MAINE SUPREME JUDICIAL COURT                                                            Reporter of Decisions
Decision: 2014 ME 19
Docket:   Cum-12-562
Argued:   September 12, 2013
Decided:  February 11, 2014

Panel:          ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.*


                               ESTATE OF DANIEL NICKERSON

                                                       v.

                                         ALAN CARTER et al.

JABAR, J.

         [¶1] Cecelia Nickerson, as personal representative of the Estate of Daniel

Nickerson, appeals from a judgment entered by the Superior Court (Cumberland

County, Warren, J.) in favor of Alan Carter, D.O., and Mercy Primary Care, after a

jury found that Dr. Carter was negligent but was not the legal cause of Daniel

Nickerson’s death. The Estate makes several arguments on appeal, contending that

the trial court erred by (1) admitting the findings of the medical malpractice

screening panel, (2) revealing to the jury the screening panelists’ occupations,

(3) excluding evidence pertaining to Nickerson’s family’s medical history,

(4) permitting Dr. Carter’s counsel to change a peremptory challenge during jury

selection, and (5) failing to instruct the jury on the “loss of chance” doctrine.




   *
       Silver, J. sat at oral argument but did not participate in the development of the opinion.
2

      [¶2]   We agree with the Estate that the Panel Chair’s consideration of

evidence outside the record violated the Maine Health Security Act (MHSA or

Act), see 24 M.R.S. § 2854(1) (2013), and Maine’s procedural rules, see M.R.

Civ. P. 80M(g)(9). Because of these violations, we conclude that the trial court

erred in admitting the screening panel’s findings and we vacate the court’s

judgment without addressing the merits of the Estate’s remaining arguments.

                               I. BACKGROUND

      [¶3] The evidence in the record supports the following facts, which are

viewed in the light most favorable to the jury’s verdict. See Jacob v. Kippax,

2011 ME 1, ¶ 2, 10 A.3d 1159. In December 1993, Dr. Carter began seeing

Nickerson as a patient. As part of an initial visit, Dr. Carter withdrew blood from

Nickerson, which revealed that Nickerson’s cholesterol level was “moderate[ly]

elevat[ed].” Dr. Carter expressed to Nickerson that his elevated levels may be a

“risk factor for developing cardiovascular disease.” Dr. Carter decided that the

proper course of action would be to follow up with Nickerson, as needed, with

another exam in the next two years.

      [¶4] From 1994 to 1997, Dr. Carter saw Nickerson intermittently. During

that time, Dr. Carter did not order retesting of Nickerson’s cholesterol. In 1997,

Nickerson requested that Dr. Carter’s office conduct an examination and assist him

in completing forms necessary for him to participate in an outdoor-expedition
                                                                                    3

program. Dr. Carter signed Nickerson’s forms but again did not order retesting of

his cholesterol levels at that time.

        [¶5] In March 2001, Nickerson returned for a physical examination, during

which Dr. Carter ordered tests of his cholesterol levels. Nickerson’s tests revealed

that his cholesterol levels had risen. Dr. Carter sent Nickerson a letter informing

him of the results and providing information about corrections he could make to

his diet. Although Dr. Carter made a notation to recheck Nickerson’s cholesterol

levels in six to twelve months, Nickerson was not scheduled for retesting within

that time.

        [¶6] In 2004, Nickerson’s cholesterol levels were “showing improvement,”

but were “still high.” Dr. Carter recommended that Nickerson continue to follow

his dietary recommendations and planned to recheck his cholesterol levels in three

to six months. However, Nickerson was never scheduled for testing within that

time.

        [¶7]   In May 2006, Nickerson saw Dr. Carter for an unrelated reason.

Despite Nickerson’s history of elevated cholesterol levels and the nearly two years

that had passed since his last visit, Dr. Carter did not order retesting at that time.

On July 15, 2006, after kayaking with his wife and a family friend, Nickerson, then

forty-eight years old, suffered a fatal heart attack. At the time of his death, one of

Nickerson’s major coronary arteries was 90-95% blocked, leading the medical
4

examiner to conclude that he died as a result of “[s]evere multifocal coronary

atherosclerosis,” in other words, a blockage in the arteries of his heart due to

cholesterol buildup.

