Phyllis G. GIVERTZ, Adm‘x, Estate of Patricia Carlson v. MAINE MEDICAL CENTER, et als.
Supreme Judicial Court of Maine.
Decided April 26, 1983.
548 | 459 A.2d 548
Argued Jan. 7, 1983.
Weeks, Hutchins, Frye, Welch & O‘Donnell, Roger A. Welch (orally), Waterville, for Mehrhof.
Hewes, Culley, Feehan & Beals, Philip M. Coffin, III (orally), Peter W. Culley, Martica Sawin, Portland, for Merrill.
Before McKUSICK, C.J., NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.
DUFRESNE, Active Retired Justice.
The plaintiff, Phyllis G. Givertz, was appointed administratrix of the Estate of Patricia Carlson on June 15, 1979. The plaintiff‘s intestate, Mrs. Carlson, on July 6, 1978, had committed suicide shortly after her admission on that same day to the Augusta Mental Health Institute on a voluntary readmission basis. Immediately prior thereto, Mrs. Carlson had been admitted to the Maine Medical Center emergency room in Portland as a result of an earlier suicide attempt on her part. On May 28, 1980, the plaintiff, in her capacity of administratrix of the estate, pursuant to
1
Dr. Merrill‘s motion to dismiss
The plaintiff‘s complaint, filed with the court on May 28, 1980, was served on Dr. Merrill on June 26, 1980;2 thus, the reference action, so far as Dr. Merrill is concerned, was commenced within the two-year statute of limitations, whether the suit be viewed as governed by
The Legislature, in
[n]o action for death or injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced until at least 90 days after written notice of claim setting forth under oath the nature and circumstances of the injuries and damages alleged is served personally or by registered or certified mail upon the person or persons accused of wrongdoing. Any applicable statute of limitations shall be tolled for a period of 90 days from service of notice.
In interpreting the reference legislation, we held, in Paradis v. Webber Hospital, 409 A.2d 672 (Me.1979), that a notice of claim not under oath was insufficient to toll the two-year statute of limitations and a malpractice suit commenced more than two years after the cause of action for medical malpractice accrued was subject to dismissal upon motion. In the instant case, the malpractice action was commenced within the two-year period of limitations, but no attempt was made during the two-year period to serve any notice of malpractice claim upon Dr. Merrill, let alone a pre-action notice as required by the statute.
In Dougherty v. Oliviero, 427 A.2d 487 (Me.1981), we held that the statutory notice of claim had no relationship to the court‘s jurisdiction, but was an affirmative defense which is waived if not raised by the defendant pursuant to Rule 8(c), M.R.Civ.P. Here, the defendant Merrill did raise the plaintiff‘s noncompliance with the notice of claim requirement in his motion to dismiss. In Dougherty, we held that, “[a]s long as an action is commenced before the expiration of the statute of limitations,” and a sufficient notice of claim was served within the period of limitations, although shortly after the commencement of the action in violation of
Again, in Michaud v. Northern Maine Medical Center, 436 A.2d 398 (Me.1981), we pointed out that in Dougherty
[b]oth filing of the complaint and service of the notice occurred within the two-year limitations period of
