Dasha Ex Rel. Dasha v. Maine Medical Center
665 A.2d 993
Me.
1995
Check Treatment

*1 Joseph III, guardian DASHA A. friend, Margaret

and next

MAINE MEDICAL CENTER.

Supreme Judicial Court of Maine.

Argued Nov.

Decided Oct. Garmey (orally), D. Robert H.

Terrence Furbish, Garmey, & Elliott Smith Smith P.A., Portland, for Plaintiff. (orally), Petruccelli Petruccelli & Gérald F. Martin, Portland, for Defendant. WATHEN, C.J., ROBERTS, Before CLIFFORD, RUDMAN, GLASSMAN, LIPEZ, JJ.

CLIFFORD, Justice. (1989) § to 4 M.R.S.A. Pursuant 76B,1 District States M.R.Civ.P. United appear to the Court provides pertinent When it shall 1. 4 M.R.S.A. 57 appeals any court of the United or part: States, that there of the United or district court *2 C.J.) (Carter, summary parties Court judgment, for the District of Maine for a following agreed mentally certified of state Dasha has been incom- law to court: 2,1989, this petent March March since 1989. On power-of-attomey Dasha executed a in favor principles estop

Whether a de- Dasha, sister, pleading Margaret fendant from the statute of limita- and she has a malpractice tions as bar to a medical handled his affairs since that time. alleged negli- action when defendant’s 1990, Shapiro, November Dr. Barbara gent plaintiff’s treatment of a brain caused Dasha, treating requested who was Dr. damage such that was de- again sample Adelman review the tissue prived recognize the ability and file a Dasha’s tumor. result brain As a of this cause action? review, diag- Adelman his Dr. revised earlier 76B(b), Pursuant M.R.Civ.P. the United gangliog- nosis and as a identified tumor States District Court prepared a state- lioma, benign. relatively Shapi- which is Dr. by ment of material facts established Margaret ro informed Dasha the revised parties in pending the defendant’s motion for diagnosis approximately March summary judgment. a facts Those disclose years misdiag- two nine and months after the 13, 1988, Stocks, Joseph that on June Dr. time, damage nosis. At this brain Dasha’s pathologist (MMC), at Maine Medical Center was so that he severe was unable under- diagnosed Joseph Dasha with fatal brain stand either nature of the cause of his tumor, glioblastoma multiforme. Dasha un- injury legal implications original or the of the surgery derwent brain at MMC which misdiagnosis. some or of the all tumor was removed. May years On three and eleven diagnosis prognosis pro- Based on and misdiagnosis, Margaret months after Da- MMC, vided Dasha was advised under- sha notified MMC of her intent to file a go a of radiation series treatments for the July lawsuit on of her behalf brother. On purpose prolonging progno- his life. The legally incompe- was Dasha declared sis glioblastoma for survival associated with tent sister appointed and his was his if multiforme was about six months untreated guardian. In MMC’s Dasha’s answer eighteen years and if months to two treated. complaint, it asserted the of limita- Having agreed undergo radiation treat- tions as an affirmative defense. ment, approximately thirty underwent Dasha July radiation treatments from 1988 to A cause action for medical August 16, and received about 6000 “accrues date of act or on the omission rads of external beam irradiation. The initial giving injury.” rise to the M.R.S.A. diagnosis prognosis of the tumor and (1990). Therefore, § the cause of action 1,1988 August survival were confirmed on alleged misdiagno- accrued on the date of the neuropathologist, Stephen Dr. Lester Adel- sis, June 1988. this Because action was Center, England man of New 9,1992, May parties not commenced until whom were slides tumor sent for agree that this action was not filed within the classification. three-year period prescribed for medical mal- practice parties section During immediately claims after the treat- ment, agree also competent was that Dasha does not come within Dasha control of thereafter, Shortly however, provisions of 14 (Supp. his faculties. M.R.S.A. tolling resulting underwent a he was not abilities incompetence mentally due to ill action eventual severe when the cause of accrued. purposes brain For damage. undisputed fully compe- the motion It is that Dasha was any proceeding concerning are questions involved before it one or structions such of state State, law, questions more of law of which Supreme this which certificate the Judicial cause, be determinative of the and there are no sitting may, by Court as a law court written controlling precedents clear decisions of opinion, answer. Court, Supreme Judicial such federal court procedure M.R.Civ.P. 76B establishes in certifi- may certify any questions such of law of this cation situations. State Court to the Judicial for in- Martel, (Me.1993); Dugan misdiagnosis at the time of the tent Hanusek, (Me,1991); 584 A.2d at during the treatment. 746-47 radiation Equitable “is doctrine that contends, that MMC ” ‘carefully sparingly applied.’ should be raising be barred from the statute of should Inc., (quoting Sys. Vacuum *3 limitations as an affirmative defense based (Me. Buswell, 111, 119 313 A.2d Milliken v. principles equitable estoppel on of 1973)). the doctrine “Proper application of negligent diagnosis prognosis own led its estoppel rests on the factual of of brain to the radiation treatment that or that declarations acts determination the understanding or incapable rendered him of party upon induced the relied must have legal rights. Finding asserting his none of to what seeking estoppel the do to enforce precedents controlling, this Court’s the Unit- detriment, would and what he resulted to of ed States District Court for the District & not have done.” otherwise Shackford question. of Maine certified the Exercise Kennebunk, Gooch, A.2d v. 486 Inc. Town of jurisdiction proper is in this our case because omitted). (Me.1984) (citations 102, 105-06 controlling precedents there no clear are will, alternative, our answer in one be deter- stipulated facts of this do equitable estoppel. minative of the case. Lovell v. One See meet of not the elements (Me.1992). First, misrepre Bancorp, 614 A.2d 56 We answer no made affirmative MMC negative. sentation, applica the support the the required as to equitable estoppel.

