Gail G. MUSK v. Nancy H. NELSON.
No. Law-94-118
Supreme Judicial Court of Maine.
Sept. 29, 1994
647 A.2d 1198
III.
The final step in the Energy Reserves analysis is to determine if the adjustment of contractual rights and responsibilities caused by section 2850(2) is based on reasonable conditions and is “of a character appropriate” to the purpose of broadening the availability of health care. 459 U.S. at 412, 103 S.Ct. at 705 (citation omitted). In reviewing economic and social legislation as provided by section 2850(2), we defer to the Legislature‘s judgment regarding the necessity for and reasonableness of the statutе. United States Trust Co., 431 U.S. at 22-23, 97 S.Ct. at 1517-18.
Even in the absence of legislative findings, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption thаt it rests upon some rational basis within the knowledge and experience of the legislators. Maine Milk Comm‘n v. Cumberland Farms Northern, Inc., 160 Me. 366, 380, 205 A.2d 146, 153 (1964), appeal dismissed, 380 U.S. 521, 85 S.Ct. 1333, 14 L.Ed.2d 266 (1965).
The Superintendent contends that section 2850(2) is based on reasonable conditions because it allows insurers to exclude preexisting conditions for limited periods and because it does not prоhibit them from charging higher premiums to recover any losses.
The entry is:
Judgment vacated.
Remanded for the entry of a judgment in favor of the Superintendent of Insurance.
All concurring.
Joy Cantrell (orally), Berman & Simmons, P.A., Lewiston, for defendant.
Before WATHEN, C.J., GLASSMAN, CLIFFORD, RUDMAN and DANA, JJ., and COLLINS, A.R.J.*
RUDMAN, Justice.
Gail G. Musk appeals from the judgment entered in the Superior Court (Lincoln County, Perkins, A.R.J.) granting Nancy Nelson‘s
On February 15, 1989, Nelson performed a tubal ligation on Musk. Nearly three years later, Musk learned that she was pregnant. Musk formally notified Nelson of her claim for the failed sterilization on March 5, 1992—more than three years after the procedure was performed. A few months later, Musk gave birth to a healthy son.
1.
“Action for professional negligence” means any action for damages for injury or death against аny health care provider, its agents or employees, or health care practitioner, his agents or employees, whether based upon tort or breach of contract or otherwise, arising out of the provision or failure to provide health care services.
24 M.R.S.A. § 2902 (1990) : Statute of limitations for health care prоviders and health care practitionersActions for professional negligence shall be commenced within 3 years after the cause of action accrues. For the purposes of this section, a cause of action accrues on the date of the act or omission giving rise to the injury. Notwithstanding the provisions оf Title 14, section 853, relating to minority, actions for professional negligence by a minor shall be commenced within 6 years after the cause of action accrues or within 3 years after the minor reaches the age of majority, whichever first occurs. This section does not apply where the cause of action is basеd upon the leaving of a foreign object in the body, in which case the cause of action shall accrue when the plaintiff discovers or reasonably should have discovered the harm. For the purposes of this section, the term “foreign object” does not include a chemical compound, prosthetic aid or оbject intentionally implanted or permitted to remain in the patient‘s body as part of the health care or professional services.
[second paragraph discussing alternative statute of limitations for minors omitted]
In part
1. Intent. It is the intent of the Legislature that the birth of a normal, healthy child does not constitute a legally recоgnizable injury and that it is contrary to public policy to award damages for the birth and rearing of a healthy child.
2. Birth of healthy child; claim for damages prohibited. No person may maintain a claim for relief or receive an award for damages based on the claim that the birth and rearing of a healthy child resulted in damages to him. A рerson may maintain a claim for relief based on a failed sterilization procedure resulting in the birth of a healthy child and receive an award of damages for the hospital and medical expenses incurred for the sterilization procedures and pregnancy, the pain and suffering connected with the pregnancy and the loss of earnings by the mother during pregnancy.
I. Professional Negligence
Musk first argues that an action for wrongful sterilization is not an action for professional negligence, and therefore is not barred by the statute of limitations applicable to such actions. Musk relies on the interplay of several sections of the Maine Health Security Act.
This argument is not persuasive. The Wrongful Birth/Life Statute does not create a cause of action. On the contrary, it repudiates certain types of actions, and limits available damages for other, related actions.
A person may maintain a claim for relief based on a failed sterilization procedure resulting in the birth of a healthy child and receive аn award of damages for the hospital and medical expenses incurred for the sterilization procedures and pregnancy, the pain and suffering connected with the pregnancy and the loss of earnings of the mother during pregnancy.
Even if it were a basis for strict liability, it would still fall within thе definition of an action for professional negligence under the Act.
The Act‘s definition for professional negligence encompasses “any action for damages . . . against a health care provider, its agents or employees, . . . whether based on tort or breach of contract or otherwise . . . .”
