Whittier v. Central Maine Medical Center

STATE OF MAINE BUSINESS & CONSUMER COURT
CUMBERLAND, ss. CNILACTION
DOCKET NO. BCD-CIV-2022-00027

MICHAEL WHITTIER AND )
NANCY WHITTIER, )
)
Plaintiffs, )
)
) ORDER DENYING DEFENDANT
v. ) CENTRAL MAINE MEDICAL
) CENTER'S MOTION FOR
) SUMMARY JUDGMENT
CENTRAL MAINE MEDICAL )
CENTER, )
)
Defendant. )

INTRODUCTION

The motion before the comt tests the scope of the continuing negligent treatment themy

of recovery. On March 31, 2022, Plaintiffs Michael Whittier and Nancy Whittier ("Plaintiffs")

filed a fom--count complaint against Central Maine Medical Center ("CMMC"). Plaintiffs'

Complaint alleges causes of action against CMMC for medical malpractice (Count I), fraudulent

concealment (Count II), continuing negligent treatment (Count III) and loss of consortium'

(Count IV). (Comp!. ,r,r 30-46.) Before the court is CMMC's Motion for Summary Judgment

under Maine Rule of Civil Procedure 56(b), wherein it seeks summary judgment on all of

Plaintiffs' claims. The com-t heard argmnent on CMMC's motion on January 4, 2023. For the

reasons discussed below, the court DENIES in part CMMC's motion as to Counts I, III and N,

but GRANTS a summary judgment for CMMC on Plaintiffs' Count IL'

1
Because Mrs. Whittier's claim for loss of consortium also requires proof of negligence and causation, the parties
did not address Count IV in their briefs. (See Def. 's Mot. Surnm. J. 1 n.l .) However, for the same reasons the court
denies summary judgment on Plaintiffs' medical malpractice and continuing negligent treatment claims, it denies
summary judgment for CMMC on Plaintiffs' loss of consortium claim.
2
During oral argument, Plaintiffs acknowledged that they will not pursue their fraudulent concealment claim any
further and conceded a summary judgment should issue for CMMC on Plaintiffs' Count II.
STANDARD OF REVIEW

Summary judgment is appropriate when the patties' statements of material facts and the

portions of the record referenced therein "disclose no genuine issues of material fact and reveal

that one party is entitled to judgment as a matter of law." Currie v. Indus. Sec., Inc., 2007 ME

12, ii II, 915 A.2d 400 (citing M.R. Civ. P. 56(c)). "A material fact is one that can affect the

outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact

finder to choose between competing versions of the fact." Lougee Conservancy v. CitiMortgage,

Inc., 2012 ME 103, ,i 11, 48 A.3d 774 (quoting Stewart-Dore v. Webber Hosp. Ass'n, 2011 ME

26, ,i 8, 13 A.3d 773). The Comt must view the record facts in the light most favorable to the

non-moving party and must draw all reasonable inferences in favor of the same. Watt v. UniFirst

Corp., 2009 ME 47, ,i 21, 969 A.2d 897 (citations omitted); Levis v. Konitzky, 2016 ME 167, ,i

20, 151 A.3d 20.

When the defendant is the moving party, it must establish that there is no genuine dispute

of fact and that the undisputed facts would entitle it to judgment as a matter of law. Diviney v.

Univ. of Me. Sys., 2017 ME 56, ,i 14, 158 A.3d 5. To withstand a defendant's motion for

summary judgment, the plaintiff must in turn establish a prima facie case for each element of

their cause of action. Watt, 2009 ME 47, ,i 21, 969 A.2d 897 (citations omitted). If they do not

present sufficient evidence on the essential elements, then the defendant is entitled to a summary

judgment. Id.

FACTS

The court finds the that the Plaintiffs generated the following genuine issues of material

fact.

