continuing negligent treatment


Time to get back to the blogosphere.  The SJC hunkered down last month and issued a slew of decisions, including another intertidal opus that raises lots of interesting takings issues, but before we get to those, I noted last time the decision issued on August 18, Baker v. Farrand, 2011 ME 91 [] adopting the continuing treatment doctrine and that's what we'll talk about here.

There's nothing particularly radical about a jurisdiction adopting a continuing treatment doctrine and there are logical reasons for doing so.  Tolling a limitations period until treatment ends is a reasonable position.  When a medical practitioner should have diagnosed something in year X, and keeps failing to do so for the next four years, it's a rational viewpoint to say that the patient isn't barred from suing by the three-year limitations period.  

The question here, however, isn't whether such a tolling rule makes sense, but  whether the Legislature's enactment of the Maine Health Security Act, 24 M.R.S. s. 2902 [] and bar of judicial tolling under the Act precludes the SJC from adopting a version of the continuing treatment doctrine.  In a dissent in Dickey v. Vermette, 2008 ME 179, [], Justice Silver opined that while the language of Section 2902 prevented adoption of two of three variants of the doctrine (tolling the limitations clock until the end of the doctor-patient relationship or the end of treatment for a single condition), the Legislature did not foreclose the Court from adopting a "continuing negligent treatment" variation which starts the clock at the last negligent act — and so not a "tolling" rule but rather an "accrual" rule.  In Baker, the SJC unanimously adopts Justice Silver's position, applying the doctrine even when the only harm from the negligence within the limitation period is "indeterminent or negligible."

The operative language in Section 2902 is "Actions for professional negligence shall be commenced within 3 years after the cause of action accrues.  For the purpose of this section, a cause of action accrues on the date of the act or omission giving rise to the injury …."  While the Legislature made clear that the Court could not toll the limitation period, the SJC concluded that nothing prevented them ruling that "act or omission" in the statute doesn't have to mean when the professional first committed an act of negligence.  While the statute refers to "act or omission" in the singular, the Court said that it did not have to adopt a "literal" construction of the statutory language because 1 M.R.S. s. 71(9) provides that "words of the singular number may include the plural; and words of the plural number may include the singular."  Noting that "[t]here is a circular quality to the logic of using a rule of statutory construction to interpret the plain meaning of a statute when that rule only applies if it does not conflict with the plain meaning of the statute," the Court said it could apply this "singular means plural" rule of construction because it found nothing else in Section 2902 indicating that "act or omission" should only mean the singular, and because elsewhere in the Act, professional negligence is defined using the plural term "acts or omissions."  24 M.R.S. s. 2502(7) []. 

In sum, the Court held that "a single cause of action may arise from multiple acts or omissions even if each independent act or omission, viewed in isolation from other acts or omissions, constitutes an independent deviation from the applicable standard of care."  As long as each act can be deemed to contribute to the injury, the clock continues:  "the cause of action 'accrues' for the purposes of the three-year limitations period on the date of the last act or omission by the health care provider or practititoner that contributed to the proximate causation of the patient's harm."  The clock doesn't start accruing until the last act by a single health care provider or practitioner that deviates from the applicable standard of care and "to at least some demonstrable degree," proximately causes the harm complained of.