Musk v. Nelson

647 A.2d 1198, 1994 Me. LEXIS 187
CourtSupreme Judicial Court of Maine
DecidedSeptember 29, 1994
StatusPublished
Cited by46 cases

This text of 647 A.2d 1198 (Musk v. Nelson) 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
Musk v. Nelson, 647 A.2d 1198, 1994 Me. LEXIS 187 (Me. 1994).

Opinions

RUDMAN, Justice.

Gail G. Musk appeals from the judgment entered in the Superior Court (Lincoln County, Perkins, A.R.J.) granting Nancy Nelson’s [1200]*1200motion to dismiss her claim based upon a faded sterilization as barred by the statute of limitations. Musk, inter alia, contends (1) that section 2931 of title 24 of the Maine Revised Statutes Annotated creates a cause of action for a failed sterilization, 24 M.R.S.A. § 2931 (1990) (Wrongful life/wrongful birth); that is distinct from other actions for professional negligence, 24 M.R.S.A. § 2902 (statute of limitations for professional negligence); (2) that the statute of limitations for actions for professional negligence permits us to expand judicially the limited discovery rule provided in the statute; and (3) that if we interpret the statute of limitations to bar her claim, then the statute will violate her constitutional rights to due process and equal protection. We disagree with all of Musk’s contentions and affirm the judgment of the Superior Court dismissing Musk’s claim as barred by the applicable statute of limitations.

On February 15,1989, Nelson performed a tubal ligation on Musk. Nearly three years later, Musk learned that she was pregnant. Musk formally notified Nelson of her claim for the failed sterilization on March 5,1992— more than three years after the procedure was performed. A few months later, Musk gave birth to a healthy son.

I. Professional Negligence

Musk first argues that an action for wrongful sterilization is not an action for professional negligence, and therefore is not barred by the statute of limitations applicable to such actions. Musk relies on the interplay of several sections of the Maine Health Security Act. 24 M.R.S.A. §§ 2501-2961 (1990) (enacted by P.L.1985, ch. 804). See 24 M.R.S.A. § 2502(6) (“Action for professional negligence”); id. § 2902 (“Statute of limitations for health care providers and health care practitioners”); id. § 2931 (“Wrongful birth; wrongful life”).1 Musk contends that her action based on a failed sterilization is not an action for professional negligence under the Act, id. § 2502(6), because it is an action for damages allowed by the Wrongful Birth/Life Statute, id. § 2931(2). Therefore, says Musk, her action is not subject to the three-year statute of limitations applicable to actions for professional negligence. Id. § 2902.

This argument is not persuasive. The Wrongful Birth/Life Statute does not create a cause of action. On the contrary, it repudiates certain types of actions, and limits available damages for other, related actions. [1201]*1201The statute establishes a general rule that actions based on the birth of a healthy child are contrary to public policy, and provides for a limited exception to that rule:

A person may maintain a claim for relief based on a failed sterilization procedure resulting in the birth of a healthy child and receive an award of damages for the hospital and medical expenses incurred for the sterilization procedures and pregnancy, the pain and suffering connected with the pregnancy and the loss of earnings of the mother during pregnancy.

Id. § 2931(2). This provision is not a provision for strict liability, as suggested by Musk.

Even if it were a basis for strict liability, it would still fall within the definition of an action for professional negligence under the Act. Id. § 2502(6). The Wrongful Birth/Wrongful Life provision, the section defining professional negligence, and the statute of limitations were all enacted as part of a package — the Maine Health Security Act. 24 M.R.S.A. §§ 2501-2961 (1990) (enacted by P.L. 1985, ch. 804). The sections must be read together. Givertz v. Maine Medical Center, 459 A.2d 548, 554 (Me.1983).

The Act’s definition for professional negligence encompasses “any action for damages ... against a health care provider, its agents or employees, ... whether based on tort or breach of contract or otherwise_” 24 M.R.S.A. § 2502(6) (emphasis added). Strict liability is a tort theory. See Restatement (Second) of Torts § 402A (1965) (strict liability). In any event, the language “or otherwise” shows that the Legislature wanted its new act to occupy the field with regard to actions against health care providers. The Act sought to control the cost of medical malpractice insurance. See L.D. 2065, Statement of Fact (112th Legis.1985). Therefore, we hold that an action for a failed sterilization is an action for professional negligence as defined in the Maine Health Security Act.

II. The Discovery Rule

Section 2902, the Act’s statute of limitations, provides that an action for professional negligence against health care providers accrues “on the date of the act or omission giving rise to the injury,” except in cases based on the leaving of a foreign object in the patient’s body when the cause of action accrues when the patient discovers or reasonably should discover the harm. 24 M.R.S.A. § 2902. Musk argues that section 2902 does not preclude us from expanding the discovery rule to encompass failed sterilizations. When a statute already defines accrual, however, we are not free to re-define the term. Anderson v. Neal, 428 A.2d 1189, 1191 (Me.1981) (“absent explicit legislative direction,” definition of accrual in general statute of limitations left to the Court).

The question we must answer is whether the Legislature intended to preclude the availability of the discovery rule in cases where no foreign object is left inside the patient’s body. See McAfee v. Cole, 637 A.2d 463 (Me.1994). We look first at the plain language of the statute to determine whether the legislative intent is plain and unambiguous. In re James John L., 601 A.2d 630, 631 (Me.1992). The Maine Health Security Act Statute of Limitations states:

Actions for professional negligence shall be commenced within 3 years after the cause of action accrues. For the purposes of this section, a cause of action accrues on the date of the act or omission giving rise to the injury_ This section does not apply where the cause of action is based upon the leaving of a foreign object in the body, in which case the cause of action shall accrue when the plaintiff discovers or reasonably should discover the harm. For purposes of this section, the term “foreign object” does not include a chemical compound, prosthetic aid or object intentionally implanted or permitted to remain in the patient’s body as part of the health care or professional services.

24 M.R.S.A. § 2902.

Musk argues that the plain language betrays no clear intent to preclude any use of the discovery rule in non-foreign-object cases; the statute provides an exception to the non-availability rule but does not explicitly rule out other exceptions. However, a well-settled rule of statutory interpretation states that express mention of one concept implies the exclusion of others not listed.

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Bluebook (online)
647 A.2d 1198, 1994 Me. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musk-v-nelson-me-1994.