I. The parties.

2
CMMC is a Maine corporation and integrated health care services provider based in

Lewiston, Maine, that provides hospital, primary care and other services. (Def.'s S.M.F. ,r 1;

Pls.' S.M.F. ,r 2.) At all times relevant to this case, CMMC operated primary care offices in

central Maine, including the Mechanic Falls Family Practice (the "Mechanic Falls Office") and,

in Auburn, the Minot Avenue Family Medicine (the "Minot Avenue Office") practice. (Def.'s

S.M.F. ,r,r 3-4.) CMMC's family practice offices employed CMMC employees, including

physicians and other practitioners, and utilized CMMC's electronic medical recordkeeping

software systems. (Def.'s S.M.F. ,r 5.) CMMC's primary services employees and practitioners

were hired and trained by CMMC, and they were expected to follow the same policies and

procedures even though they may not work at the same hospital or family practice location.

(Pis.' S.M.F. ,r 3.)

Michael Whittier ("Whittier") began a relationship with CMMC as a patient at the

Mechanic Falls Office, where he saw numerous physicians over the years. (Def.'s S.M.F. ,r 6;

Pis.' S.M.F. ,r 5.) Christopher Short, D.O., and James Ostrander, D.O., are physicians who were

employed by CMMC and who treated Whittier between 2016 and 2020. (Def.'s S.M.F. ,r 3.)

II. Events prior to June 4, 2018.

a. Whittier's ongoing care with CMMC.

Dr. Short was employed by CMMC and practiced at the Mechanic Falls Office during

2016. (Def.'s S.M.F. ,r,r 2-3.) On January 25, 2016, Whittier saw Dr. Short for a physical

examination. (Def.'s S.M.F. ,r 7; Pis.' S.M.F. ,r 7.) During the examination, Dr. Short observed

that Whittier's prostate was enlarged, and he ordered a prostate-specific antigen test ("PSA").

(Def.'s S.M.F. ,r 7; Pls.' S.M.F. ,r 7.) Dr. Short ordered other blood tests for Whittier during the

examination, too. (Def. 's S.M.F. ,r 7.)

3
CMMC gave its patients the option of having their labs drawn at external labs, such as St.

Mary's Regional Medical Center ("St. Mary's"). (Pis.' S.M.F. ,r 8.) Whittier elected to have his

PSA done at St. Mary's, and not at CMMC's own lab. (Def.'s S.M.F. ,r 8.) Whittier's PSA

result was 12.70, which is elevated, abnormal, and indicative of a high-risk for prostate cancer.

(Def.'s S.M.F. ,r 9; Pis.' S.M.F. ,r 9.) On or about January 29, 2016, Whittier's PSA and other

blood test results were transmitted by St. Mary's to Dr. Shott by fax sent to the Mechanic Falls

Office. (Def.'s S.M.F. ,r 10; Pis.' S.M.F. iJ IO.)

Dr. Short was away on vacation when the fax with Whittier's PSA result arrived. (Pis.'

S.M.F. ii 12.) Dr. Shott permitted qualified employees, such as the triaging nurse, to in his

absence review and sign-off on "normal" lab test results on his behalf. (Pis.' S.M.F. ,r 14.) A

CMMC employee other than Dr. Shott received the fax transmitting Whittier's test results,

including the PSA, reviewed them, stamped them "Reviewed Dr. Short," and scanned them into

Whittier's electronic medical record.' (Def.'s S.M.F. ,r 42; Pis.' S.M.F. ,r,r 11, 13.) Because the

PSA was so marked it was not left for Dr. Short's review when he returned from vacation the

following month, and he did not review it. (Pis.' S.M.F. ,r 16.) Whittier alleges that he was not

informed of his elevated PSA during 2016, either in person or by letter. (Def.'s S.M.F. ,r 11;

Pis.' S.M.F. ,r 17.)

