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Cutting v. Down East Orthopedic Associates P.A.

United States District Court, D. Maine

May 2, 2019



          John C. Nivison U.S. Magistrate Judge

         In November 2016, Plaintiff commenced a medical negligence action in state court against Defendant related to treatment Defendant provided in 2013 (the state court action). As required by Maine law, after Plaintiff filed a notice of claim, the state court action proceeded in accordance with the Maine Health Security Act's Mandatory Prelitigation Screening Panel Process (the panel process) (24 M.R.S. §2852 et seq.).

         In this action, Plaintiff alleges medical negligence, including Defendant's failure to obtain a proper informed consent from Plaintiff for surgery, and contends certain rulings made by the panel chair and thus the ultimate decision of the prelitigation screening panel violated her constitutionally-protected due process rights. (Complaint, ECF No. 1.)

         Defendant has moved to dismiss Plaintiff's complaint, citing this Court's lack of subject matter jurisdiction. (Motion, ECF No. 10.) After consideration of the parties' arguments, the Court grants the motion to dismiss.

         Factual Background

         Plaintiff claims that in 2013, Defendant, through its agent, D. Thompson McGuire, M.D., failed to obtain the proper informed consent for and was otherwise negligent in its treatment of Plaintiff, which treatment included shoulder surgery. (Complaint, Counts I & II.) In Count III of her complaint, Plaintiff seeks a declaratory judgment that the findings of the state court prelitigation screening panel are inadmissible at trial as the panel process violated her constitutional right to due process. (Complaint at 20.)

         To proceed on a state law claim for medical negligence in Maine, a claimant must first present a notice of claim to a malpractice screening panel. See generally 24 M.R.S. § 2852; Me. R. Civ. P. 80M. Plaintiff alleges that the conduct of the panel process in her case “violated [her] right to procedural due process under the Fourteenth Amendment to the United States Constitution.” (Id. ¶ 60.)

         In support of her claim for declaratory judgment, Plaintiff asserts that early in the process, the panel chair demonstrated her bias when she referred to Plaintiff's claim as “just a shoulder.” (Id. ¶ 73.) Plaintiff also contends the panel chair's bias was evident in multiple rulings throughout the process. (Id. ¶ 61.)

         In advance of the hearing before the panel, Plaintiff filed a motion to preclude Defendant from relying on the testimony of two experts on the same issue (informed consent); Plaintiff argued the use of more than one expert on the same issue violated the applicable rules. (Id.) The panel chair denied Plaintiff's motion. Plaintiff also sought to exclude the testimony of one of Defendant's experts because that expert did not practice in the field of orthopedic surgery. (Id. ¶¶ 76 - 77.) The panel chair denied Plaintiff's requested relief. (Id. ¶ 78.)

         Plaintiff further alleges that the panel chair improperly granted Defendant's motion to exclude the testimony of Plaintiff's medical expert witness, and Defendant's motion to exclude evidence regarding Dr. McGuire's history of professional discipline. (Id. ¶¶ 84, 87.) Plaintiff also asserts that by permitting Defendant to present the transcript of an expert's deposition in lieu of the expert's live testimony, the panel chair disregarded Maine Rule of Civil Procedure 80M, the applicable procedural rule, which provides: “The parties shall have the right to examine and cross-examine witnesses.” (Id. ¶ 79.)

         Finally, Plaintiff contends the panel chair impermissibly and unilaterally determined that discriminatory treatment of a patient did not violate the standard of care by concluding that Dr. McGuire's “actions or inactions alone are properly before the panel, ” and by ignoring whether discriminatory actions could be considered a violation in the standard of care. (Id. ¶ 86.)

         According to Plaintiff, when the original hearing was postponed due to inclement weather, the panel chair contacted the other panel members to determine whether they believed they had enough information to decide Plaintiff's case on the written submissions; the panel members reported they believed they could decide the case on written submissions. (Id. ¶ 63.) The panel chair subsequently advised the parties that it was “up to you both to decide if that's how you wish to proceed. We are also okay with having a hearing.” (Id. ¶ 64.) The matter proceeded to a hearing and the panel voted unanimously in favor of Defendant.[1] (Id. ¶ 96.) Plaintiff asserts the panel chair's suggestion that the matter could proceed without a hearing was contrary to the applicable law and that the panel's apparent assessment of Plaintiff's claim before the hearing violated her due process rights. (Id. ¶¶ 70 - 72.)


         “‘Federal courts are courts of limited jurisdiction,' possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton,568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of America,511 U.S. 375, 377 (1994)). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the ...

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