MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision:    2019 ME 139
Docket:      Yor-18-512
Submitted
  On Briefs: June 26, 2019
Decided:     August 20, 2019

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



                                    ANN SALERNO

                                            v.

                         SPECTRUM MEDICAL GROUP, P.A.


HJELM, J.

         [¶1] In December of 2017, Ann Salerno filed a complaint in the Superior

Court (York County) against Spectrum Medical Group, P.A., stating a claim for

personal injury based on premises liability. In her complaint, Salerno alleged

that more than three years earlier she slipped, fell, and sustained injuries in the

locker room of a facility “owned and run” by Spectrum. Spectrum moved for

the court to dismiss Salerno’s complaint on the ground that, in reality, the claim

was for medical negligence, which must be brought in accordance with the

procedural requirements of the Maine Health Security Act (MHSA), 24 M.R.S.

§§ 2501-2988 (2018).          The court (O’Neil, J.) entered an order denying

Spectrum’s motion, and Spectrum appeals that order. We agree with Spectrum

that this interlocutory appeal falls within an exception to the final judgment
2

rule. Reaching the merits, we affirm the order denying Spectrum’s motion to

dismiss.

                                I. BACKGROUND

      [¶2] The following facts are drawn from Salerno’s complaint, which are

deemed admitted for purposes of this appeal, see Lawson v. Willis, 2019 ME 36,

¶ 2, 204 A.3d 133, and from the procedural record.

      [¶3] In June of 2014, Salerno underwent hip replacement surgery, after

which she was required to follow strict precautions to protect her new hip. Two

months after the surgery, on August 6, 2014, Salerno went to a facility in Saco

owned by Spectrum to engage in water therapy. Although the water therapy

itself took place in an area of the premises that was operated by a different

entity, Spectrum operated a locker room where Salerno changed from her

swimsuit into her street clothes. Because of the surgery, Salerno needed to use

a bench to change her clothes. That day, however, the only bench in the locker

room was covered by a heavy rubber mat that should have been on the floor in

front of a nearby shower stall. The shower stall had a handicapped-accessible

seat, which Salerno attempted to use because the bench was not available.

While attempting to get to the seat in the shower stall, Salerno slipped, fell, and

was injured.
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      [¶4] More than three years later, on December 11, 2017, Salerno filed a

complaint against Spectrum stating a tort claim for premises liability. Spectrum

moved to dismiss Salerno’s claim, see M.R. Civ. P. 12(b)(6), asserting that the

facts alleged in the complaint actually constitute an action for professional

negligence as defined by the MHSA, see 24 M.R.S. § 2502(6), and that her claim

is therefore controlled by that Act, see id. § 2903(1) (stating “[n]o action for

professional negligence may be commenced until the plaintiff has” complied

with the requirements of this section). Spectrum further asserted that because

the MHSA provides a three-year statute of limitations for “actions for

professional negligence,” id. § 2902, Salerno’s complaint was time-barred.

      [¶5]   In an order issued in November of 2018, the court denied

Spectrum’s motion, concluding that Salerno’s claim, as alleged, does not arise

out of the provision or failure to provide healthcare services within the

meaning of the MSHA, see 24 M.R.S. § 2502(6), and therefore Salerno’s claim

“does not fall under the MHSA and was timely commenced,” see 14 M.R.S. § 752

(2018) (stating that “[a]ll civil actions shall be commenced within 6 years after

the cause of action accrues . . . except as otherwise specially provided”).

Spectrum filed this interlocutory appeal challenging the court’s denial of its

motion to dismiss. See 14 M.R.S. § 1851 (2018).
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                                          II. DISCUSSION

         [¶6] Before we can consider the merits of Spectrum’s contentions on

appeal, we must first address whether those contentions are cognizable at this

stage of the case.

A.       Interlocutory Appeal

         [¶7] “The denial of a motion to dismiss is not a final judgment, and

ordinarily we would dismiss the appeal from the denial as an interlocutory

appeal.” Efstathiou v. Aspinquid, Inc., 2008 ME 145, ¶ 23, 956 A.2d 110. “A party

urging that we reach the merits of an otherwise interlocutory appeal has the

burden of demonstrating to us that . . . [an] exception[] to the final judgment

rule justifies our reaching the merits of the appeal.” Sanborn v. Sanborn, 2005

ME 95, ¶ 6, 877 A.2d 1075. Spectrum contends that this interlocutory appeal is

excepted from the final judgment rule because it falls within the death knell

exception.1



     1Spectrum also contends that its challenge is cognizable on appeal either pursuant to the judicial
economy exception to the final judgment rule or because there exist extraordinary circumstances
justifying an ad hoc exception to that rule. For the following reasons, neither assertion is persuasive.