Plaintiffs' expert, Dr. Andrews, testified that Dr. Short and his staff were required to

notify Whittier of the 2016 PSA result and the risk that it demonstrated for prostate cancer, to

recommend repeat testing, and to refer him to a urologist for further evaluation. (Pis.' S.M.F. ,r

3 The parties dispute who the employee was who reviewed and stamped the PSA result, whether that person was
employed at the Mechanic Falls Office or a CMMC employee temporarily visiting from another office, and whether
they grasped the significance of the elevated PSA result. (Pis.' S.M.F. ,r 13.) They also dispute whether Dr. Short
allowed only his triaging nurse to review and stamp "normar• lab results on his behalf, or whether he pe1mitted
other, non-practitioner staff to do so. (Pis.' S.M.F. ,r 14.) In any event, Whittier's PSA reported an "abnormal"
result. Further, it is undisputed that it would be inconsistent with CMMC's policies and procedures for a physician
to permit any non-practitioner employee to sign off on a patient's lab tests results. (Pis.' S.M.F. ,r 15.)

4
55a.) Their failure to do so constituted a violation of the applicable standard of care. (Pls.'

S.M.F. ,i 55a.) Likewise, Dr. Andrews testified that Dr. Sh01t's failure to personally review and

stamp the 2016 PSA result was a deviation from the standard of care owed to Whittier. (Pls.'

S.M.F. iJ 55b.)

Whittier next saw Dr. Short at the Mechanic Falls Office for a physical examination on

April 7, 2017. (Def.'s S.M.F. ,i 13.) Dr. Short testified that he learned of Whittier's elevated

PSA prior thereto. (Pls.' S.M.F. ii 18.) Dr. Short planned to order a follow-up PSA, as was his

practice in response to abnormal, elevated PSA results, and he recorded a note to that affect

during the April 7 examination. (Def.'s S.M.F. ,i,i 14, 16; Pls.' S.M.F. ,i 18.) Whittier had no lab

work done during 2017.' (Def.'s S.M.F. ,i 17.) According to Dr. Andrews, Dr. Sho1t's failure to

follow-up with Whittier about the second PSA would constitute a deviation from the standard of

care in the context of Whittier's elevated 2016 PSA. (Pis.' S.M.F. ,i 55c.)

Dr. Short left his employment with CMMC at the Mechanic Falls Office during

September 2017. (Def.'s S.M.F. ,i 18.) Around that time, CMMC decided to close the Mechanic

Falls Office. (Def.'s S.M.F. ,i 19; Pls.' S.M.F. ,i 21.) CMMC announced this change to its

Mechanic Falls Office patients, who were encouraged to transfer their care to other CMMC

family practices in the area, like the Minot Avenue Office. (Def.'s S.M.F. ,i,i 19, 21.) Whittier

elected to transfer his medical care to the Minot Avenue Office. (Def. 's S.M.F. ,i 20.)

b. CMMC consolidated its patients' electronic medical records, including
Whittier's, beginning during the Spring of 2018.

For inpatient care, CMMC has long-used an electronic medical recordkeeping system

known as Cemer Power Chart ("Cemer"). (Def.'s S.M.F. ,i,i 34, 47.) From 2010 to 2018,

' The parties dispute whether Dr. Short informed Whittier of the elevated PSA result or the need for Whittier to
undergo a follow-up PSA, whether the follow-up PSA was actually ordered, and whether anybody from CMMC or
the Mechanic Falls Office followed-up with Whittier about the second PSA after the appointtnent. (Def.'s S.M.F. 11
15-17; Pls.' S.M.F. 1117-20.)

5
CMMC's off-campus and outpatient care provider offices like the Mechanic Falls Office and the

Minot Avenue Office used another system, Centricity. (Def.'s S.M.F. ,r 35.) Beginning during

the Spring of 2018 CMMC's off-campus offices, including the Minot Avenue Office,

transitioned to and began using Cerner. (Def.'s S.M.F. ,r 36.) CMMC was involved with this

process.' (Pls.' S.M.F. ,r 24.) It was common for CMMC's practitioners, wherever they worked,

to receive lab results for their patients from both CMMC's internal labs and external labs like St.

