	testimony	and	evidence	of	

the	events	leading	up	to	Randy’s	discharge.		On	that	basis,	not	only	did	the	court	

conclude	 that	 Oliver	 and	 Jernigan	 did	 not	 prove	 that	 the	 discharge	 plan	 was	

deficient,	 but	 the	 court	 found	 affirmatively	 that	 the	 discharge	 plan	 was	

reasonable.			

        [¶40]		The	discharge	plan	included	an	appointment,	made	by	EMMC,	at	a	

pain	clinic;11	an	appointment,	also	made	by	EMMC,	for	Randy	to	see	his	primary	

care	 physician	 four	 days	 after	 discharge;	 and	 contact	 information	 given	 to	

Randy	for	case	management	services.		The	discharge	plan	also	included	a	strong	



   10		Once	Randy’s	primary	physician	made	or	learned	of	a	determination	that	Randy	had	capacity,	

the	provider	was	required	to	record	that	determination	in	Randy’s	health-care	record	and	notify	any	
person	 who	 was	authorized	to	 make	 health-care	decisions	 for	 Randy.	 	 See	 18-A	M.R.S.	 §	 5-807(c)	
(2017).		The	court	did	not	make	specific	findings	on	this	issue,	but	the	record	contains	evidence	that	
EMMC	complied	with	this	statutory	requirement,	and	Oliver	and	Jernigan	do	not	raise	a	challenge	
based	on	this	provision.			
   11		The	record	contains	evidence	that	Randy	had	suffered	a	back	injury	that	caused	him	pain.			
22	

recommendation	 to	 Randy	 that	 he	 stop	 drinking	 and	 attend	 group	 meetings,	

and	EMMC	offered	substance	abuse	counseling.		By	the	time	he	was	discharged,	

Randy	had	come	to	admit	that	he	was	an	alcoholic	and	stated	that	he	would	try	

to	stop	drinking	although	without	substance	abuse	counseling	or	attendance	at	

group	meetings.		The	court	found	that	this	acknowledgement	showed	insight	

and	significant	progress	and	that,	because	Randy	was	medically	stable	and	had	

capacity	when	he	was	discharged,	EMMC	was	obligated	to	comply	with	his	wish	

to	 leave,	 notwithstanding	 the	 prospect	 that	 he	 would	 resume	 drinking—a	

decision	Randy	was	entitled	to	make.			

      [¶41]		Before	he	was	discharged,	Randy’s	nurse	reviewed	the	discharge	

plan	with	him,	and	he	indicated	that	he	understood.		Finally,	the	social	worker	

working	with	Randy	at	the	time	of	the	discharge	notified	Jernigan	that	Randy	

was	about	to	be	released.		The	court	considered	the	relatively	short	amount	of	

notice	 provided	 to	 Jernigan	 but	 concluded,	 without	 error,	 that	 EMMC	 was	

required	to	act	on	Randy’s	insistence	to	leave	the	hospital.				

      [¶42]	 	 The	 court	 did	 not	 commit	 clear	 error	 by	 concluding	 that	 EMMC	

provided	Randy	with	a	safe	and	reasonable	discharge	and	was	not	negligent	in	

discharging	him.	
                                                                                         23	

C.	    EMMC’s	Bill	of	Costs		

	      [¶43]	 	 We	 turn	 finally	 to	 EMMC’s	 assertion	 that	 the	 court	 erred	 by	

denying	its	bill	of	costs	for	expert	witness	fees	and	expenses	incurred	during	

the	 mandatory	 prelitigation	 panel	 proceedings	 held	 pursuant	 to	 24	 M.R.S.	

§§	2851-2859	(2017).		“We	review	issues	of	law	de	novo,”	Levesque,	2012	ME	

109,	¶	16,	52	A.3d	933,	but	review	“the	decision	of	the	court	to	award	costs	for	

an	abuse	of	discretion,”	Poland	v.	Webb,	1998	ME	104,	¶	12,	711	A.2d	1278.			

       [¶44]		Maine	Rule	of	Civil	Procedure	54(d)	provides	that	“[c]osts	shall	be	

allowed	as	of	course	to	the	prevailing	party,	as	provided	by	statute	and	by	these	

rules,	 unless	 the	 court	 otherwise	 specifically	 directs.”	 	 Courts	 have	 the	

discretion	 to	 award	 reasonable	 expert	 witness	 fees	 and	 expenses	 as	 allowed	

pursuant	to	title	 16,	section	251.		 See	14	M.R.S.	 §	1502-C(1).	 	Section	 251,	in	

turn,	 gives	 the	 court	 discretion	 to	 “allow	 at	 the	 trial	 of	 any	 cause,	 civil	 or	

criminal,	in	the	Supreme	Judicial	Court,	the	Superior	Court	or	the	District	Court,	

a	reasonable	sum	for	each	day’s	attendance	of	any	expert	witness	or	witnesses	

at	the	trial.”	16	M.R.S.	§	251	(2017)	(emphasis	added);	see	Webb,	1998	ME	104,	

¶	 14,	 711	 A.2d	 1278	 (“Those	 statutory	 provisions	 [14	 M.R.S.	 §	1502-C	 and	