14 M.R.S.A. § 753 . Id. at 401.
In Michaud, the defective notice of malpractice claim (defective for failure to be under oath) was served on the defendant hospital some eleven months before commencement of the action. Though defective in one aspect, the notice of claim in Michaud, given in an apparent attempt to comply with the requirements of
In the present case, the plaintiff‘s present attorney in his brief does not dispute that formal notice of the malpractice claim against Dr. Merrill pursuant to
Section 8107 says (1) that a claimant or his personal representative shall file the written notice, and (2) that if the claimant is incapacitated and thereby prevented from presenting and filing the claim within the 180 days after the cause of action accrues, any relative, attorney or agent representing the claimant may present and file the claim on behalf of the claimant; this statutory language does not permit characterizing the stated premature notice to Augusta Mental Health Institute as substantial compliance under the statute, even if the alleged claim were viewed as being presented to and filed with Dr. Merrill through the Institute as his employer. It is
The Maine Tort Claims Act and the Maine Health Security Act were enacted in 1977 by the same One Hundred and Eighth Legislature. Both acts required the giving of notice of claim respecting the nature, extent and circumstances of the injuries involved. Both pieces of legislation were adopted in an effort to promote the settlement of disputes and ameliorate the then current proliferation of litigation in their respective fields of operation. In the case of the Tort Act, section 8107 of title 14 M.R.S.A. provides that the claimant or his personal representative shall file the notice within 180 days after the cause of action against the governmental entity or its employee accrues, while, in the case of the Health Security Act, section 2903 of title 24 M.R.S.A. mandates that no action for death or for injuries to the person arising from any medical malpractice shall be commenced until at least 90 days after the notice of claim is served upon the person or persons accused of wrongdoing. The Tort Act specifically provides for the giving of the notice of claim beyond the 180-day period upon the showing of good cause, provided it is at a time “within the limits of section 8110,” i.e. within the two-year statute of limitations.6 Although it does not expressly provide that the mandated presuit notice of claim required by section 2903 be served within the limits of the statute of limitations affecting malpractice actions, i.e. within two years after the cause of action accrues, whether under
This result is not inconsistent with our holdings in Dougherty v. Oliviero, supra, or Michaud v. Northern Maine Medical Center, supra; in both cases, the notice of claim was in fact given within the two-year statutory period of limitations. The overall intent of the instant comprehensive legislation, whether in the field of medical malpractice or governmental tort responsibility, is that eventual litigation be commenced not later than two years after the cause of action accrues. This statutory policy is concededly mandatory, notwithstanding that parties in interest may waive its requirements. It is obvious that, if the notice-of-claim provisions of the statute could be completely ignored during the two year period of limitations in which one must bring suit, and that with practical immunity except delay of hearing, the very essence of the object sought to be accomplished by the Legislature, i.e. the prospective lessening of litigation and the settlement of meritorious claims would, indeed, be frustrated. The notice-of-claim statute would practically be a nullity. The use of the imperative “shall” by the lawmakers would indicate that, for those stated considerations, the notice-of-claim statute must be construed to be mandatory to that extent. So far as the other statutory requirements respecting the details of the notice of claim, its verification and service, which are not of the very essence of giving notice of intended legal action and which, if not in strict compliance with the statute, would not prejudice the rights of interested parties, they are to be regarded as directory, notwithstanding the fact that the statutes are couched solely in terms of the mandatory “shall.” See In re Opinion of the Justices, 124 Me. 453, 126 A. 354 (1924); Collins v. State, 161 Me. 445, 213 A.2d 835 (1965). A statute may be mandatory in some respects and directory in others. See Carrier v. Comstock, 108 Ark. 515, 159 S.W. 1097 (1913); Hocking Power Co. v. Harrison, 20 Ohio App. 135, 153 N.E. 155 (1925); Deibert v. Rhodes, 291 Pa. 550, 140 A. 515 (1928).
2
Dr. Mehrhof‘s motion to dismiss
Filed with the court on May 28, 1980, and thus commenced, pursuant to
The defense of noncompliance with the pre-action-notice-of-claim requirement of section 2903 of title 24 must be asserted affirmatively in a timely responsive pleading pursuant to Rule 8(c), M.R.Civ.P. Here, the motion to dismiss did purport to raise that particular issue, but it was filed much later than within the 20 days after the service of the summons and complaint as required by the rules. True, no entry of default had been made in the case for the defendant‘s failure to plead or otherwise defend within the time strictures of the rules. But, the defendant had properly filed with his belated motion to dismiss a contemporaneous motion pursuant to Rule 6(b) for enlargement of time to file his answer or responsive pleading on the ground that his failure to file timely was the result of excusable neglect.8
Without an enlargement of time for filing his belated motion to dismiss properly based on excusable neglect, the defendant Mehrhof would lose his right to assert his potential defense to the plaintiff‘s cause of action, as his affirmative defense of plaintiff‘s noncompliance with the pre-action notice-of-claim requirement of section 2903 would be considered waived where it is not timely raised by the pleadings. See Reed v. Tracy, 435 A.2d 745, 746 (Me.1981).