Maiy's. (Def.'s S.M.F. ,r 46.)

In Centricity, a patient's labs performed by CMMC automatically uploaded, or flowed,

into their electronic medical record ("EMR"). (Def.'s S.M.F. ,r 44.) The results of labs

perfmmed externally by other providers were sent to the CMMC practitioner who ordered them

and to clinical staff and health information management staff, and then were uploaded into the

patient's Cenh·icity EMR. (Def.'s S.M.F. ,r,r 43, 45.) EMRs displayed lab results in a flowsheet

in spreadsheet-table format, and users could review summary lab results from the EMR main

screen or select a tab to open and view a patient's entire history of lab records. (Def.' s S.M.F. ,r

41.)

Similar to Centricity, in Cerner there is a main screen that displays the patient's "primary

care workflow" along with other patient information (e.g., medical history, identified or

document health problems, allergies). (Def.' s S.M.F. ,r 48.) Also like Centricity, Cerner features

a labs flowsheet that lists results from a patient's past lab tests that is accessible from the EMR

main screen. (Def.'s S.M.F. ,r 49.) Prior to and after integration, the results of patients' lab tests

performed by CMMC automatically flowed into the labs flowsheet in their Cerner EMR. (Def. 's

S.M.F. ,r 50; Pis.' S.M.F. ,r,r 25-26.) After integration, externally-performed labs also

5
Cerner is used in hospitals nationwide, but it is not an "off-the-rack" product and its design may be customized
according to a specific client's needs. (Pis.' S.M.F. ,r 23.) The parties dispute whether CMMC provided input for
the design of the Cemer system it used. (Pis.' S.M.F. ,r 24.)

6
automatically loaded into the labs flowsheet in Cerner. (Pls.' S.M.F. ,r 25.) On the other hand,

to access externally-performed labs taken before integration, users had to locate and select a

"labs and diagnostics" folder in an EMR.' (Def.'s S.M.F. iii! 51, 52; Pis.' S.M.F. ,r 27, 28.)

Apart from Cerner, patients' lab test results were viewable in Centricity through 2020. (Def.'s

S.M.F. ,r 52.)

During the transition from Cenhicity to Cerner, technical training specialists oriented and

trained CMMC providers, including at the Minot Avenue Office. (Def.'s S.M.F. ,r,r 37, 60.)

Trainings covered how to search for the results of patients' past internal and external labs.

(Def.'s S.M.F. ,r 60.) CMMC imported patients' EMR data from Cenhicity to their Cerner

EMR. (Def.'s S.M.F. ,r 57.) Also during this time, CMMC providers had concurrent access to

both EMR systems through 2020.' (Def. 's S.M.F. ,r,r 39, 55, 62.)

Whittier visited the Minot A venue Office on April 16, 2018, to establish care there and

for a physical examination with Dr. Ostrander. (Def. 's S.M.F. ,r 22.) By this time, CMMC's off-

campus practices like the Minot Avenue Office already transitioned their EMRs to Cerner. (Pis.'

S.M.F. ,r 29.) Dr. Ostrander's practice was to review each of his patient's history of lab results in

their EMR at each office visit. (Pis.' S.M.F. ,r 32.) Whittier's EMR listed his enlarged prostate

among his medical issues. (Pis.' S.M.F. ,r 35.) However, during the appointment Dr. Ostrander

did not open the "lab and diagnostics" folder in Whittier's EMR that contained Whittier's history

of lab results, including the 2016 PSA result.' (Pis.' S.M.F. ,r 33.) Dr. Ostrander testified that a

glitch prevented him from acces_sing Whittier's history of lab results, but he was also unaware of