   First, the judicial economy exception to the final judgment rule arises only “in those rare cases in
which appellate review of a non-final order can establish a final, or practically final, disposition of the
entire litigation. It applies only when a decision on the appeal . . . regardless of what it is, would
effectively dispose of the entire case.” Bond v. Bond, 2011 ME 105, ¶ 12, 30 A.3d 816 (alteration in
original) (quotation marks omitted). That is not the case here because if we were to affirm the court’s
decision—as we do—the case would remain pending.
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       [¶8] The death knell exception to the final judgment rule justifies

consideration of issues raised on an interlocutory appeal only if awaiting a final

judgment will cause “substantial rights of a party [to] be irreparably lost.” Fiber

Materials, Inc. v. Subilia, 2009 ME 71, ¶ 14, 974 A.2d 918 (quotation marks

omitted). “A right is irreparably lost if the appellant would not have an effective

remedy if the interlocutory determination were to be vacated after a final

disposition of the entire litigation.”              Id. (quotation marks omitted).                This

exception is available “only when the injury to the appellant’s claimed right,

absent appeal, would be imminent, concrete and irreparable.”                                Id. ¶ 16

(quotation marks omitted); see e.g., Geary v. Stanley Med. Research Inst., 2008

ME 9, ¶ 11, 939 A.2d 86 (the denial of summary judgment based on the defense

of immunity is immediately reviewable); Morse Bros., Inc. v. Webster, 2001 ME



   Second, the circumstances of this appeal are not so “extraordinary” as to allow an ad hoc exception
to the final judgment rule. Compare Fitzgerald v. Bilodeau, 2006 ME 122, ¶ 5, 908 A.2d 1212
(concluding that absent extraordinary circumstances, “an immediate appeal from a denial of a motion
to dismiss for forum non conveniens under the Uniform Child Custody Jurisdiction and Enforcement
Act . . . is inappropriate”), and IHT Corp. v. Paragon Cutlery Co., 2002 ME 68, ¶ 7, 794 A.2d 651
(concluding that the denial of a motion to dismiss for lack of personal jurisdiction does not constitute
extraordinary circumstances), with First Nat’l Bank of Bos. v. City of Lewiston, 617 A.2d 1029, 1030-31
(Me. 1992) (concluding that “extraordinary circumstances” are present where an appeal is taken
from an interlocutory order permitting the sale of property for the benefit of an interest holder but
in which the appellant claims to have a senior interest, because “a later finding that the [appellant]
was indeed the holder of a senior interest would be hollow”), and Bar Harbor Banking & Tr. Co. v.
Alexander, 411 A.2d 74, 77 (Me. 1980) (concluding that to avoid “judicial interference with
apparently legitimate executive department activity . . . and to safeguard the separation of powers,”
we will consider an interlocutory appeal); see also Estate of Dore v. Dore, 2009 ME 21, ¶ 16, 965 A.2d
862.
6

70, ¶ 15, 772 A.2d 842 (the denial of a special motion to dismiss pursuant to

anti-SLAPP legislation is immediately reviewable), abrogated in part by Nader

v. Me. Democratic Party, 2013 ME 51, ¶ 12 n.9, 66 A.3d 571 (stating the correct

standard of review for a special motion to dismiss); Moffett v. City of Portland,

400 A.2d 340, 343 n.8 (Me. 1979) (the denial of a motion for a preliminary

injunction to enjoin the disclosure of confidential records is immediately

appealable).

      [¶9]     The determination of whether the death knell exception is

applicable to a particular case rests on a fact-specific analysis. See Fiber

Materials, Inc., 2009 ME 71, ¶ 14, 974 A.2d 918. We must therefore consider

whether the MHSA in particular provides Spectrum with substantial rights and,

if so, whether those rights will be irreparably lost if the court’s order denying

the motion to dismiss is not reviewable until a final judgment is entered.

      [¶10] As we have explained, in the mid-1970s the Legislature was faced

with “an alleged national crisis in the availability and cost of medical

malpractice insurance.” Butler v. Killoran, 1998 ME 147, ¶ 9, 714 A.2d 129. As

a result, the Legislature enacted the MHSA as “comprehensive tort reform

within the health care industry designed to stem rising malpractice insurance
                                                                                                     7

costs and ensure the continued availability of malpractice insurance to Maine

health care providers and practitioners.” Id.

