RANDY N. OLIVER, II et al.
EASTERN MAINE MEDICAL CENTER
Argued: December 13, 2017
Clifford, Esq. (orally), and Andrew P. Cotter, Esq., Clifford
& Clifford, LLC, Kennebunk, for appellants Randy N.
Oliver, II and Nicole Jernigan
W. Gould, Esq. (orally), Sandra L. Rothera, Esq., and Mariann
Z. Malay, Esq., Gross, Minsky & Mogul, PA, Bangor, for
appellee Eastern Maine Medical Center
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
In this action for professional negligence, Randy N. Oliver,
II (Oliver) and Nicole Jernigan, individually and as personal
representatives of the Estate of Randy N. Oliver, appeal, and
Eastern Maine Medical Center cross-appeals from a judgment of
the Superior Court (Penobscot County, A. Murray,
/.)■ See infra n.4. Oliver and Jernigan
challenge the part of the judgment concluding that EMMC was
not negligent when it discharged their father, Randy N.
Oliver (Randy), because the discharge was contrary to the
instructions they gave to the hospital in their capacity as
his court-appointed guardians. Because the court did not err
in its conclusions that, at the time he was discharged, Randy
had regained capacity to make his own health-care decisions
and that EMMC's discharge plan met the standard of care,
we affirm the judgment on the liability claim. EMMC appeals
the court's denial of its request for costs for expert
witness fees and expenses incurred during the prelitigation
screening panel process. We also affirm that determination.
The following facts are drawn from the court's findings,
which are supported by competent record evidence, and from
the procedural record. See In re Evelyn A, 2017 ME
182, ¶ 4, 169 A.3d 914.
On March 21, 2013, Randy's daughter, Nicole Jernigan, and
his ex-wife, Patricia Oliver, found Randy severely
intoxicated in his home and took him to Eastern Maine Medical
Center in Bangor. Jernigan and Patricia told EMMC staff that
Randy lived alone in his home, which had no running water and
presented significant sanitation issues. They also informed
hospital staff that Randy had been defrauded of money by
Randy was admitted to EMMC with diagnoses that included
hepatic encephalopathy (liver-related brain damage), possible
alcohol withdrawal, deterioration of functional status, and a
neglected state. At the time of the admission, Randy had
burns on his hands. During Randy's resulting
hospitalization, Jernigan and Patricia provided staff with
photographs of Randy's home, which showed fire hazards
inside. Jernigan also told the staff that items in the home
had caught fire more than once.
Randy remained hospitalized for nearly two months on a
medical admission. Throughout that time, he asked to be
discharged. Because of Randy's expressed and ongoing
desire to leave, the hospital assigned him a one-on-one aide
to prevent him from leaving.
On March 22, the day after Randy's admission, a
psychiatrist conducted an emergency psychiatric evaluation of
Randy, during which Randy expressed a lack of understanding
about why he was in the hospital. The psychiatrist concluded
that Randy's alcohol addiction was "potentially
lethal," that Randy likely suffered from
"significant cognitive impairment that would be slow to
resolve," and that a guardian might eventually need to
Nearly a week later, on March 28, a neuropsychologist,
Anthony Podraza, examined Randy. Dr. Podraza found that Randy
was a "fairly accurate historian," although Randy
reported that his biggest problem was a faulty water heater
at his house. Dr. Podraza was unable to complete the testing
process because of Randy's poor motivation and lack of
effort, but he was able to conclude that Randy did not have
"capacity to manage simple or complex finances
independently" or "to make informed decisions
regarding his health."
On April 5, Oliver and Jernigan filed a petition in the Waldo
County Probate Court to be appointed Randy's
co-guardians. In support of the petition, they submitted a
report of a physician who had examined Randy on April 1 and
concluded that Randy's prognosis was "probably poor
for recovery of appropriate insight necessary for self
care." The court scheduled a guardianship hearing for
May 7. In the interim, a visitor appointed by the Probate
Court, see 18-A M.R.S. § 5-303(b), (c) (2017),
interviewed Randy and wrote a report recommending that a
guardian be appointed and that Randy be placed in a secured
On May 7, the Probate Court [Longley, J.) held a
hearing on the guardianship petition and, based on the
physician's report generated by the April 1 evaluation,
appointed Oliver and Jernigan as Randy's co-guardians.
