Foster v. Oral Surgery Associates, P.A.

2008 ME 21, 940 A.2d 1102, 2008 Me. LEXIS 22
CourtSupreme Judicial Court of Maine
DecidedJanuary 31, 2008
StatusPublished
Cited by28 cases

This text of 2008 ME 21 (Foster v. Oral Surgery Associates, P.A.) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Oral Surgery Associates, P.A., 2008 ME 21, 940 A.2d 1102, 2008 Me. LEXIS 22 (Me. 2008).

Opinion

GORMAN, J.

[¶ 1] Elizabeth Foster appeals from a judgment entered in the Superior Court (Cumberland County, Fritzsche, J.) in favor of Oral Surgery Associates, P.A. Foster argues that: (1) the court erred by disqualifying Foster’s expert witness; (2) the court erred by granting Oral Surgery Associates’s motion for judgment as a matter of law; (3) the court’s application of 24 M.R.S. § 2905(1)(A) (2007) is unconstitutional; (4) this Court should establish a more specific standard of care for informed consent for physician-researchers; and (5) section 2905(1)(A) should be interpreted to allow non-medical expert testimony. We affirm the Superior Court’s judgment.

I. BACKGROUND

[¶ 2] This case arose from a series of consolidated cases against Oral Surgery Associates (OSA)1 and several oral and maxillofacial surgeons for various claims associated with the failure of Vitek teflon proplast implants the defendants inserted in the plaintiffs’ temporomandibular joints to relieve joint malfunction.2 In the original complaint in this case, the plaintiffs alleged: (1) product liability; (2) breach of warranty; (3) negligence;3 and (4) loss of consortium. The negligence claim was based largely on the allegation that OSA, as physicians who had published a retrospective study of their patients with implants, knew of, but did not convey, the risks associated with the Vitek implants.

[¶ 3] The Superior Court (Delahanty, J.) granted OSA’s motion for summary judgment on all of the patients’ claims for failure to file notice of a claim within the three-year statute of limitations pursuant to the Health Security Act. See Brawn v. Oral Surgery Assocs. (Brawn I), 2003 ME 11, 819 A.2d 1014; 24 M.R.S. § 2902 (2007).

[¶ 4] In Brawn I,4 we affirmed the court’s entry of summary judgment on all [1105]*1105claims except the Category B (fraudulent concealment) claims of Foster and one other plaintiff, and all Category E claims described as a “breach of the duty to adequately advise the patient as to the risks to his/her health of leaving the implants in place during the period after the operation and within three years of the filing of the notice of claim.” Id. ¶¶ 19, 26, 30, 819 A.2d at 1025, 1027-28.

[¶ 5] In Brawn I, however, we neither expressly vacated nor affirmed a second summary judgment motion granted in favor of OSA by the Superior Court that found several patients’ breach of duty to warn claims no longer viable because they “learned of the dangers to their health more than three years before their notices of claim.” Id. ¶ 3, 819 A.2d at 1018-19. On remand, the Superior Court interpreted Brawn I as having affirmed the court’s grant of the second summary judgment motion. See Brawn v. Oral Surgery Assocs. (Brawn II), 2006 ME 32, ¶¶ 8, 9, 893 A.2d 1011, 1014-15.

[¶ 6] Additionally, on remand the court granted the surgeons’ new motions for summary judgment against several plaintiffs who had failed to file their notices of claim within three years after removal of their implants. See id. ¶7, 893 A.2d at 1014. The court found that the surgeons did not have a duty to warn the plaintiffs of the risks of the implants after removal of the implants. See id.

[¶ 7] On appeal, in Brawn II, we affirmed both judgments. Id. ¶ 21, 893 A.2d at 1017.

II. FOSTER’S PRESENT ACTION

[¶ 8] Elizabeth Foster is one of the original plaintiffs who brought claims against OSA and several other oral and maxillofacial surgeons. Foster’s case was chosen to go to trial after our disposition of Brawn I and Brawn II. As determined by the Superior Court, Foster’s remaining claims were Category B (fraudulent concealment of surgeon’s breach of duty to adequately warn the patient before surgery) and Category E (breach of duty to adequately advise the patient of the risks of leaving the implants in after the operation) claims only. Both claims necessarily involve the issue of informed consent.

[¶ 9] At trial, Foster proffered the testimony of Professor Ronald Green, who holds a Ph.D. in ethics and bioethics and teaches at Dartmouth Medical School, to give an expert opinion regarding informed consent. The court conducted a voir dire examination of Green, outside the presence of the jury, to determine the relevance of his testimony and his qualifications to testify as an expert on informed consent. After voir dire, and upon consideration of OSA’s motion to exclude, the court excluded Green’s testimony.

[¶ 10] Subsequently, OSA, pointing out that Green’s testimony was Foster’s only informed consent evidence, moved for judgment as a matter of law. Foster conceded that Green was her only witness on the standard of care for informed consent. The court granted the motion and entered judgment for OSA on all claims.

[¶ 11] Foster filed this appeal. Additionally, both the Maine Trial Lawyers Association and Maine Medical Association filed amicus briefs.

III. DISCUSSION

[¶ 12] Foster’s first argument on appeal is that the court erred by excluding Professor Green’s testimony. We disagree.

[¶ 13] During the voir dire examination, Professor Green explained that he planned to testify, from an ethical view[1106]*1106point, about what the standard of informed consent should have been in any clinical or research context both before and after OSA inserted the implants. Green testified that he had no actual knowledge or information about what oral or maxillofa-cial surgeons were doing with regard to informed consent at the relevant time. He explained that his opinion in this case was based on a consent document used by OSA, which he reviewed and found to be inadequate. Green acknowledged that he did not know what OSA actually did or what verbal components of informed consent were used by OSA. He also testified that the verbal components of informed consent are as important as the written components.

[¶ 14] After conducting voir dire of Green and reviewing OSA’s motion to exclude, the court determined Green was not qualified to testify regarding informed consent in this case, saying:

[w]hile he’s certainly well qualified as to issues of ethics and knowledgeable as to informed consent, the information presented in the motion to exclude him and in the hearing so far certainly indicate that he’s not qualified to give the required medical testimony that’s required by both the case law and the statute in Title 24....

[¶ 15] We review evidentiary rulings for abuse of discretion and clear error. Me. Shipyard & Marine Ry. v. Lilley, 2000 ME 9, ¶ 20, 743 A.2d 1264, 1269. The Superior Court’s exclusion of Green’s testimony was based on the requirements of section 2905 and on Maine case law regarding informed consent. Title 24 M.R.S. § 2905(1)(A) provides:

No recovery may be allowed against ... any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient ... when: (A) The action of the [health care provider] in obtaining the consent of the patient ...

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Bluebook (online)
2008 ME 21, 940 A.2d 1102, 2008 Me. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-oral-surgery-associates-pa-me-2008.