16	M.R.S.	§	251]	authorize	only	fees	that	are	directly	related	to	attendance	at	

trial.”).	 	 The	 question	 here	 is	 whether	 a	 prelitigation	 screening	 panel	
24	

proceeding	held	pursuant	to	24	M.R.S.	§§	2851	to	2859	is	a	“trial”	within	the	

meaning	of	section	251.		

      [¶45]		After	a	party	files	a	notice	of	claim	of	medical	malpractice,	pursuant	

to	the	Maine	 Health	Security	Act,	24	 M.R.S.	§	2853,	“a	prelitigation	screening	

panel	must	hear	cases	of	alleged	medical	malpractice	before	a	complaint	is	filed	

in	 court.”	 	 Hill	 v.	 Kwan,	 2009	 ME	 4,	 ¶	 2,	 962	 A.2d	 963;	 see	 24	 M.R.S.	

§§	2851-2859,	 2903	 (2017).	 	 That	 proceeding	 is	 not	 the	 trial,	 however,	 but	

rather	 is	 a	 device	 intended	 to	 “encourage	 early	 resolution	 of	 [meritorious]	

claims	prior	to	commencement	of	a	lawsuit.”		24	M.R.S.	§	2851(1)(A)	(emphasis	

added);	see	also	Gafner	v.	Down	E.	Cmty.	Hosp.,	1999	ME	130,	¶	22,	735	A.2d	969	

(“The	panel	screening	process	is	intended	to	be	.	.	.	an	independent	mechanism	

for	 the	 initial	 screening	 of	 claims	 of	 professional	 negligence.”	 	 (emphasis	

added)).		“Although	the	screening	panel	is	an	agency	of	the	courts,	it	cannot	be	

considered	an	inferior	court	or	quasi-judicial	tribunal	.	.	.	.”		Sherburne	v.	Med.	

Malpractice	 Prelitigation	 Screening	 Panel,	 672	 A.2d	 596,	 598	 (Me.	 1996);	 see	

also	 Hill,	 2009	 ME	 4,	 ¶	 12,	 962	 A.2d	 963	 (“The	 screening	 panel	 has	 no	

independent	 judicial	 authority—it	 cannot	 enter	 a	 final	 judgment,	 and	 its	

decisions	have	no	precedential	value.”).	
                                                                                    25	

	     [¶46]	 	 For	 that	 reason,	 although	 a	 prelitigation	 screening	 panel	

proceeding	is	adversarial	and	provides	a	forum	for	the	parties	to	present	the	

merits	of	their	cases,	the	panel	process	is	not	a	“trial,”	which	is	the	event	that	

triggers	 the	 court’s	 authority	 to	 award	 expert	 witness	 fees	 and	 expenses	

pursuant	to	section	251.		The	court	therefore	did	not	err	by	denying	EMMC’s	

request	 for	 an	 award	 of	 expert	 witness	 costs	 generated	 by	 the	 prelitigation	

panel	proceeding.			

                                 IV.		CONCLUSION	

      [¶47]	 	 In	 summary,	 the	 court	 did	 not	 err	 by	 determining	 that	 EMMC’s	

decision	to	discharge	Randy	from	inpatient	treatment	was	supported	by	the	law	

and	the	facts.		Further,	the	court	properly	denied	EMMC’s	request	for	an	award	

of	 costs	 for	 expert	 witness	 fees	 and	 expenses	 incurred	 during	 the	 statutory	

panel	proceeding.			

      The	entry	is:	

                   Judgment	affirmed.		
	
	     	      	     	      	      	
	                         	
26	

Peter	Clifford,	Esq.	(orally),	and	Andrew	P.	Cotter,	Esq.,	Clifford	&	Clifford,	LLC,	
Kennebunk,	for	appellants	Randy	N.	Oliver,	II	and	Nicole	Jernigan	
	
Edward	W.	Gould,	Esq.	(orally),	Sandra	L.	Rothera,	Esq.,	and	Mariann	Z.	Malay,	
Esq.,	Gross,	Minsky	&	Mogul,	P.A.,	Bangor,	for	appellee	Eastern	Maine	Medical	
Center	
	
	
Penobscot	County	Superior	Court	docket	number	CV-2013-126	
FOR	CLERK	REFERENCE	ONLY	
