MEDICAL MALPRACTICE Use of Panel FindingsPosted by BS - 15/07/11 at 02:07 pm
Jacob v. Kippax, 2011 ME 1, 10 A.3d 1159, Silver, J.
This is a dental malpractice case in which the plaintiff alleged negligence and failure to obtain informed consent for oral surgery. The Law Court affirmed the judgment on a jury trial against the plaintiff. The first issue addressed by the Court was whether the Superior Court erred in excluding evidence of disciplinary action against him. The Superior Court granted a motion in limine but stated that evidence of the disciplinary action could be allowed to impeach evidence of habit or practice. The Law Court found that this ruling was not an abuse of discretion, particularly because the Superior Court indicated its openness to allowing the evidence under certain circumstances. The Court rejected the plaintiff’s arguments that the evidence was relevant to impeach the defendant and his expert by showing bias and lack of credibility, for the admissions it contained, to show absence of mistake or motive, and to rebut habit evidence. The Court concluded that the evidence lacked probative value for these issues and that the risk of unfair prejudice outweighed its probative value.
The defendant also argued that the trial court had improperly admitted habit evidence in the defendant’s favor, but the Law Court also overruled this argument on the ground that the evidence was relevant because the defendant claimed he could not remember his specific treatment of the plaintiff but used routine practice in some instances to fill in the holes.
On the issue of the misuse by the defendant of the negative panel findings, the plaintiff moved for a mistrial after objecting several times to the defendant’s closing statement on the ground that he was making many references to the screening panel findings and had left an enlargement of the screening panel decree visible to the jury while he was discussing the verdict form. The Law Court held that the trial court had not erred in denying the mistrial motion because the defendant’s attorney only referred to the panel decree to state what it had found, which did not go beyond the scope of the instructions that the court had given, and the display of the enlargement was only for limited periods. The plaintiff failed to establish that the use of the illustrative aid and the references to the decree were exceptionally prejudicial.
Finally, the Law Court found no error in the jury instructions on either informed consent or the screening panel findings. The latter instruction was almost verbatim from Alexander, and the former instruction followed the statute and did not suggest an incorrect interpretation of it.
The Court took the opportunity to clarify the interpretation of the informed consent statute, 24 M.R.S.A. § 2905(1), which has three paragraphs: (a), (b), and (c), the last two of which are joined by an “or.” The Court noted that the Legislature removed the word “and” between subsections (a) and (b) in 1991, supporting the Court’s reading of the statute as (a) or (b) or (c), rather than (a) and (b) or (c).