II. The Discovery Rule
Section 2902, the Act‘s statute of limitations, provides that an action for professional negligence against health care providers accrues “on the date of the act or omission giving rise to the injury,” except in cases based on the leaving of a foreign object in the patient‘s body when the cause of action accrues when the patient discovers or reasonably should discover the harm.
The question we must answer is whether the Legislature intended to preclude the availability of the discovery rule in cases where no foreign object is left inside the patient‘s body. See McAfee v. Cole, 637 A.2d 463 (Me.1994). We lоok first at the plain language of the statute to determine whether the legislative intent is plain and unambiguous. In re James John L., 601 A.2d 630, 631 (Me.1992). The Maine Health Security Act Statute of Limitations states:
Actions for professional negligence shall be commenced within 3 years after the cause of action accrues. For the purposes of this section, a сause of action accrues on the date of the act or omission giving rise to the injury. . . . This section does not apply where the cause of action is based upon the leaving of a foreign object in the body, in which case the cause of action shall accrue when the plaintiff discovers or reasonably should disсover the harm. For purposes of this section, the term “foreign object” does not include a chemical compound, prosthetic aid or object intentionally implanted or permitted to remain in the patient‘s body as part of the health care or professional services.
Musk argues that the plain language bеtrays no clear intent to preclude any use of the discovery rule in non-foreign-object cases; the statute provides an exception to the non-availability rule but does not explicitly rule out other exceptions. However, a well-settled rule of statutory interpretation states that express mention of one сoncept implies the exclusion of others not listed.
If there be doubt, the statutory history settles the matter. State v. Edward, 531 A.2d 672, 673 (Me.1987) (if a statute is ambiguous, we look to the history). The intent to bar the use of the discovery rule in non-forеign-object cases is clear in both the statement of fact accompanying the original legislative document and the statement of fact accompanying the revised version: “The new draft amends the existing statutes of limitations applicable to medical malpractice actions by . . . [e]liminating the so-called ‘discovery rule’ in all cases except ‘foreign object’ surgical cases.” L.D. 2400 Statement of Fact (112th Legis.1985) (revised draft); see also L.D. 2065 Statement of Fact (112th Legis.1985) (original bill expressing same intent).
Since the purpose of the Act was to reduce malpractice insurance premiums, this limitation of the discovery rule is logical. See L.D. 2065 Stаtement of Fact (112th Legis.1985). See also Eastern of Maine, Inc. v. Vintners Group Ltd., 455 A.2d 936, 941 (Me.1983) (construe statute to achieve legislative purpose). Also, the Maine Health Security Act was passed in 1985, two years after our decision in Box v. Walker, 453 A.2d 1181 (Me.1983). In Box, we expressly left open the question whether the recently created judicial discovery rule would apрly to actions based on professional negligence involving no foreign object. Id. at 1182-83 (referring to Myrick v. James, 444 A.2d 987, 996 (Me.1982)). The Maine Health Security Act answers the question; the discovery rule is limited to foreign object cases alone. The Legislature is presumed to be aware of the state of the law and decisions of this Court when it passes an act. Realco Servs., Inc. v. Halperin, 355 A.2d 743, 745-46 (Me.1976). In sum, even if we were to agree with Musk that distinguishing foreign object cases from failed sterilization is bad public policy, we must defer to the Legislature‘s intent. National Hearing Aid Centers, Inc. v. Smith, 376 A.2d 456, 461 (Me.1977) (“No matter how much the court might have preferred some other procedure, if the measure is reasonably appropriate to accomplish the intended purpose, we must give it effect.“).
III. The Constitution
Musk finally makes various constitutional contentions. She argues that if the Court interprets the statute of limitations to bar her claim, she will be unconstitutionally denied a remedy for her injury,
Musk also argues that the Act violates her right to due process and equal protection,
Musk‘s other contentions are without merit.
The entry is:
Judgment affirmed.
WATHEN, C.J., and CLIFFORD and COLLINS, JJ., concurring.
I respectfully dissent.
The Court misperceives the legislative intent. In 1990 the Legislature defined an action “for professional negligence” as “any action for damages for injury or death against any health care provider,”
Interpreting the Legislature‘s intent as I do avoids a constitutional problem with the Court‘s opinion. On February 5, 1992, Musk learned she was pregnant. Requiring her to cоmmence an action for professional negligence before February 15, 1992, the third anniversary of a failed sterilization procedure, would seem to define an unreasonably short period “within which a claimant must seek redress in the courts.”
In Choroszy v. Tso, 647 A.2d 803, 807 (Me. 1994), we held that it was not unconstitutional to require a person who received faulty medical advice concerning a medical condition with adverse and continuing symptoms to bring his action within three years of that advice. Such a holding does not preclude a contrary holding when a plaintiff must file her action within ten days of her first symptoms.
I would vacate the decision of the Superior Court.