tion of Anderson v. Servs., I. Dept. Commissioner Human 489 of (Me.1985). 1094, 1099 Although a claim A.2d In v. Hanusek Southern Maine supported equitable estoppel can be an Ctr., (Me.1990), 584 A.2d 634 we equivalent negligence act that is the recognized estoppel may to used Co., fraud, Packing Maplewood v. 375 Pino affirmative defense of (Me.1977), misdiagnosis by A.2d 539 if are limitations the elements equivalent is of fraud MMC not the sufficient present. explaining estoppel, In Id. at 636. support equitable estop- to assertion previously we stated: pel. misdiagnosis to Dasha relied on the gist estoppel barring of an the defen- treatments, rely he seek radiation but did invoking dant from the defense of the stat- representation to to a of MMC decide ute of limitations is that the defendant has seeking Nothing in forego legal redress. in a conducted himself manner which actu- demonstrates that Dasha “in fact in record ally induces the not to take legal on his claim tended to seek redress legal The plaintiff action on a claim. thus Townsend, during prescriptive period.” to relies his detriment on the conduct of 1134; Dugan, see also 588 A.2d by failing legal to defendant seek (defendant estopped from at assert 747 dress while the courthouse doors showing no ing of limitations when Only a open upon remain him. demon- actually induced conduct in- stration that the had fact suit). delay bringing legal tended redress on his during prescriptive period fail- can his II. specifically ure to file suit be attributed to conduct. defendant’s toll Dasha also asks that we (Me. period Appel, v. 446 A.2d 1134 statute of limitations Townsend 1982) (citations omitted); incapacity, starting date he see also Vacuum mental with the Co., Bridge incompetent.2 Although reeog- Sys., v. A.2d became we Inc. Constr. 632 fitting equitable estoppel of limitations as a defense is distinct from statute 2. The doctrine way equitable tolling. a as because the defendant has acted in such In cases doctrine forego filing a equitable estoppel, cause the claimant to the statute of limitations Sys., Bridge expired v. run- cause of action. See Vacuum Inc. and the defendant asserts the (Me.1993); ning a 632 A.2d 444 Hanu as defense. Constr. of the statute Ctr., defendant, estopped v. Me. Medical 584 A.2d is from bene- sek Southern Beal, nize this has been done under Town similar Inhabitants Beals States, (1953) (“ circumstances, see Zeidler v. United ‘Whenever (10th Cir.1979); statute, legal 601 F.2d 527 Dundon right wholly is created (E.D.N.Y. F.Supp. remedy United given its violation is also we do so in this be equity the same has no court reliefs, cause contrast the circumstances exist authority to with interfere its even cases, ing Legislature in the difficult, cited our though statutory remedy un- clearly spoken restricting ”) the instances in certain, incomplete.’ Perry (quoting which medical action can be Dodge, 144 Me. A.2d beyond general three-year 1949)). Sled limitations. conclusion, we answer the certified *4 Legislature has explicitly outlined the negative. in the contours of in the statute limitations medi- actions, malpractice cal and has left room WATHEN, C.J., ROBERTS, exception for us to carve out an to these GLASSMAN, RUDMAN, JJ., Tso, Choroszy 803, rules. See 647 A.2d concurring. (Me.1994) (“Once Legislature 808 the has Justice, LIPEZ, dissenting. arguments [regarding evaluated those the discovery statute limitations and the rule] Historically, equitable the have courts used choice, policy made a we cannot principles to the ameliorate harshness the adopt opposite legislative the view unless the cannot law. We ameliorate such harshness unconstitutional.”). action is Unlike the case in of a such direct contravention as James, (Me. 987, Myrick 444 A.2d 997 § (setting 14 M.R.S.A. 853 forth the limited Legis this is not a situation the where justify tolling circumstances that lature has left it to this Court define to when limitations). See the Town Inhabitants of malpractice a medical action accrues. See Beal, Beals v. 149 98 555 A.2d Caine, Bolton v. 541 also A.2d 926 & n. 3 (1953). can, however, equitable We (Me.1988); Ward, A.2d Black v. 549 372 principles using to a defendant from (Me.1988) (Legislatively discovery enacted conduct, thereof, equivalent fraudulent or the applies only malpractice rule to medical statutory invoke a defense a manner so legisla- on or filed after effective date of new unjust Legislature that the could not tion). Legislature has decided when a intended the result. Given these consider- may tolled, cause of action be 14 M.R.S.A. ations, agree portion I with that the §§ (Supp.1994), specified and has concluding improp- Court’s decision that it is very the limited the circumstances when dis- equitably er to toll the statute of limitations used, covery may rule 24 M.R.S.A. be 2902 in I agree this case. do not with Court’s the (1990). See L.D. 2400 Statement of Fact improper conclusion this is an case for (revised (112th draft) (“The Legis.1985) new application equitable estop- of the doctrine of existing amends draft statutes limita- pel. Accordingly, I respectfully dissent. applicable malpractice tions to medical ac- Court, opinion As