The Practical Implications of the Continuing Negligent Treatment Doctrine
Written by Craig A. Bramley
Since 1985, Maine’s Health Security Act (“HSA”) has prescribed a shortened limitations period for medical malpractice cases— three years for claims by adults and six years or three years from the age of majority for minors. This statute has been strictly construed, with the only recognized exceptions in cases where a foreign object was inadvertently left in a patient or a provider fraudulently concealed negligent conduct. Strict enforcement of the HSA’s statute of limitations has provided certainty to medical providers and insurance companies, but denied recovery to victims of malpractice occurring over a number of years.
In 2011, Berman & Simmons won a significant victory for patients harmed by long courses of negligent medical treatment. In Baker v. Farrand, 2011 ME 91; 26 A.3d 806, the Law Court recognized the continuing negligent treatment doctrine, which makes recovery possible in some cases where it was previously impossible. The adoption of the continuing negligent treatment doctrine in Maine brings an opportunity for recovery to additional victims of medical malpractice, but adds complexity to the process of screening potential medical malpractice claims. In order to competently evaluate the many potential medical malpractice claims, attorneys must understand the continuing negligent treatment doctrine and the issues it raises.
The HSA provides that actions for medical negligence “shall be commenced within 3 years after the cause of action accrues.” 24 M.R.S.A. § 2902. This section continues, “a cause of action accrues on the date of the act or omission giving rise to the injury.” Maine’s Superior Court Justices accepted the argument of medical providers and their insurers that the HSA barred recovery for any negligence occurring outside of the three year period. This interpretation denied relief to patients suffering because of medical errors occurring over months or years. The harm to those patients results not from failure on a single day, but from an extended course of negligent treatment. For example, when a physician repeatedly fails to respond to the signs and symptoms of cancer, the harm often results from negligence over a period of time rather than on a single day.
Philip Baker was 53 years old in 2002, when prostate specific antigen (“PSA”) testing ordered by his primary care physician returned with elevated results. Dr. Farrand failed to report the PSA result to Mr. Baker or to refer him to a urologist for evaluation for possible prostate cancer. From 2003 through 2006, Mr. Baker underwent yearly PSA testing and on each occasion the results were in the range suggestive of prostate disease. When Mr. Baker’s physician finally referred him to a urologist in 2006, the urologist diagnosed adenocarcinoma of the prostate. The delay in the diagnosis and treatment of his cancer limited Mr. Baker’s treatment options and worsened his prognosis.
Berman & Simmons filed an HSA Notice of Claim on behalf of Mr. Baker in September of 2007. Respondents moved for partial summary judgment to limit Mr. Baker’s claims to acts that occurred within three years of the filing of the Notice of Claim. The Law Court accepted the case on report and held that the term “act or omission” in the HSA refers to either a single act or omission or a series of related acts or omissions. The Court concisely set out its formulation of the continuing negligent treatment doctrine.
[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 alleged negligent acts or omissions occurred within three years of the notice of claim.
In every potential case implicating the continuing negligent treatment doctrine, the attorney must consider several basic questions before committing the substantial investment of time and money required in a medical malpractice case.
- Was there an ongoing relationship between the patient and medical provider?
- Were the acts or omissions related as part of a continuing course?
- When did the continuing course of negligent treatment begin and end?
- Did the acts or omissions occurring within 3 years proximately cause the injury to at least some demonstrable degree?
Beyond these basic questions, particular claims may present more complex issues. Some of these issues have been addressed in the Superior Court, others have not. In one decision, the ruling Superior Court Justice held that a physician-patient relationship existed when a specialist who had previously treated the patient for the same symptoms consulted with the patient’s primary care physician by telephone. Another justice found that the course of treatment was continuing even though the treating doctor incorrectly attributed the patient’s symptoms to a different diagnosis in the middle of an eight year course of treatment.
Maine Courts have not yet considered other issues raised by the adoption of the continuing negligent treatment doctrine. For example, can the acts and omissions of multiple practitioners in a single practice constitute a continuing course of negligent treatment? If a doctor fails to act in response to test results suggestive of a serious illness but continues to see the patient for other conditions, does the failure to act at subsequent visits qualify as omissions that continue the course of negligent treatment?
The adoption of the continuing negligent treatment doctrine in Maine adds complexity to the evaluation of potential medical malpractice cases. This change in law has given life to some cases in which recovery previously would have been impossible, but the bright line rule of three years is gone and it is replaced with multiple factors that attorneys must consider. Attorneys screening medical malpractice cases should not automatically rule out a case where the bulk of the negligence occurred more than three years prior. The screening attorney should instead carefully review the patient’s treatment history and consult with an attorney experienced in medical negligence.