      [¶8] On June 1, 2009, in accordance with the MHSA, Nickerson’s wife, as

personal representative of the Estate, filed a notice of claim against Dr. Carter

asserting claims for professional negligence, 24 M.R.S. § 2502(7) (2013), and

wrongful death, 18-A M.R.S. § 2-804(a) (2013). See 24 M.R.S. § 2853(1) (2013).

The Estate also asserted claims against Dr. Carter’s employer, Mercy Primary

Care, alleging that it was vicariously liable for Dr. Carter’s negligent treatment.

      [¶9] Pursuant to the MHSA, the Estate was required to first present its claim

to the medical malpractice prelitigation screening panel. See 24 M.R.S. § 2854(1).

On July 13, 2011, the three-member panel conducted a testimonial hearing during

which both parties presented expert witnesses on the standard of care and on

causation. The screening panel decided unanimously for Dr. Carter, finding that he

had not breached the standard of care and that his actions were not the legal cause

of Nickerson’s death. On July 15, 2011, the Panel Chair notified the parties of the

panel’s decision, stating:

      The panel was unanimous for [Dr. Carter]. For what it is worth my
      family physician has never scheduled a follow-up visit for me but,
      rather, asks me to do it myself. Furthermore, her practice does not
      schedule more than six months in advance so I have to remember to
      call every year for my annual exam. THUS, [I] found [Dr. Carter’s
                                                                                 5

      expert’s] testimony more credible regarding the practices of
      reasonable physicians.

      [¶10] On August 11, 2011, the Estate filed its complaint in the Superior

Court, asserting claims of professional negligence and wrongful death.         See

18-A M.R.S. § 2-804(1); 24 M.R.S. § 2502(7).             Pursuant to 24 M.R.S.

§ 2857(1)(C) (2013), because the panel’s findings were “unanimous and

unfavorable” to the Estate, the findings were admissible in the subsequent

professional negligence action. Before trial however, the Estate filed a motion in

limine, seeking to exclude the screening panel’s findings because they were

inconsistent with the evidence presented and based on information outside the

record. See 24 M.R.S. § 2854(1); see also M.R. Civ. P. 80M(g)(9). The trial court

denied the Estate’s motion, concluding that Dr. Carter could introduce the findings

of the screening panel.

      [¶11] A five-day trial began on October 29, 2012, after which the jury

returned a unanimous verdict finding Dr. Carter negligent in his treatment of

Nickerson. However, the jury found that Dr. Carter’s negligent treatment was not

the legal cause of Nickerson’s death, and on November 5, 2012, the court entered

judgment for Dr. Carter and Mercy Primary Care. The Estate then appealed. See

M.R. App. P. 2(b)(3).
6

                                 II. DISCUSSION

      [¶12] In the unusual circumstances presented by this case, we must consider

the effect of the court’s denial of a motion in limine filed by the Estate seeking to

exclude the medical malpractice screening panel’s findings. We afford trial courts

“wide discretion” in making evidentiary rulings, and review for abuse of discretion

their rulings on the admissibility of evidence with respect to its prejudicial effect.

See Jacob, 2011 ME 1, ¶ 14, 10 A.3d 1159 (quotation marks omitted).

A.    Inconsistencies of Screening Panel’s Findings

      [¶13] The Estate first contends that the screening panel’s findings should

have been excluded because they were inconsistent with the evidence presented.

Primarily, the Estate argues that the screening panel should have found that

Dr. Carter’s own testimony, as well as the other evidence presented at the hearing,

showed that he had breached his duty of care. As a result, the Estate suggests that

the screening panel conflated the issues of breach of duty and causation when

making its findings. See 24 M.R.S. § 2855(1)(A)-(B) (2013).

      [¶14] The court could not determine whether the panel’s findings were

inconsistent with the evidence, however, because the Act requires that the

proceedings and evidence before the panel remain confidential. See 24 M.R.S.

§ 2857(1); see also M.R. Civ. P. 80M(g)(10) (“[T]he proceedings [and] evidence”

presented during “the panel hearing shall be confidential to the extent required by
                                                                                   7

statute or by order of the court.”).       Except in limited circumstances, the

confidentiality of the proceeding is to remain intact, and therefore “any evidence

and statements made by a party or [its] representative during a panel hearing . . .

may not otherwise be submitted or used for any purpose in a subsequent court

action.” 24 M.R.S. § 2857(1)(A).