       [¶11] Pursuant to the MHSA, a party bringing a claim for medical

negligence, in contrast to a conventional tort claim, must comply with a number

of distinct procedural requirements. See 24 M.R.S. §§ 2853-2858, 2903(1).

Most significantly for present purposes, the MHSA requires that, before the

claim may be heard by a court, it must be presented to a prelitigation screening

panel constituted of a judicial officer, an attorney, and a health care practitioner

or provider. Id. §§ 2852(2), 2853, 2903(1)(A)-(B). The purpose of the panel

proceeding is to allow the panel members to identify and separate meritorious

claims from nonmeritorious claims and encourage the parties to achieve an

early resolution of the litigation. Id. §§ 2851(1), 2854; see also Sullivan v.

Johnson, 628 A.2d 653, 656 (Me. 1993). Additionally, pursuant to the MHSA, the

notice of claim for professional negligence, the proceedings before the panel,

and the panel’s final determinations are generally confidential.2 24 M.R.S.

§§ 2853(1-A), 2857.




   2 The Legislature has created several narrowly circumscribed exceptions to the confidentiality

that otherwise cloaks the proceedings before the panel and the panel’s findings. All of those statutory
exceptions are limited to public disclosure of that information under certain circumstances during a
subsequent court action involving the same claim. See 24 M.R.S. § 2857(1) (2018).
8

      [¶12] Spectrum asserts that it will irretrievably lose the rights and

protections provided by the MHSA if it is denied appellate review of an order

concluding that the claim is not subject to the MHSA. We agree. If a trial court

were to erroneously deny a motion to dismiss a claim that the plaintiff has

framed as an ordinary tort claim but is actually governed by the MHSA, the

defendant would be deprived of “[t]he statutory mechanism for encouraging

the settlement, withdrawal or dismissal of claims” for medical negligence.

Sullivan, 628 A.2d at 656; cf. Morse Bros., Inc., 2001 ME 70, ¶ 15, 772 A.2d 842

(stating that the anti-SLAPP special motion to dismiss is “a statutory creature

designed to protect certain defendants from meritless litigation” and that

“[p]recluding the moving party from appealing a decision on the motion would

result in continued litigation, which is the precise harm that the statute seeks

to prevent”).

      [¶13] The confidential nature of the pre-suit proceedings for a claim

governed by the MHSA is also at stake. See 24 M.R.S. §§ 2853(1-A), 2857. In

other settings, we have concluded that a court order either requiring or

allowing for the release of allegedly confidential information is immediately

reviewable because the issue is within the purview of the death knell exception.

See Fitch v. Doe, 2005 ME 39, ¶ 10, 869 A.2d 722 (concluding that an order
                                                                                                    9

compelling the disclosure of an anonymous internet user’s identity is

immediately reviewable, and stating that the “denial of the opportunity to

appeal would make a later appeal moot, because the information at issue would

already have been released”); see also Copp v. Liberty, 2003 ME 43, ¶ 6 n.2, 818

A.2d 1050; Moffett, 400 A.2d at 343 n.8. Because the defendant’s right to

confidentiality would be irreparably lost if a claim for professional negligence

proceeded outside the MSHA framework, the death knell exception to the final

judgment rule applies for this reason as well.3

       [¶14] A conclusion that the death knell exception does not apply in these

circumstances would inappropriately minimize the importance of many of the

procedures established in the MHSA and the goals promoted by that

legislation.4     Accordingly, we conclude that, pursuant to the death knell


  3  Because the allegations in Salerno’s complaint are already public, the death knell exception is
not available to protect any right of confidentiality Spectrum would have as to that information. See
Fiber Materials, Inc. v. Subilia, 2009 ME 71, ¶¶ 10-11, 19, 27, 974 A.2d 918 (dismissing an
interlocutory appeal from an order denying the defendant’s motion to strike allegedly privileged
material from the complaint because “the information that [the defendant] asserts is privileged has
already been revealed, and is already part of the record”). Here, however, the confidentiality
Spectrum seeks to protect extends to information beyond what Salerno has alleged in her complaint.
For example, a motion for summary judgment filed later in the proceeding could reveal considerable
factual information to the public—information that would remain confidential if presented in a panel
setting.

