On August 18, 2011, the Maine Supreme Court decided an important case on the statute of limitations in medical malpractice cases.  Baker v. Merrill Farrand, Jr., 211 ME 91 (http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me91ba.pdf).

The Maine medical malpractice statute of limitations provides for a three year limit to bring cases.  Cases are barred if they are filed more than three years from the date of the malpractice.  The Maine Supreme Court has been tough in its interpretation of the medical malpractice statute of limitations citing the need to limit medical malpractice claims.  For example, they have barred claims that were not discovered within the three years.[1] The Court has also barred a claim by someone who was mentally incapacitated by the malpractice and unable to bring a claim within the three years.

However, in this recent case, the Court recognized the continuing negligent treatment doctrine where they allowed a jury to look further back than three years if some of the negligent conduct occurred within the three year period.

The facts of the case were that at annual physicals, Mr. Baker had blood tests for prostate disease.  Even though the tests were positive for disease for several years, nothing was done.  Finally in 2006, Mr. Baker was referred to a prostate doctor who diagnosed cancer.  However, by that late date the disease had spread.  For Mr. Baker, the future looked bleak compared to what it would have been had a referral been made earlier.

This points out one of the challenges of prosecuting cancer malpractice cases.  One must prove that the delay in diagnosis changed the outcome.  It was agreed in this case that the negligent conduct within the statute of limitations probably only had a negligible effect on the outcome.  It was the delay beyond the three year period where the real harm occurred.  The holding of the Court was that as long as the negligent acts within the three year statute of limitations combines with the acts beyond the three year limit to cause harm, all the conduct was in play and could be considered by the jury.

 

Written by Stephen B. Wade

 


 

[1] The exception to this is in the single circumstance of something left behind inside the patient in surgery.