6
The parties dispute whether the results of Whittier's labs performed by external providers prior to CMMC's
implementation ofCerner at its off-campus offices, including the 2016 PSA, were available in Cemer during 2018.
(Def.'s S.M.F. ~~ 51-55.)
7
Patients' EMRs, including lab results, were also available during this time to providers on the "Health Info Net"
web-based platform. (Def.'s S.M.F. ~~ 63-64.) The parties dispute whether CMMC employees were trained to
access EMRs on Health Info Net. (Def. 's S.M.F. ~~ 63-64.)
'The parties dispute whether Whittier's 2016 PSA result was uploaded to his Cemer EMR, and whether Dr.
Ostrander himself was properly trained on how to view Whittier's history of external labs. (Def. 's S.M.F. ~ 54.)

7
how the results of a patient's external labs taken before the transition flowed into Cerner and

how to access them. (Pis.' S.M.F. ,i,i 30, 31.) Because Dr. Ostrander did not see the 2016 PSA,

he did not inform Whittier about it. (Pis.' S.M.F. ,i 33.) Had he seen it, Dr. Ostrander would

have referred Whittier to a urologist. (Pis.' S.M.F. iJil 34, 40.)

Dr. Andrews testified that Dr. Ostrander was required to familiarize himself with

Whittier's recent medical history (including notes from recent office visits, annual physical

examinations and lab test results) when Whittier presented as a new patient at the Minot Avenue

Office. (Pis.' S.M.F. ,i 55d.) According to Dr. Andrews, had Dr. Ostrander reviewed Dr. Shmi's

notes from Whittier's 2017 annual physical examination, as he was required to do, he would

have seen documentation of the abnmmal 2016 PSA and the plan for follow-up testing. (Pis.'

S.M.F. ,i 55d.) Dr. Ostrander was required to understand that the 2016 PSA had not been acted

upon properly and the 2017 plan for follow-up testing had not been completed. (Pis.' S.M.F. ,i

55d.) Dr. Andrews added that Dr. Ostrander's failures to review Whittier's medical history,

ensure completion of follow-up testing and refer Whittier to a urologist would deviate from the

standard of care owed to Whittier. (Pis.' S.M.F. ,i 55d.) This is especially true in the context of

Whittier's enlarged prostate, about which Dr. Ostrander was required to follow up to determine

whether a PSA test was ever performed and what it showed. (Pis.' S.M.F. ,i 55e.) Failure to do

this was also a deviation from the standard of care. (Pis.' S.M.F. ,i 55e.)

III. Events after June 4, 2018.

On September 27, 2018, Whittier saw Dr. Ostrander and complained of "body aches,

fatigue for months" and an ongoing headache. (Pis.' S.M.F. ,i 37.) Dr. Ostrander noted that the

symptoms had "gotten worse over the last six months," and acknowledged Whittier's enlarged

prostate. (Pis.' S.M.F. ,i 37.) Dr. Ostrander provided a broad differential diagnosis because he

8
did not know what was causing Whittier's health issues, and he ordered a suite of lab tests

including for arthritis, thyroid disease, and Lyme disease. (Def.'s S.M.F. ,i 25; Pls.' S.M.F. ,i

37.) However, Dr. Ostrander again did not review Whittier's history of prior external lab results.

(Pls.' S.M.F. ,i 38.) Consequently, Dr. Ostrander did not order a follow-up PSA for Whittier

during the appointment. (Pls.' S.M.F. ii 39.) Nor did he take any steps to determine whether a

PSA had been ordered previously, and if so, what its result was. (Pls.' S.M.F. ,i 39.)

Dr. Andrews testified that these omissions again caused Dr. Ostrander's medical care to

violate the standard of care that he owed to Whittier. (Pis.' S.M.F. ,i,i 55f, 55g.) First, Dr.

Ostrander remained unaware of how Cerner was implemented such that test results obtained

from external labs did not populate on the flowsheet in the main screen of patients' EMRs. (Pis.'

