PATRICIA M. AKERSON, Plaintiff,
CARY MEDICAL CENTER, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE
Harold Stewart II, Justice.
action for professional negligence, Plaintiff Patricia M.
Akerson moves to exclude six pages of records produced by
Defendant Cary Medical Center following completion of the
pre-litigation screening panel process. Plaintiff argues, in
essence, that she is prejudiced by Defendant's failure to
make these records part of the panel process because the
panel has already issued its findings and she has already
taken depositions based on the assumption that these records
did not exist. Defendant argues that only it was prejudiced
by the failure to produce during the panel process because
the six pages of records were helpful to its position before
case stems from Plaintiffs October 12, 2015 visit to
Defendant's emergency room where she was treated for an
expanding hematoma. Plaintiff alleges that Defendant
negligently failed to treat the hematoma properly and that
she was discharged on October 12 with boilerplate
instructions that failed to reference the risks associated
with expanding hematomas and skin ischemia. Plaintiff had to
return to the hospital the next day with a ruptured hematoma,
Defendant asserts that it discharged her with boilerplate
discharge instructions along with the additional six pages
that are the subject of this motion.
issue has come about because the parties proceeded through
the pre-litigation screening panel process, had the panel
hearing on January 18, 2018, and received the panel's
findings following the hearing. See 24 M.R.S.
§§2851-2859 (2017). Not until one week after the
panel hearing was held did Defendant produce the six pages at
issue with the intent to use them during the course of the
litigation regarding any professional negligence by
Defendant. Plaintiff argues that this would negate the panel
process and decree because it would require what is
effectively a re-litigation of the panel findings, She also
argues it would require re-deposing witnesses. Defendant
argues that any prejudice suffered as a result of this
failure to disclose these six pages was borne by Defendant
because it believes these documents would have been useful to
its position before the screening panel. Both parties point
to Jucius v. Estate of O'Kane, 511 A.2d 1053
(Me. 1986), each for their opposing positions.
plaintiff in Jucius sought to hold the doctor liable for
failing to diagnose a bowel infarction. Id. at
1053-54, On the morning of trial, the doctor's attorney
gave the plaintiffs attorney and the court a copy of progress
notes which contained two additional entries from the copy of
the progress notes previously obtained by the plaintiff.
Id. at 1054. The trial court excluded the copy of
the progress notes that the plaintiff had previously obtained
and substituted the copy with the two additional notes, thus
barring the plaintiff from questioning the doctor about the
discrepancy between the two sets of progress notes.
Id. at 1055. On appeal, the Law Court "[did]
not approve of the removal of [the copy without the two
additional entries] from the Hospital's medical records
admitted into evidence and its replacement by [the copy with
the two additional entries]." Id. The Law Court
emphasized that, "[f]or the integrity of judicial review
of the hospital process[, ] it is essential that complete
and accurate hospital medical records be admitted, as
appropriate, into evidence." Id. (emphasis
added). It held that the trial court's error was harmless
because the two additional entries were not relevant to
Plaintiffs claim of when the bowel infarction occurred.
Id. at 1056.
lesson to be learned from Jucius is that the entire
medical record, as applicable, should be before the
fact-finder, Any exclusion of the six pages at issue on the
motion would not allow the fact-finder to decide the case
with the full picture in mind. Plaintiff argues that she
never received these six pages when she was originally
discharge. Defendant argues she did receive them. This is a
discrepancy that can be put before the fact-finder. Either
way, "it is essential that complete and
accurate hospital medical records be" used this
case. Id. (emphasis added).
Court is cognizant of the burden that might be placed on
Plaintiff should Plaintiff have to re-depose any number of
witnesses who may have something to say on the six additional
pages of the discharge notes. Because the absence of these
six pages during the panel process was due to actions (or
inactions) on Defendant's pail, however inadvertent,
Defendant should bear the cost of any depositions that need
to be retaken in order for a complete discovery record to be
established. Also, the court notes that its decision to allow
the use of the new records in no way alters or affects the
result and findings made by the screening panel, and that the
panel findings are admissible in any subsequent court action
pursuant to 24 M.R.S. § 2857 (1)(B) and (C). The entry
1. Plaintiffs Motion to Exclude New Records is
DENIED. As Plaintiffs remedy for
Defendant's failure to produce these records previously,
any costs necessary for Plaintiff to depose or re-depose
witnesses or parties based on these six pages of records
shall be borne by Defendant.
2. The Clerk is directed to incorporate this Order into the
docket by reference pursuant to M.R. Civ. P. 79(a).
 Defendant also asserts that it does
not consider these six pages to be part of Plaintiffs medical
record, which is why they were not provided when Plaintiff
exercised her statutory right to obtain a certified copy of
her complete medical record. See 22 M.R.S. §
1711 (2017). The proposition that these six pages- which
contain detailed information about home care and warning
signs related to her injury-are not medical records strikes
the Court as strange, particularly when it appears ...