stated we Eliminating ... tions the so-called ‘dis- equitable have outlined the elements of es- covery ‘foreign rule’ in except all cases ob- toppel follows: as cases.”). ject’ surgical statutory While the harsh, gist estoppel barring an the defen- scheme be deemed unfair or we Legislature invoking it when dant defense of the stat- circumvent from issue, explicitly and has “di- ute of decided limitations is that defendant responsibility this Court of its himself in manner actu- vested] conducted which ally define when a ... action ac- induces the not to take 991; Myrick, legal see also action on a claim. The thus crues.” (Me. 1990). contrast, applica- involving in cases statute of limitations is tolled when strict tolling, inequi- equitable doctrine the defendant tion limitations would be not have the statute of limitations as a valid table. v. United 44 F.3d does Lambert Cir.1995). Rather, (5th yet defense because it has run. prevent- conduct of MMC negligent detriment on conduct relies to his defendant, legal seeking legal redress. MMC by failing to seek ed Dasha severity of Dasha’s brain misdiagnosed of the courthouse dress while the doors open Only upon subjected him to massive radia- remain to him. demon- tumor treatments, in- in- causing had fact him to become stration tion legal redress on of ac- tended seek to file a cause competent and unable prescriptive period undergo fail- agreement can his the ra- tion. Dasha’s specifically ure to file suit be attributed reli- detrimental treatments was the diation Objec- the defendant’s conduct. estoppel. required equitable ance evaluated, effectively MMC’s conduct tively Appel, Townsend v. A.2d fifing a cause of prevented Dasha from omitted). 1982) (citations said We have also devastating action, in a manner far more equitable estoppel claim of can that a made of MMC than fraud. The conduct negligence on an act of based even to un- incompetent and unable Maplewood fraud. Pino equivalent of action.1 had a cause derstand that he (Me.1977). Packing Indeed, Pino that: explained in we during the redress The intent [ejstoppel flows from the actual conse- require- period, another produced by A quences the conduct of noted ment *5 subjec- A upon regardless B of whether only Court, is from this case because absent consequences, tively intended incompetent MMC left Dasha the conduct of because, objectively which resulted evalu- any It unable to form intention. and hence ated, justifiably upon con- B has relied A’s conduct of link is that direct between duct. resulting of incompetence Da- and the MMC Id. at 538-39. unique and that makes this case sha that application equity to avoid an requires on of stipulated facts describe conduct unjust defen- simply, Put most part equivalent of result.2 of MMC that is the advantage take dant should not be able to fraud. The fraudulent conduct of defen- Brooklyn situation.3 See Glus dant, unique plaintiff, this upon by prevents relied Terminal, 79 S.Ct. this E. Dist. seeking legal U.S. plaintiff from redress. In cases, compe- present he Typically equitable estoppel not until lost his 1. defen- action were a cause subsequently and was unable to file liability dant tence therefore incurs commits bring inducing action. an act not to a cause See, e.g., Maine of action. Hanusek Southern Ctr., 1990) (after re- power 584 A.2d 634 executed a of attor- 3.The fact that Dasha Dasha, treatment, sister, Margaret ceiving allegedly negligent ney in favor of his representation bringing application preclude lied on of nurse in not does not March action); estoppel. equitable Maplewood Packing equitable In Pino v. the doctrine tolling (Me.1977) (after cases, power attorney sustaining injury, of a 375 A.2d 534 existence by person compensa- before the onset of inca- employee conferred did not file worker’s application pacity preclude of the toll- petition told him does tion because nurse ing by informing employer); statute: Glus v. was covered Terminal, Brooklyn 359 U.S. E. Dist. tolling is “to relieve aim of the (after (1959) sustaining 3 L.Ed.2d 770 S.Ct. person any time restrictions from the strict damages, he could misled believe actually ability capacity, due lacks who any years). This bring time within seven action affliction, rights pursue lawful to mental equitable paradigm for case not unlike the is (citations omitted) The does not ...” negligence was the estoppel. initial act of tolling absence of others who on the condition misdiagnosis were and the radiation treatments may legally the insane authorized act for subsequent negligence, equivalent to act of person. fraud, bring a suit. which caused Dasha Camden, N.J.Super. County Kisselbach v. (1994). That same principle mal- To cause of action in a medical to this 2. have a should case, attorney power on Mar conferred practice the claimant must have sustained case. The garet authority to when she injury com- sue damages. Dasha the Dasha’s loss misdiagnosis approximately two very thing he petence, he needed to realize learned occurred, years it not the paradox after tragic and nine months It is the had a cause of action. obligation do Id. so. of Dasha's cause this case that all the elements 760, 762, 8 (deeply L.Ed.2d 770 rooted