S.M.F. ,i 55f.) Hence, Dr. Ostrander wrongfully assumed that all of Whittier's test results

appeared in his EMR's flowsheet. (Pls.' S.M.F. ,i 55f.) Relatedly, according to Dr. Andrews,

CMMC's failure to set up Cerner to enable physicians to view at once all of a patient's lab test

results, or in the alternative to train physicians that additional steps were required to view test

results from external labs taken before implementation of Cerner, violated the standard of care

that it owed to Whittier. (Pls.' S.M.F. ,i 55f.) This caused CMMC's physicians like Dr.

Ostrander to not understand that they had to look for those results beyond a patient's EMR

flowsheet. (Pls.' S.M.F. ,i 55f.)

Second, Dr. Andrews testified that Dr. Ostrander was required to address Whittier's

enlarged prostate, which was not addressed during their previous visit, and to determine whether

Whittier had undergone PSA testing. (Pls.' S.M.F. ,i 55g.) Also, Dr. Ostrander was required to

review Whittier's prior medical history, as he was still a new patient at the Minot Avenue Office.

(Pls.' S.M.F. ,i 55g.) Finally, Dr. Ostrander was required to understand that the 2016 PSA had

9
not been followed-up on, and that planned retesting had not been completed. (Pis.' S.M.F. ,i

55g.)

Dr. Ostrander remained unaware of Whittier's 2016 PSA result during October 2018

when he received the results of the broad range of tests that he ordered for Whittier the month

before.' (Pis.' S.M.F. ,i,i 38-39, 41.) Dr. Andrews testified that since Dr. Ostrander had not

reviewed Whittier's medical history as of October 2018, the standard of care newly required him

to do so upon receiving the test results. (Pls.' S.M.F. ii 55h.) On January 21, 2019, Dr.

Ostrander ordered a new PSA for Whittier, but that order was deemed a mistake and cancelled.

(Pis.' S.M.F. ,i 42.)

Whittier moved to North Carolina during late 2019 and established new primary care

there with Mark Braun, M.D. (Def.'s S.M.F. i! 26; Pis.' S.M.F. ,i 43.) On April 30, 2020, Dr.

Braun ordered a PSA for Whittier, which resulted in an elevated result of9.50. (Def.'s S.M.F. ,i

27.) Dr. Braun called Whittier to inform him of his elevated PSA result on May 15, 2020. (Pis.'

S.M.F. ,i 44.) On or around May 18-19, 2020, Whittier called the Minot Avenue Office and

engaged in a telehealth visit with Dr. Ostrander when they discussed the April 30, 2020, PSA

result, and Dr. Ostrander ordered additional PSA screening and refe1Ted Whittier to a urologist.

(Def.'s S.M.F. i! 28; Pls.' S.M.F. i! 45.)

On June 30, 2020, Whittier presented to a urologist affiliated with CMMC, who informed

Whittier that his 2016 PSA result was 12.70. (Def.'s S.M.F. ,i 29; Pis.' S.M.F. ,i 46.) Whittier

reported that he never knew that his 2016 PSA disclosed an elevated and abnormal result. (Pis.'

S.M.F. ,i 46.) On August 7, 2020, Whittier underwent a biopsy of his prostate, which

9Here, again, the parties dispute whether during October of 2018 Dr. Ostrander reviewed Whittier1s medical history,
whether Dr. Ostrander again missed Whittier1s 2016 PSA result because he was unaware how to properly navigate
the new EMR system or because of a system glitch, and whether Dr. Ostrander consequently developed a treatment
plan without reviewing Whittier's medical history. (Pls.' S.M.F. ~ 41.)

