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Oliver v. Eastern Maine Medical Center

Supreme Court of Maine

August 21, 2018


          Argued: December 13, 2017

          Peter Clifford, Esq. (orally), and Andrew P. Cotter, Esq., Clifford & Clifford, LLC, Kennebunk, for appellants Randy N. Oliver, II and Nicole Jernigan

          Edward W. Gould, Esq. (orally), Sandra L. Rothera, Esq., and Mariann Z. Malay, Esq., Gross, Minsky & Mogul, PA, Bangor, for appellee Eastern Maine Medical Center


          HJELM, J.

         [¶1] 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.


         [¶2] 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.

         [¶3] 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 scammers.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 be appointed.

         [¶7] 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."

         [¶8] 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 dementia facility.

         [¶9] 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."

         [¶10] With the treatment provided at EMMC, Randy's condition began to improve.[1] 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.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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.

         [¶14] 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.

         [¶15] 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.

         [¶16] 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.


         [¶17] 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.[2] 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 Randy ...

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