*1 аppeal, freely Fletcher could through package elect to receive the benefit offered 2(2) cash in lieu of In employer. benefits. this $56.88 Pursuant to section of former sense, individually Fletcher could do what wage Title Fletcher’s deductions for the collectively Ashby— the union could do in purpose purchasing health insurance wages аlter the allocation of between take- employee’s average should be included in the pay home plan. and contributions to a benefit weekly wage. emphasize We that Fletcher does not seek is; entry n employer’s to include the contributio of Appellate The decisions of the Division and per weekly wage, month in the $98.93 but the Cоmmission are vacated. Remanded to only portion that was deducted from his Compensation the Workers’ Board fur- effect, wages. Hanington Brothers has proceedings ther opinion consistent with the employees directly asked its to contribute herein. purchase Hanington of health benefits. advantage Brothers now seeks to take of this cоncurring. All plan feature of the to contend that Fletcher’s contribution resulted a reduction of his
wages. note We the amount of the
employee’s depends upon contribution coverage
nature of the health insurance
employee elects to If receive. we were to weekly
measure Fletcher’s wage solely by
reference to pay, Hanington his take-home as suggests,
Brothers we would be forced to employee conclude that an who elects to re Rodney P. CHOROSZY ceive individual health insurance under the plan higher same has a average weekly than employee, Fletcher, like who elects to Debrа
purchase health insurance for his entire fami ly. Clearly, provide Fletcher’s decision to health insurance family for his has no rela Siew S. TSO.
tionship capacity whatsoever his future Supreme Judicial Court Maine. earn.4
It is clear from the record that Argued Fletcher June capacity week; per to earn in- $350 Sept. Decided deed, he wagе during earned this his first 60 days employment. weekly Fletcher’s pay inju-
take-home prior reduced to his
ry, inability not due to an prior to earn his
wage, voluntarily but because he chose to
purchase
family
health insurance for his
part
may
Commission relied in
on the fact that
sional decision to tax or not to tax
be based
wage
$56.88
variety
completely
reduction is not considered in-
on a
of reasons
unrelated to
come under
employee's capacity
section 125 of the Internal Revenue
We
to earn.
note that
Code. 26 U.S.C.
This fact is not
section 125 of the Internal Revenue Code was
dispositive.
Ashby,
primarily
See
Because
from
claim,
the dismissal of their
M.R.Civ.P.
12(b)(6),
accept
allegations
as true the
of claim.
their notice
See Hall v. Board of
Protection,
(Me.
Env’tl
*3
1985) (examined complaint
alleged
for
facts
support recovery
that would
under some the
ory). The
of claim
notice
asserts that Rod
ney Choroszy
January
consulted Tso in
Choroszy
hearing
after
in
noticed some
loss
Choroszy,
his left ear. Tso examined
con
audiological
ducted
evaluation that con
loss,
hearing
firmed the
and ordered
CT
Scan at the Southern Maine Medical Center
February
report
by
issued
the
“I
Medical Center to Tso stated that:
Smith,
(orally),
Elliott,
Robert H. Furbish
here,
any
enhancing
see
obvious
tissue
how
Portland,
Garmey,
plaintiffs.
Smith &
еver small lesions could be missed. For
evaluation,
symptoms
further
if there are
Petruccelli,
Martin,
Gerald F.
Petrucelli &
side,
relating
mag
to the left
should include
Portland, for amicus curiae.
imaging
netic resonance
of this
The
area.”
Pope (orally),
Deborah L.
Christopher D. notice of claim
further asserts
Tso told
Nyhan, Preti, Flaherty,
Pachios,
Beliveau &
Chorоszy
negative,
his CT Scan was
never
Portland, for defendant.
provided Choroszy
copy
report,
with a
of the
suggested magnetic
im
and never
resonance
WATHEN, C.J.,
ROBERTS,
Before
aging.
GLASSMAN,. CLIFFORD, RUDMAN,
Choroszy’s
unchanged
condition remained
DANA,
LIPEZ,
JJ.
experienced
until the fall of 1992 when he
numbness,
loss,
hearing
facial
RUDMAN, Justice.
problems
with vision and balance.
doctor,
then consulted another
who referred
Rodney
Choroszy ap
and Debra
Mehalie,
neurosurgeon,
him to a
Thomas
who
peal
judgment
from the
Supe
entered in the
Choroszy’s
found a tumor in
ear
left
canal.
(York
J.)