In his affidavit in support of his motion for enlargement of time for filing answer or other responsive pleading, Dr. Mehrhof alleged under oath among other things, that immediately following the service of the plaintiff‘s summons and complaint upon him he had contacted the Superintendent of the Augusta Mental Health Institute who had informed him that the Attorney General‘s Office was handling the case for all of the defendants; that the first time he knew that the Attorney General‘s Office was not handling this matter in his behalf was on August 18, 1980 through a telephone call from Attorney Roger A. Welch; he further stated in his affidavit:
I have a good defense to this action in that to my knowledge and belief I did not treat Patricia Carlson and did not have any thing to do with her; also, I did not receive a written notice under oath prior to the start of this action.
Though Rule 6(b) providing for enlargement of time should be liberally interpreted in order to work substantial justice in implementing the mandate of Rule 1 to the effect that the rules shall be construed to secure the just, speedy, and inexpensive determination of every action, nevertheless, the concept of “excusable neglect” upon which the rule anchors remedial relief from the time strictures must needs retain a strict standard in its application. See Reynolds v. Hooper, 407 A.2d 312 (Me.1979). A party moving for such relief as enlarge-
True, the defendant Mehrhof has not cross-appealed for failure of the justice below to find him in an excusable-neglect situation in support of his motion for extension of time permitting him to file his belated motion to dismiss. An appellee need not cross-appeal to raise an issue that merely could provide an alternative ground to uphold his judgment. Hartford Fire Insurance Co. v. Merrimack Mutual Fire Insurance Co., 457 A.2d 410 (Me.1983). The issue of waiver or excusable neglect, although raised below, was left unresolved.
The Superior Court‘s judgment granting Dr. Mehrhof‘s motion to dismiss the plaintiff‘s complaint for failure of the plaintiff to serve the pre-action notice of claim required by section 2903 of title 24 must be vacated as premature and the case remanded for further proceedings in relation to the defendant‘s undisposed motion for enlargement of time in support of his motion to dismiss.
The entry will be:
In the case of the defendant Merrill, the plaintiff‘s appeal is denied and the judgment below is affirmed.
In the case of the defendant Mehrhof, the judgment of dismissal of the plaintiff‘s complaint is vacated and the case is remanded for further proceedings consistent with the opinion herein.
McKUSICK, C.J., and NICHOLS, J. concurring.
VIOLETTE and WATHEN, JJ., concurring.
We concur in the result reached by the Court but we are unable to agree with the rationale which has been adopted. We adhere to the position previously stated in dissent in Michaud v. Northern Maine Medical Center, 436 A.2d 398, 403 (Me.1981). In our view,
ROBERTS, J., with whom CARTER, J., joins, dissenting.
I respectfully dissent. I cannot agree with the Court‘s interpretation of our prior decisions. Nor can I agree with the Court‘s view that the Legislature intended to merge the notice requirement of the Maine Health Security Act,
The Court suggests that because of the reference to tolling the limitations statute, section 2903 mandates the giving of notice within the two-year period of limitations. Id. We stated in Michaud v. Northern Maine Medical Center, 436 A.2d 398, 401-02 (Me.1981), however, that so long as the action was commenced under M.R.Civ.P. 3 within two years, the question merely becomes “what is the appropriate sanction for ... failing to meet the specific notice requirements of section 2903.”
I am also unpersuaded by the concurring opinion which would insist upon dismissal of any action filed in violation of section 2903, without considering whether such a dismissal furthers the purpose of the statute. The purpose of the section 2903 notice requirement is unlike that of the section 2902 period of limitations. See Dougherty v. Oliviero, 427 A.2d 487, 489-90 (Me.1981). Contra Michaud, 436 A.2d at 403 (Wathen, J., dissenting). Moreover, the statute itself
In Dougherty, we held that “failure to comply with section 2903 is an affirmative defense....” 427 A.2d at 489. Consequently, we said that the notice requirement “has no relationship to the court‘s jurisdiction or to the merits of the plaintiffs’ cause of action....” Id. Finally, we instructed that the Superior Court should determine the proper sanction for noncompliance with section 2903 when proven by a defendant. Id. Following our reasoning in Dougherty, in order to justify the dismissal of a complaint (especially after expiration of the statute of limitations), I would require that the defense establish prejudice which no other sanction could cure.