      [¶15] Here, the Estate contends that the findings were inconsistent with the

evidence presented. Based on the clear mandate provided by section 2857(1), the

trial court did not err in declining to review the evidence presented to determine if

the panel’s findings were erroneous. As a result, the court did not abuse its

discretion in denying the Estate’s request to exclude the findings based on its first

contention.

B.    Consideration of Evidence Outside the Record

      [¶16]   The Estate also argues that the screening panel, specifically the

chairperson, exceeded its authority when it based its findings on evidence that was

not presented during the panel hearing.

      [¶17] Pursuant to the plain language of the MHSA, medical malpractice

screening panel members are to base their findings solely “upon [the] evidence as

presented at the hearing, the records and any expert opinions provided by or sought

by the panel or the parties.” 24 M.R.S. § 2854(1); see also M.R. Civ. P. 80M(g)(9)

(requiring the screening panel to “make its findings based on the issues and
8

evidence presented at the hearing”). By requiring the screening panel to make

findings based only on the evidence presented at the hearing, litigants are

“safeguard[ed] against appointed panelists performing their own independent

investigation[s] or deciding [cases] based on issues not addressed by the parties.”

M.R. Civ. P. 80M Advisory Committee’s Note – January, 2009.

      [¶18] This restriction on the screening panels’ scope of review is consistent

with their role as fact-finders and is fundamental to our concept of due process.

Although we have never dealt specifically with screening panels, we have

recognized in other contexts, namely with respect to administrative agencies, that it

is “improper[]” for quasi-judicial decision-makers to rely “on information obtained

outside of the record and the proceedings.” Forbes v. Town of Southwest Harbor,

2001 ME 9, ¶ 14, 763 A.2d 1183. In doing so, we recognized that due process

requires that agencies proceed exclusively upon matters “in evidence,” because

absent such a restriction, parties would have no opportunity to cross-examine or to

explain adverse evidence.     See, e.g., Pub. Utils. Comm’n v. Cole’s Express,

153 Me. 487, 495-96, 138 A.2d 466 (Me. 1958). Likewise, it is as “elementary, as

it is fundamental” to our concept of due process that administrative or adjudicatory

bodies’ decisions not be based on their own “purported knowledge which is not

made a part of the record.” Id. at 496, 501 (quotation marks omitted).
                                                                                 9

      [¶19]    The same logic and limitations apply to medical malpractice

screening panels. Compare 5 M.R.S. § 9059(4) (2013) with 24 M.R.S. § 2854(1).

Although screening panels are not administrative agencies, see Sherburne v. Med.

Malpratice Prelitigation Screening Panel, 672 A.2d 596, 597 (Me. 1996), they are

“agenc[ies] of the court,” see Hill v. Kwan, 2009 ME 4, ¶ 12, 962 A.2d 963, and

the screening panel’s chairperson is appointed by the Chief Justice of the Superior

Court to serve “as [a] competent quasi-judicial officer[].” Report of Medical

Malpractice Subcommittee, Maine Civil Rules Advisory Committee (Sept. 2008)

included with M.R. Civ. P. 80M Advisory Committee’s Note to 2009 promul.; see

also M.R. Civ. P. 80M(b)(1). The Panel Chair is then “responsible for the further

conduct of the proceedings,” M.R. Civ. P. 80M(b)(2), including overseeing the

panel hearing and making evidentiary rulings that “will promote the fair, efficient

and inexpensive determination of the issues,” M.R. Civ. P. 80M(g)(7).

      [¶20] Here, the Panel Chair violated statutory and procedural rules. In an

email to the parties’ counsel, notifying them that the screening panel had found

against the Estate, the Panel Chair wrote:

      For what it is worth my family physician has never scheduled a
      follow-up visit for me but, rather, asks me to do it myself.
      Furthermore, her practice does not schedule more than six months in
      advance so I have to remember to call every year for my annual exam.
      THUS, [I] found [the defendant’s expert] more credible regarding the
      practices of reasonable physicians.
10

(Emphasis added.)