Importantly for this action, the order stated that the
guardians were authorized to "act only as necessitated
by [Randy's] actual mental and adaptive limitations or
other conditions warranting this procedure."
With the treatment provided at EMMC, Randy's condition
began to improve. On the same day as the guardianship
hearing, an EMMC hospitalist who was involved in Randy's
care ordered another neuropsychological examination after
observing Randy and questioning the need for ongoing
inpatient care. Dr. Podraza, who had examined Randy more than
a month earlier, conducted the examination that day. As the
court described it, Dr. Podraza's findings in his second
evaluation were "strikingly different" from those
of the March 28 assessment. Dr. Podraza described Randy as
"alert, friendly, pleasant, and very cooperative."
Randy informed Dr. Podraza that he was anxious to return to
his home and planned to quit drinking although without
therapy or group support. After conducting the examination,
Dr. Podraza concluded that Randy had capacity to "manage
simple or complex finances independently" and "make
better informed decisions regarding his health." Dr.
Podraza requested that a community case manager be referred
to Randy as a condition of his release from EMMC.
After Dr. Podraza's second neuropsychological evaluation,
EMMC concluded that Randy no longer needed acute medical care
and that the hospital was possibly holding him there against
his will. Oliver and Jernigan, however, disputed Dr.
Podraza's conclusion that Randy had regained capacity,
opposed his discharge from the hospital to any setting other
than a locked facility, and wanted a second opinion but were
unable to find an evaluator not affiliated with EMMC.
Although EMMC offered to have Randy evaluated by an EMMC
practitioner, Oliver and Jernigan ultimately informed EMMC
that they did not want another evaluation.
EMMC's vice president and in-house legal counsel
initially concluded that EMMC could not discharge Randy
without his guardians' consent. The attorney then
reconsidered the issue after reviewing the Probate
Court's guardianship order and, based on the provision of
the order that limited the guardian's authority to make
decisions for Randy only when Randy himself was not capable
of doing so, recommended that EMMC could release Randy if and
when he regained capacity.
During this time, Randy's assigned social worker at EMMC
assisted Randy with filling out a petition to terminate the
guardianship and a motion for appointment of counsel, which
included an indigency affidavit. Although Randy independently
obtained information needed for the paperwork, it was never
filed with the Probate Court.
On May 16, a certified nurse practitioner at EMMC who was
providing direct care to Randy assessed whether he should be
discharged. Based on his own assessment and his review of
Randy's medical record, including Dr. Podraza's
opinion following his May 7 assessment, the certified nurse
practitioner concluded that Randy had sufficient capacity to
manage his own affairs and decided to discharge him. The
discharge plan included referrals to Randy's primary care
provider, a pain clinic, and community case management, and a
recommendation to participate in substance abuse treatment.
That day, Randy's EMMC-based social worker left a message
for Oliver informing him of EMMC's decision to discharge
Randy and allow him to go home that day. The social worker
also called and spoke directly with Jernigan, who, again,
told him that neither she nor Oliver had authorized
Randy's discharge. The social worker offered to arrange
for a taxi to take Randy to her residence, but Jernigan
declined that offer.
EMMC went forward with its plan to discharge Randy, and he
left the hospital that day with a friend. Jernigan and
Patricia visited Randy at his home twice that night. When
they left Randy for the final time at around 9:00 p.m., he
was intoxicated. Randy died later that night as the result of
a fire that destroyed his entire home.
Oliver and Jernigan, individually and as representatives of
Randy's Estate, filed a complaint, later amended, against
EMMC in the Superior Court in late 2014. Although in its
final form the complaint contained a number of counts, each
of them was predicated on a claim of negligence except for a
count alleging intentional infliction of emotional
distress. The court (A Murray, /.) held a
five-day bench trial in June of 2016. In a judgment entered
on August 8, 2016, in which the court set out extensive
findings of fact and a thorough legal analysis, the court
concluded that EMMC was not negligent when it discharged