Fritzsche,
County,
rior Court
prior
claim
to
The notice of
asserts
the
granting Siew S. Tso’s motion to dismiss the
1992, Choroszy
fall of
unaware
Choroszys’
by
action as barred
the medical
diagnоsis,
reason to doubt Tso’s 1988
and as
malpractice
limitations.
negligent misdiagnosis
a result of Tso’s
(1990).1
§
Choroszys
M.R.S.A.
The
treatment, Choroszy
significant
has suffered
contend that
the statute of limitations vio
injury.
“Open
provision
lates the
Courts”
Constitution,
I,
§
Maine
Me.Const. art.
Choroszys
statutory
filed a
notice of
equal protection
and the
17, 1993,
clauses of the Maine
against
February
claim
Tso on
and United States Constitutions. Me.Const.
nearly
years
Choroszy’s
five
after
last con-
Const,
6-A;
§
responded
U.S.
amend. XIV. We
tact with Tso. The doctor
with a
12(b)(6)
find no constitutional violation and therefore
successful Rule
motion to dismiss the
judgment.
we affirm the
claim as barred
statute of
prior
1. Medical
actions in Maine are com-
defenses ...
to submission of
affirmativе
by filing
person
2853(5).
menced
a notice of claim on the
panel.”
§
the case to the
M.R.S.A.
professional negligence.
accused of
24 M.R.S.A.
appropri-
The statute of limitations defense was
present
The claimant must then
ately
Superior
in the form
submitted
Court
pre-litigation panel
pursu-
her claim to a
before
Choroszys’
of a motion to dismiss the
claim. For
system.
the claim in the court
24 M.R.S.A.
procedural purposes,
Choroszys'
we treat the
no-
(1990). By agreement
parties
§§ 2851-59
complaint challenged by
tice of claim as a
a Rule
chair, however,
panel
ator
the direction of the
12(b)(6)
motion
dismiss.
Superior
may
"dispositive legal
Court
resolve
negligence.
passage
of a statute of limitatiоns that would
professional
limitations for
(1990).2
Legis.Rec.
cut off some causes of action. See
Choroszys’
§ 2902
M.R.S.A.
Henderson).
(statement
Rep.
timely appeal followed.
Ultimately
a conclusion on
unable to reach
I.
Courts Provision
issue,
Legisla-
the statute of limitations
of Maine Constitution3
addressing the
postpone
ture
resolved
(1977).4
problem.
Legis.Rec.
quеstion
are
We
asked
constitutional
by requiring medical
whether
unresolved, Myrick
issue still
With the
within three
victim
discover
(Me.1982),
987, 997
“giving
years of
act or omission
rise to”
Legisla-
gap
fill in the
left
acted to
injury,
imposed “time
of an
ture.
held that
the absence
We
*4
deny meaningful
so unreasonable as to
directive,
limits
obligat-
explicit legislative
we were
judicial procеss”
and violated
access
the
judicially
time of accrual of a
ed to
the
define
provision of our Maine Con
the
Courts
conclud-
action. Id. at 989-91. We
cause of
v.
Medical Ctr.
577
malpractice
stitution. Maine
in
of
where
ed that
cases medical
1173,
Choroszys’
A.2d
1176
in
object
patient’s
foreign
was left
the
they did
know
rear
position is that
not
and
body,
aрpropriate time of accrual was at
the
sonably
not
known about the
reasonably
could
have
have
the
victim
time the
should
negligent misdiagnosis by Tso until Fall
Id.5
the harm done
him.
discovered
Choroszys, it
According to the
is un
1992.
1985,
response
growing
In
in
to a
concern
reasonable to cut off a cause of action before
care and medical
fоr the costs of health
potential
reasonably
the
claimant could
dis
again
malpractice insurance,
Legislature
our
that
has a
of action.
cover
he
cause
litigation.
malpractice
considered
however,
P.L.1985,
two-year
ch.
After a
Legislature,
of our
See
804.
judgment
(statement
1977,
of
contrary.
Legislature
study, Legis.Rec.
2
1165
to the
the
is
see,
debate,
2
e.g.,
Carpenter),
much
changing the statute of limitations Sen.
debated
(1986) (statement
Repre
of
Legis.Rec.
it
1467
original
enacted the
Máme Health
when
Allen)
1977,
by
Act,
(strong arguments made
Security
legisla-
P.L.
ch. 492.
sentative
sides),
amended the
Legislature
both
the
Legislature’s
tive
reflects the
aware-
debate
redefine the time
Act to
of
issues of fairness rаised
the Maine Health Care
ness
the
(Me.1982) (redefin-
James,
987,
part:
444 A.2d
989-91
reads in relevant
2. The statute
§
mal-
cases of medical
accrual in
753 for
negligence
professional
Actions for
shall be
practice).