      [¶21] It is clear from the Panel Chair’s email that she considered evidence

that was never presented during the hearing. What is more significant is the

importance that this outside information played in her decision. As illustrated by

the Panel Chair’s own emphasis—“THUS, [I] found [the defendant’s expert’s]

testimony more credible”—her decision was not based solely on the evidence

presented, but was determined by comparing Dr. Carter’s treatment of Nickerson

to her experiences with her own family doctor.

      [¶22] To put the Panel Chair’s statement into context, the screening panel

heard expert testimony from both sides regarding whose responsibility it was to

schedule follow-up examinations. Although we are cognizant of the difficult task

that fact-finders face in medical malpractice cases, especially in regard to

credibility determinations between competing experts, making a determination on

the basis of evidence not presented at the panel hearing is fundamentally wrong

and implicates the due process rights of the Estate. Furthermore, considering

evidence outside the record is a clear violation of the Maine Health Security Act as

well as our procedural rules. See 24 M.R.S. § 2854(1); M.R. Civ. P. 80M(g)(9).

      [¶23] The Act’s statutory scheme does not provide aggrieved parties the

opportunity to directly challenge the screening panel’s findings. Rather, the proper

procedure is to challenge the admissibility of the panel’s findings during the
                                                                                                           11

subsequent medical malpractice action.1                     See Sherburne, 672 A.2d at 597.

Although the statute designates the panel proceedings as confidential, we

emphasized that trial courts retain their “inherent power to protect the integrity of

the judicial process by controlling the presentation of evidence at the trial.” Id. In

doing so, we stated that the statute did not “preclude appropriate judicial

consideration” in determining whether the panel’s findings “comply with the terms

of the Health Security Act.”2 Id.

        [¶24] Here, the Estate raised the issue of the panel’s findings through its

motion in limine and highlighted to the court the panel’s failure to “comply with

the terms of the Health Security Act.” Id. In the face of a clear violation of

statutory and procedural rules, the court abused its discretion by allowing the

findings of the screening panel to be admitted in evidence. As a result of these

“highly prejudicial” findings being presented to the jury, see Irish v. Gimbel,

1997 ME 50, ¶¶ 11, 14, 691 A.2d 664, we vacate and remand for a new trial in

which the screening panel’s findings shall be excluded.

   1
       In Sherburne v. Medical Malpractice Prelitigation Screening Panel, 672 A.2d 596, 598 (Me. 1996),
we affirmed the court’s dismissal of plaintiff’s plenary action to challenge the screening panel’s findings.
In doing so, we explained that any “challenge of the screening panel’s findings” must be presented to the
trial court directly during the subsequent “medical malpractice action.” Id. at 597.
   2
       Such “judicial consideration whether . . . the findings comply with the terms of the Health Security
Act,” Sherburne, 672 A.2d at 597, must be limited to the panel’s findings themselves and not the
proceedings held before the panel, see 24 M.R.S. § 2857(1) (2013) and M.R. Civ. P. 80M(g)(10). The
trial court’s “inherent power to protect the integrity of the judicial process by controlling the presentation
of evidence at the trial,” Sherburne, 672 A.2d at 597, does not permit it to consider the panel proceedings,
which are designated confidential by statute and the Maine Rules of Civil Procedure.
12

        The entry is:

                           Judgment vacated. Remanded to the Superior
                           Court for further proceedings consistent with the
                           opinion herein.



On the briefs:

        John P. Flynn, III, Esq., Flynn Law Office, Portland, for
        appellant Estate of Daniel Nickerson

        Philip M. Coffin, III, Esq., and Maureen M. Sturtevant, Esq.,
        Lambert Coffin, Portland, for appellees Alan Carter and Mercy
        Primary Care

        Sandra L. Parker, Esq, Maine Hospital Association, Augusta,
        for amicus curiae Maine Hospital Association

        Robert H. Furbish, Esq., Berman & Simmons, P.A., Lewiston,
        for amicus curiae Maine Trial Lawyers Association


At oral argument:

        John P. Flynn, III, Esq. for Estate of Daniel Nickerson

        Maureen Sturtevant, Esq., for appellees Alan Carter and Mercy
        Primary Care



Cumberland County Superior Court docket number CV-2009-323
FOR CLERK REFERENCE ONLY
