DOROTHEA B. McCAIN
JOHN F. VANADIA et al.
Argued: April 11, 2018
F. Martemucci, Esq., and Robert P. Hayes, Esq. (orally),
Germani Martemucci & Hill, Portland, for appellant John
G. Lavoie, Esq., and Jennifer A.W. Rush, Esq. (orally),
Norman, Hanson & DeTroy, LLC, Portland, for appellant St.
Benjamin R. Gideon, Esq., and Taylor A. Asen, Esq. (orally),
Berman & Simmons, P.A., Lewiston, for appellee Dorothea
Frink Wolf, Esq., and Rachel M. Wertheimer, Esq., Verrill
Dana LLP, Portland for amici curiae Maine Hospital
Association and Maine Medical Association
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and
Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and
John F. Vanadia, D.O., Bangor Surgical Associates, P.A., and
St. Joseph Hospital appeal from an order of the Superior
Court (Penobscot County, A Murray, J.), acting as
medical malpractice screening panel chair pursuant to 24
M.R.S. § 2852(6) (2017) and M.R. Civ. P. 80M(e),
granting Dorothea B. McCain's motion to compel them to
produce in discovery thirty redacted, nonparty patient
medical records that the court found were relevant to
McCain's notice of claim asserting medical negligence.
The appellants contend that the court erred in ordering the
records' disclosure because they are (1) irrelevant to
McCain's claim and (2) protected from disclosure by state
and federal statute and by the physician-patient privilege
set out in M.R. Evid. 503.
McCain has moved to dismiss this interlocutory appeal on two
grounds, asserting first that decisions of the Superior Court
acting as panel chair are not appealable, see Gafner v.
Down E. Cmty. Hosp., 1999 ME 130, ¶ 12 735A.2d 969;
and second that dismissal is required pursuant to the final
judgment rule, see Bd. of Overseers of the Bar v.
Warren, 2011 ME 124, ¶ 19, 34A.3d 1103 ("The
general rule is that discovery orders are deemed
interlocutory and therefore are reviewable only on appeal
from the final judgment").
Given the unusual procedural posture presented here, we hold
that the discovery order issued during the course of the
panel proceedings is now a nullity and therefore does not
govern future proceedings in this case. Accordingly, no
exception to the final judgment rule applies that would
require us to reach the merits of the parties' arguments
now, and we remand the matter to the Superior Court.
In November 2015, John Vanadia, the sole physician employed
by Bangor Surgical Associates, P.A., performed a laparoscopic
cholecystectomy (gallbladder removal) on Dorothea McCain at
St. Joseph Hospital in Bangor. During the procedure, Vanadia
cut McCain's common bile duct after mistaking it for her
cystic duct, necessitating corrective surgery soon
On June 30, 2016, McCain filed a notice of claim against
Vanadia and Bangor Surgical Associates, P.A. (collectively
Vanadia), alleging medical negligence; her claim was later
amended to include St. Joseph Hospital (SJH). See 24
M.R.S. § 2853(1) (2017); M.R. Civ. P. 80M(b)(1). The
Chief Justice of the Superior Court appointed a medical
malpractice screening panel chair pursuant to 24 M.R.S.
§ 2852(2)(A) (2017) and M.R. Civ. P. 80M(b)(2).
In May 2017, McCain filed a motion to compel the production
in discovery of "[t]he operative notes for each and
every [laparoscopic cholecystectomy] performed by Vanadia in
2015 with the names and any identifying information for the
individual patients redacted to preserve patient
confidentiality." When Vanadia and SJH objected, the
panel chair referred the motion to the Superior Court.
See 24 M.R.S. § 2852(6); M.R. Civ. P. 80M(e).
Pursuant to M.R. Civ. P. 26(g), the court held a hearing and
granted the motion, ordering that Vanadia and SJH produce the
operative notes for the fifteen laparoscopic
cholecystectomies performed by Vanadia preceding McCain's
procedure and for the fifteen following her procedure. The
court took great care to order that the records be heavily
redacted to protect the identities of the patients.
Vanadia and SJH filed a motion to reconsider and a timely
notice of appeal; McCain then moved this Court to dismiss the
appeal. The trial court declined to act on the motion to
reconsider because of the pending appeal, see M.R.
App. P. 3(b) (Tower 2016),  and we consolidated our