Apologies and Settlement Offers under Maine Medical Malpractice Law

Strout v. Central Maine Medical Center, — A.3d — (Me. 2014)

After looking at a CAT scan that revealed a large lesion in the patient’s liver, a physician told the patient that, although he was still waiting for the final pathology results, he believed that the patient may be suffering from either hepatic or pancreatic cancer, which would be inoperable due to the size and location of the lesion. The physician also informed the patient that even with chemotherapy, his life may be measured in months. This assessment turned out to be wrong: several weeks later, the pathology results revealed that the patient did not suffer from hepatic or pancreatic cancer. Instead, he had B-cell non-Hodgkins lymphoma, which has a five-year survival rate of eighty-five to ninety percent.

This news must have made the patient happier than he was before, but the patient still decided to complain against the physician. He forwarded this complaint to the President of the medical center that employed the physician.

The President sent the patient the following response:

“As he shared his clinical thinking at the time, [the physician] truly did feel that you were dealing with a very aggressive Stage 4 cancer with a very low survival rate. He in no way wanted to harm either you or your wife but wanted you to have a full understanding of what he thought he would be helping you to deal with. The level of his concern can be seen in the fact that he shared his personal cell phone number with you. That being said, he realizes now that prior to sharing his clinical impressions with you, he needed to wait for the results of the biopsy to confirm what the cancer was. [The physician] is a very dedicated, caring provider …. [and] I know that he will also be sharing the wisdom he has gained from this experience with his colleagues in the practice. I have had …. Patient Financial Services to identify any outstanding balances related to care provided [the physician] and have authorized that these balances …. be written off as a gesture of acknowledgement for the concern you brought to our attention.”

The patient decided that the apology and fee waiver aren’t enough. He sued the physician and the medical center for malpractice that allegedly caused him emotional distress and other damages.

At trial, the patient relied on the President’s letter as evidence of malpractice. The court ruled that the letter contains only one admissible sentence: “That being said, he [the physician] realizes now that prior to sharing his clinical impressions with you, he needed to wait for the results of the biopsy to confirm what the cancer was.” The letter was redacted in tune with this ruling and submitted to the jury. Following the trial, the jury returned a $200,000 verdict in the patient’s favor.

On appeal before the Maine Supreme Court, the medical center argued that the trial judge ought to have suppressed the entire letter. This argument relied on Maine’s Apology Statute, 24 M.R.S. § 2907(2):

“In any civil action for professional negligence … any statement, affirmation, gesture or conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence that is made by a health care practitioner or health care provider or an employee of a health care practitioner or health care provider to the alleged victim, a relative of the alleged victim or a representative of the alleged victim and that relates to the discomfort, pain, suffering, injury or death of the alleged victim as the result of the unanticipated outcome is inadmissible as evidence of an admission of liability or as evidence of an admission against interest. Nothing in this section prohibits the admissibility of a statement of fault.”

The medical center also alluded to the settlement negotiations privilege, M.R. Evid. 408(a): “Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromise or attempting to compromise a claim is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim.”

The Maine Supreme Court rejected both arguments and dismissed the appeal. The Court reasoned that the admitted part of the President’s letter was a “statement of fault” that expressed no “apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence.” Hence, it was admissible. The Court also held that the letter was not protected by the settlement negotiations privilege because its fee-waiver offer did not attempt to settle a “claim.” The Court explained that the President “sent the letter to [the patient] in December 2009, long before [the patient] filed his notice of claim against [the medical center] in February 2011. Because there is no evidence of any disputed claim in existence at the time of the admission, the [trial] court properly concluded that the statements contained in the letter were not made as part of a settlement negotiation or mediation.”

This decision is deeply problematic. As an initial matter, the admitted part of the President’s letter was not a “statement of fault.” The physician’s acknowledgment “that prior to sharing his clinical impressions with [the patient], he needed to wait for the results of the biopsy to confirm what the cancer was” did not concede that he committed malpractice when he shared his initial clinical impressions with the patient. The President’s apology for this sharing of tentative information consequently could not be admitted into evidence under 24 M.R.S. § 2907(2). Everything he wrote to the patient squarely fell into the protected communications category under the Apology Statute.

Furthermore, the patient’s complaint against the physician “crystalized to the point of threatening litigation,” which the President’s letter tried to avoid. For these reasons, the medical center actually was entitled to the settlement negotiations privilege (Big O Tires Dealers, Inc. v. Goodyear Tire and Rubber Co., 561 F.2d 1365, 1372-73 (10th Cir. 1977); Blu-J, Inc. v. Kemper, 916 F.2d 637, 642 (11th Cir. 1990)).

The Strout precedent was therefore doubly wrong and the Maine Supreme Court should fix it as soon as possible. Until then, Maine doctors and medical centers will do well to involve attorneys in communicating their regrets and gestures to patients.