10
demonstrated an aggressive adenocarcinoma of the prostate. (Pis.' S.M.F. ,r 47.) Subsequently,

Whittier consulted other urologists with CMMC who confirmed his diagnosis and the extent of

his cancer, and recommended treatments options (either radical prostatectomy or definitive

radiation therapy). (Pis.' S.M.F. iJ,r 48-49.) On November 12, 2020, Whittier underwent a

radical prostatectomy, which revealed the cancer spread beyond his prostate. (Def.'s S.M.F. ,r

30; Pis.' S.M.F. ,r 50.)

IV. Plaintiffs' suit.

The progression of Whittier's aggressive cancer resulted in ongomg side effects,

including hot flashes, chronic fatigue, erectile and urinary incontinence. (Pis.' S.M.F. ,r 51.) On

June 4, 2021, the Plaintiffs filed a Notice of Claim. (Def.'s S.M.F. ,r 32.) On March 31, 2022,

the Plaintiffs filed their four-count complaint in the Superior Court. (Def.'s S.M.F. ,r 33.)

DISCUSSION

According to the Maine Healtlr Security Act ("MHSA"), 24 M.R.S. §§ 2501-2988

(2022), actions for professional negligence against health care providers and practitioners must

be commenced within 3 years after tire cause of action accrues. 24 M.R.S. § 2902 (2022). The

MHSA defines "healtlr care provider" as "any hospital, . . . or oilier facility in which skilled

nursing care or medical services are prescribed by or performed under the general direction of

persons licensed to practice medicine." Id. § 2502(2) (2022). A cause of action accrues under

the MHSA on the date of tire act or omission giving rise to the plaintiff's injury. Id. § 2902

(2022).

To prevail in any action for negligence, including professional negligence, the plaintiff

must prove that the defendant owed them a duty of care, that the defendant breached their duty to

the plaintiff, and tlrat the defendant's breach proximately caused the plaintiff's injury. Graves v.

11
S.E. Downey Registered Land Surveyor, 2005 ME 116, ~ I 0, 885. A.2d 779. Proximate cause is

generally a question for the factfinder, but the court may grant summary judgment to a defendant

when the plaintiffs allegations amount to no more than mere speculation or conjecture. See

Merriam v. Wanger, 2000 ME 159, ~ 10, 757 A.2d 778 (citations omitted). Otherwise,judgment

as a matter of law is improper if any reasonable view of the evidence could sustain a finding of

proximate cause. Houde v. Millett, 2001 ME 183, ~ II, 787 A.2d 757.

The Law Court interprets the MHSA to permit a single cause of action for professional

negligence where multiple acts or omissions combine to proximately cause a plaintiffs injury.

Baker v. Farrand, 2011 ME 91, ~~ 23-24, 26 A.3d 806.

[A] plaintiff may bring a single action alleging continuing negligent treatment that
arises from two or more related acts or omissions by a single health care provider
or practitioner where each act or omission deviated from the applicable standard
of care and to at least some demonstrable degree, proximately caused the harm
complained of, as long as at least one of the negligent acts or omissions occmTed
within the three years of the notice of claim.

Id. ~ 29. This is the "continuing negligence" theo1y. It is applicable only where the tortious acts

and omissions are related. Id. Further, they must, in combination, proximately cause the

plaintiffs injury. Id. ~ 24. "If so, the single cause of action must accrue from the date of the last

act or omission that contributed to the alleged injury because only then was the alleged

negligence complete." Id. This means that the cause of action accrues for the purposes of the

MHSA' s three-year statute of limitations period "on the date of the last act or omission by the

health care provider ... that contributed to the proximate causation of the patient's harm." Id. ~

25. In essence, to survive summary judgment, the Plaintiffs must show: (I) negligent acts within

the statute of limitations, (2) that they are related and caused the Plaintiffs' damages, and (3) that

they were committed by the same hospital provider.

12
CMMC argues that Plaintiffs' claims against CMMC under theories of vicarious liability,

which relate to the purported negligence of its employee-practitioners that accrued after the

statutory period, are not permitted by the continuing negligence theory as adopted in Maine.