E
L.D 727
House
Amendment
years
within 3
after the cause of
commenced
(108th
changed
Legis.1977)
the med-
would have
section,
purposes
this
action
Fоr
of
accrues.
malpractice
to two
of limitations
ical
statute
of
act
cause
action accrues on the date
the
of
discovery
years
the act of
after the reasonable
of
injury....
giving rise to the
This
of omission
accompanying
malpractice, with
time of re-
apply where the cause of
section does not
yеars
pose,
discovery,
the
regardless of
six
after
leaving
foreign
upon
of a
action
is based
postpone
act
House voted to
or omission. The
body,
object
of
in which case
cause
2
indefinitely
consideration of
amendment.
plaintiff
action shall accrue when the
discovers
(1977).
Myrick
Legis.Rec.
See
2090-91
also
reasonably should hаve discovered the
or
(discussing
legisla-
at
has violated this constitutional
limitations, however,
All
Choroszys
argue
have the
that the stat
claims,
cutting
yet
equal
of
“power
protection
effect
off
of ute violates the
clauses of
legislature
period
expi
to shorten the
of
both the United States and Maine Constitu
recognized by
by irrationally distinguishing
ration ... has been too
often
tions
highest respectability
misdiagnosis
foreign-object
courts of the
to
from
vic
victims
be
XIV;
questioned now.” Maine Medical Ctr. v.
tims.
amend.
Me.Const.
U.S. Const.
Cote,
(quoting Sampson
disagree.
Maine Constitution
decision
a statute of
Equal
rationally
legitimate goal
lent to those
federal
Protection
related
a
Rubbish,
equal protection
Tri-State
Inc. v. Town
valid
Clause.
therefore
under
Gloucester,
Furman,
analysis.
F.Supp.
New
634 A.2d
1287 n. 3
Houk v.
(D.Me.1985)
“Equal protection analysis hing
(rejecting
1032-35
similar
challenge).
es on the standard
review.
If the law at
infringes a
issue
fundamental constitutional
entry is:
right
inherently suspect
or involves an
classi
Judgment affirmed.
fication,
religion,
as race
law
such
or
then the
subjected
scrutiny.”
is
to strict
Id. at 1287. WATHEN, C.J.,
LIPEZ,
CLIFFORD
class,
right
suspect
a fundamental
Absent
or
JJ., concurring.
test,”
apply
relationship
the “rational
ROBERTS, Justice, with whom
simply inquire
is ration
whethеr the statute
DANA, JJ., join,
GLASSMAN
ally
legitimate
Id.
related to
state interest.
concurring.
right
We have
held
Supe-
agree
I
to affirm
of the
the decision
pursue a cause of
a fundamental
action is not
separately
I
I do
rior Court. write
because
right, Maine
Ctr.
Medical
I
agree
analysis
not
with the
of Part
at
and it is
that medical mal
settled
Instead,
adopt
opinion.
I
Court’s
would
practice
plaintiffs
qualify
tort
as
reasoning of the
court.
trial
See,
Maurer,
suspect
e.g.,
class.
Carson
Choroszys’ position
accept
120 N.H.
A.2d
than
Rather
they “reasonably
Therefore the correct
review is
have known”
standard of
could not
Tso,
court ana-
relationship
negligence
the rational
test. The state’s
the trial
*6
objеctive
Choroszy’s
lyzed
control
of medical mal
the difference
situ-
the cost
between
—to
object
practice
gen
foreign
surgical
insurance
and of health care
ation and that of
one,
legitimate
patient.
agree
with that
eral —is
and a statute
I
conclusion,
way
limitations is a
to achieve that
not be unrea-
rational
court’s
that it would
objective.
expect Choroszy
a second
See Maine Medical Ctr.
sonable to
to seek
(statute
opinion
gence. University, v. Emory Allrid 249 Ga. (1982); v. Kan 285 S.E.2d Ross Ctr., Hosp. City
sas Gen. & Medical (Mo.1980). Certainly, there
S.W.2d arguments ways. are both See Bolton A. et al. Kathleen WHITTEN (Me.1988) Caine, (rejecting rationale); Hicks, evidentiary supra at 634- GENERAL MUTUAL CONCORD (plaintiffs carry proof so evi- burden of et al. INSURANCE CO. dentiary unpersuasive; concerns are studies improve repose that statutes of show Supreme Maine. Judicial Court of rates; unfairly insurance Argued May groups). protect certain interest Once Sept. Decided arguments those evaluated choice, however, policy made a we cannot opposite legislative adopt the view unless the Myrick v.
action is unconstitutional. See