maxim states that “no man advan- take PAPER INTERNATIONAL COMPANY tage wrong”). of his own legitimate is a There concern hard JAY, TOWN OF et al. case makes bad That law. concern is mis- Judicial Court Maine. placed here. All statutes limitations are arbitrary and cause wrongs. unredressed Argued June We accept that arbitrariness and those costs Decided Oct. importance goals of other Implicit any advanced statutes. limitations, however, is the notion subject

that an individual to the statute has

the capacity self-protection. for Even in misdiagnosis, misdiag-

cases of medical patient

nosed capacity at least has the opinion upon symp- a second or to act capaci-

toms that remain troublesome. That

ty self-protection arguably for moderates the begins

harshness the rule that the limita- period

tions misdiagnosis. with the act of capacity any this Dasha’s de-

gree self-protection within the statute of period destroyed by very was

party whom he seeks redress. The

application of the statute in this case has no

redeeming rationality. Kyle See Green Verona, Inc.,

Acres at 44 N.J. (1965) (if plaintiffs insanity devel-

oped on or after date accrual and resulted acts, justice requires

from defendant’s then permitted

that defendant “not be cloak garb

himself with the of the statute of limita-

tions”). The precedent lack of a direct application equity.

should not

Indeed, distinguishing “[i]t feature of

equity jurisdiction that it will settled

rules to unusual conditions and its de- mold equity

crees so as to do between parties.” Unity Co. v. Design Tel Serv. Co. New

York, A.2d 804

(citation omitted).

I would answer the certified

the affirmative.