(Def. 's Mot. Summ. J. I 2.) CMMC further argues that the Plaintiffs cannot prevail on a theory

of continuing negligence because they cannot point to any negligent acts that occurred within the

three-year statutmy period preceding their June 4, 2021, notice of claim. (Def.'s Mot. Summ. J.

2.)

I. Plaintiffs have generated genuine issues of material fact regarding instances of
CMMC's negligence that occurred after June 4, 2018.

There is evidence that Dr. Ostrander's practice was to review his patient's medical

history at each visit. He was an employee of CMMC at the time. When Whittier presented to

Dr. Ostrnnder during September 2018, Dr. Ostrander did not review Whittier's medical history or

ptior lab results because he did not open the "labs and diagnostics" folder in Whittier's EMR.

Had he done so, he would have located Dr. Short's 2017 record of Whittier's elevated PSA, the

2016 PSA result itself, as well as notes about planned follow-up testing. During October 2018,

Dr. Ostrander again did not review Whittier's full medical histmy, including prior lab results,

when he received the results of the global labs he ordered for Whittier on September 27.

The Plaintiffs have generated genuine issues of material fact that Dr. Ostrander's failure

to review Whittier's medical history was because the electronic records system did not make

them readily apparent, because Dr. Ostrander was not properly trained, or because he failed to

follow his training. These facts provide a reasonable inference that CMMC was negligent in

failing to locate and act upon Whittier's 2016 PSA test (1) during Whittier's September 2018

appointment and (2) when Dr. Ostrander revisited Whittier's EMR after receiving test results

during October 2018.

13
II. The conduct was by a single health care provider.

When the Law Court adopted the continuing negligence theory, it declared that " a

plaintiff may bring a single action alleging continuing negligent treatment that arises from two or

more related acts or omissions by a single health care provider." Baker, 2011 ME 91, ,r 29, 26

A.3d 806 (emphasis added). According to the MHSA, "provider" means "any hospital, ... or

other facility in which skilled nursing care or medical services are prescribed by or performed

under the general direction of persons licensed to practice medicine." Id. § 2502(2) (2022).

Generally, an employee's negligence is imputed to their employer when it occurs in the course of

their employment. See Legassie v. Bangor Puhl. Co., 1999 ME 80, ,r 5, 741 A.2d 442. So too, a

corporation commits negligence through the acts or omissions of its agents and employees. See,

e.g., Campbell v. Portland Sugar Co., 62 Me. 552, 566 (1873).

A plain reading of the applicable common law and statutes permits an action for

continuing negligence against a hospital provider for the negligence of its employees. The court

sees no basis to isolate the conduct of one employee from the conduct of another employee. The

court cannot say that, as a matter of law, Plaintiffs' continuing negligence claim must fail

because the relevant conduct was not the conduct of a single health care provider.

III. The court cannot find that the acts and omissions within and prior to the statute of
limitations are unrelated or that they did not proximately cause Plaintiffs' injuries
as a matter oflaw.

The Plaintiffs have raised genuine issues of material fact whether the acts and omissions

by CMMC's employee-practitioners from 2016 through September and October 2018 combined

to cause Whittier's injury. Each relates to CMMC's failure to inform Whittier about his 2016

PSA, or to act upon it.

CONCLUSION

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Based on the foregoing, the entry will be: Defendant Central Maine Medical Center's

Motion for Sununary Judgment is DENIED as to Plaintiffs' Counts I, III and IV, but is

GRANTED as to Plaintiffs' Count II.

The Clerk is requested to enter this Order on the Docket, incorporating it by reference

pursuant to Maine Rule of Civil Procedure 79(a).

/:I
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I /JO/ 7;_]
Date:-----'---.,'----"-'-------"'""-"---- ,,,,..,.-·''" ~\...- --"·

Thomas R. McKean
Justice, Business & Consumer Court

Entered on the docket: 01/31/2023

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