Dickey v. Vermette , 2008 Me. LEXIS 183 ( 2008 )

GORMAN, J.

[¶ 1] Maetta and Todd Dickey appeal from a judgment by the Superior Court (Somerset County, Jabar, J.) granting Gerald E. Vermette’s motion for partial summary judgment on the Dickeys’ medical malpractice claims. The Dickeys argue that the Superior Court erred when it found that the continuing course of treatment doctrine is inconsistent with, and should not be used to interpret, the statute of limitations provision in the Maine Health Security Act, 24 M.R.S. § 2902 (2007). The Maine Trial Lawyers Association (MTLA) filed an amicus brief and presented oral argument urging us to adopt a different cause of action called the continuing negligent treatment doctrine. We affirm the Superior Court’s judgment and do not reach the issue raised by the MTLA.

[¶ 2] From 2000 to 2005, Maetta Dickey was a regular patient of Gerald E. Vermette, D.D.S. In March 2000, a dental hygienist at the practice noticed a dark spot on an x-ray taken of Dickey’s teeth. The hygienist noted that the spot was odd but did not express any serious concerns to Dickey. Dickey continued to visit Ver-mette’s office every three to five months for routine appointments. During these subsequent visits, the same hygienist showed the spot to Dr. Robert E. Clukey, Jr., D.D.S., who replied that the office would “keep an eye on it.”¹ In March 2005, a second x-ray taken of Dickey’s mouth showed that the spot had grown. Vermette viewed the 2000 and 2005 x-rays at that time and referred Dickey to an oral surgeon, who diagnosed her with oral cancer. Dickey underwent extensive surgery to remove the tumor, surrounding tissue, and part of her jawbone, and she has undergone continuing reconstructive surgery.

[¶ 8] Dickey and her husband filed a notice of claim against Vermette on February 28, 2006, with the Superior Court. See 24 M.R.S. § 2853 (2007). They alleged medical or professional negligence and loss of consortium. Vermette requested and received permission from a prelitigation screening panel to move for partial summary judgment in Superior Court pursuant to M.R. Civ. P. 56. He argued that no genuine issue of material fact existed as to any claims based on acts or omissions occurring before February 23, 2003, because such claims were barred by section 2902’s three-year statute of limitations.

[¶ 4] The Dickeys argued that the court should apply the continuing course of treatment doctrine to effectively toll the statute of limitations until after Dickey’s relationship with Vermette ended in 2005. The Superior Court ruled in favor of Ver-mette, declining to recognize the continuing course of treatment doctrine because it was inconsistent with section 2902. Although the court noted in its judgment that the Dickeys were not precluded from bringing claims for acts or omissions that occurred after February 23, 2003, the Dickeys did not pursue such claims. Instead, in order to immediately appeal the partial summary judgment and give this Court an opportunity to consider the applicability of the continuing treatment doctrine, the Dickeys stipulated that no act or omission occurring after February 23, 2003, was a proximate cause of their injuries.

[¶ 5] This case requires us to interpret section 2902. Statutory interpretation is a question of law, which we review de novo. State v. Thongsavanh, 2007 ME 20, ¶ 27, 915 A.2d 421, 427. Our primary purpose in interpreting a statute “is to give effect to the intent of the Legislature.” Arsenault v. Sec’y of State, 2006 ME 111, ¶ 11, 905 A.2d 285, 287-88. We begin by looking at the plain meaning of the statute, and, if there is no ambiguity, we do not apply rules of construction or examine legislative history. Ashe v. Enter. Rent-A-Car, 2003 ME 147, ¶7, 838 A.2d 1157, 1159.

[¶ 6] Section 2902 provides, in relevant part:

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 have discovered the harm.

24 M.R.S. § 2902.

[¶ 7] In setting a three-year period of limitations, declaring that the cause of action “accrues on the date of the act or omission giving rise to the injury” and carving out a specific exception for foreign objects, the Legislature effectively declined to adopt the continuing course of treatment doctrine. By allowing the Dickeys to bring claims for acts or omissions that occurred before February 23, 2003, simply because Maetta Dickey did not end her relationship with Vermette until March 2005, we would be imposing a judicially-created exception that is contrary to the plain meaning of section 2902. We cannot do that. See Dasha v. Maine Med. Ctr., 665 A.2d 993, 996 (Me.1995) (stating that the Legislature has outlined the contours of the statute of limitations in section 2902 and has divested this Court of its responsibility to define when a medical malpractice cause of action accrues).

[¶ 8] Therefore, we agree with the Superior Court that the statute of limitations in section 2902 bars the Dickeys’ claims arising from acts or omissions that occurred before February 23, 2003, and affirm the judgment granting partial summary judgment to Vermette. See M.R. Civ. P. 56(c).

[¶ 9] Because the Dickeys stipulated that no act or omission occurring after that date was a proximate cause of their injuries, we decline to address MTLA’s argument to adopt the distinguishable “continuing negligent treatment” doctrine. Under the “continuing negligent treatment” doctrine, the limitations period would begin to run for all claims on the last act of negligence, as long as that act occurred within three years before the legal action was initiated. Given the Dickeys’ stipulation, however, any discussion about this doctrine, including whether it is consistent with section 2902, is irrelevant and premature.²

The entry is:

Judgment affirmed.

1 . The Dickeys initially named Drs. Clukey and Vermette as defendants, but they dismissed the claims against Dr. Clukey on August 14, 2007.

2 . Justice Silver’s dissent lists two reasons why the stipulation does not bar our consideration of the continuing negligent treatment doctrine. First, it suggests that because the Dickeys stipulated only that no acts after February 23, 2003, were a proximate cause of injury, this Court can still consider the continuing negligent treatment doctrine because the Dickeys need only prove the four elements of negligence — duty, breach, proximate causation, and harm — for the entire continuum of treatment. We disagree. Every claim of negligence requires proof of the four elements. The continuing negligent treatment doctrine requires the last act of negligence to fall within the statute of limitations, and the Dickeys cannot meet this requirement because the stipulation precludes them from introducing any evidence on causation as to acts and omissions occurring after February 23, 2003. Second, the dissent incorrectly interprets the Dickeys' stipulation as conditional. However, the language of the joint stipulation, signed by both parties and accepted by the court, does not include a condition that the stipulation was contingent on anything, including our willingness to consider the continuing source of treatment doctrine.