  4  We note that the substantial rights that would be irreparably lost absent interlocutory review
do not include the three-year period of limitations applicable to claims for medical negligence—a
period that is shorter than for civil claims generally. Compare 24 M.R.S. § 2902 (2018) with 14 M.R.S.
§ 752 (2018). As we have held, the denial of a motion to dismiss an action as time-barred is not
subject to review on an interlocutory appeal. Porrazzo v. Karofsky, 1998 ME 182, ¶ 5, 714 A.2d 826;
see also Tornesello v. Tisdale, 2008 ME 84, ¶ 18, 948 A.2d 1244. Accordingly, Spectrum’s assertion
10

exception, Spectrum’s challenge to the court’s denial of its motion to dismiss

Salerno’s complaint is cognizable on this interlocutory appeal.

       [¶15] We now turn to the merits of the parties’ arguments.

B.     Spectrum’s Motion to Dismiss Salerno’s Complaint

       [¶16] “On a motion to dismiss, facts are not adjudicated, but rather there

is an evaluation of the allegations in the complaint in relation to any cause of

action that may reasonably be inferred from the complaint.” Saunders v. Tisher,

2006 ME 94, ¶ 8, 902 A.2d 830. “We examine the complaint in the light most

favorable to the plaintiff to determine whether it sets forth elements of a cause

of action or alleges facts that would entitle the plaintiff to relief pursuant to

some legal theory.” Id. (alterations omitted) (quotation marks omitted).

       [¶17] Spectrum asserts that, although Salerno framed her claim as one

for premises liability, her allegations actually constitute an action for

professional negligence as that term is defined in the MHSA and thus must be

brought pursuant to that Act’s provisions. We disagree.

       [¶18] The MHSA defines an “[a]ction for professional negligence” as

       any action for damages for injury or death against any health care
       provider, its agents or employees, or health care practitioner, his
       agents or employees, whether based upon tort or breach of


that Salerno’s claim is barred by the three-year limitation period applicable to claims of professional
negligence does not, by itself, allow an interlocutory appeal under the death knell exception.
                                                                                11

      contract or otherwise, arising out of the provision or failure to
      provide health care services.

24 M.R.S. § 2502(6) (emphasis added). Although we have described the MHSA

as “broadly worded and all-encompassing,” Saunders, 2006 ME 94, ¶ 9, 902

A.2d 830, and as “fully occupy[ing] the field of claims brought against health

care providers,” Brand v. Seider, 1997 ME 176, ¶ 4, 697 A.2d 846 (quotation

marks omitted), the statutory definition of “an action for professional

negligence” contains several clear and distinct elements, see D.S. v. Spurwink

Servs., Inc., 2013 ME 31, ¶¶ 21, 24, 65 A.3d 1196 (declining to expand the

MHSA’s definition of “health care provider” against which an action for

professional negligence may be brought pursuant to the MHSA). One of those

elements is that the claim must “aris[e] out of the provision or failure to provide

health care services.” 24 M.R.S. § 2502(6).

      [¶19] As described in her complaint, Salerno’s use of Spectrum’s locker

room to change clothes after water therapy—without more—simply does not

amount to the provision of health care services. Although Salerno was present

in the building for purposes of medical rehabilitation, she sustained her injuries

because Spectrum was allegedly negligent by allowing a rubber mat to be left

in the wrong place in the locker room—a circumstance unrelated to the

provision of health care. See Winona Mem’l Found. of Indianapolis v. Lomax, 465
12

N.E.2d 731, 732, 742 (Ind. Ct. App. 1984) (concluding that a claim, brought by a

plaintiff who tripped and fell on her way from a dressing room to a physical

therapy pool, was properly brought as a premises liability claim, and was not

within the purview of that state’s Medical Malpractice Act); Zobac v. Se. Hosp.

Dist. of Palm Beach Cty., 382 So. 2d 829, 830-31 (Fla. Dist. Ct. App. 1980)

(concluding that a claim, brought by a patient alleging that he slipped and fell

in water left on the floor of a hospital, was not required to be brought pursuant

to the Florida Medical Liability Mediation Act).

        [¶20] Consequently, Salerno’s claim that she slipped and fell while using

Spectrum’s locker room is not within the ambit of the MHSA, and the court did

not err by denying Spectrum’s motion to dismiss her complaint.

        The entry is:

                           Order affirmed.



Jonathan W. Brogan, Esq., Norman, Hanson & DeTroy, LLC, Portland, for
appellant Spectrum Medical Group, P.A.

Richard R. Regan, Esq., Moncure & Barnicle, Topsham, for appellee Ann Salerno


York County Superior Court docket number CV-2017-269
FOR CLERK REFERENCE ONLY
