Dorothea B. McCain v. John F. Vanadia

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 118
Docket: Pen-17-381
Argued: April 11, 2018
Decided: August 14, 2018

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
Dissent: ALEXANDER, J.



DOROTHEA B. McCAIN

v.

JOHN F. VANADIA et al.


MEAD, J.

[¶1] John F. Vanadia, D.O., Bangor Surgical Associates, P.A., and

St. Joseph Hospital appeal from an order of the Superior Court

(Penobscot County, A. Murray, J.), acting as medical malpractice screening panel

chair pursuant to 24 M.R.S. § 2852(6) (2017) and M.R. Civ. P. 80M(e), granting

Dorothea B. McCain’s motion to compel them to produce in discovery thirty

redacted, nonparty patient medical records that the court found were relevant

to McCain’s notice of claim asserting medical negligence. The appellants

contend that the court erred in ordering the records’ disclosure because they

are (1) irrelevant to McCain’s claim and (2) protected from disclosure by state
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and federal statute and by the physician-patient privilege set out in

M.R. Evid. 503.

[¶2] McCain has moved to dismiss this interlocutory appeal on two

grounds, asserting first that decisions of the Superior Court acting as panel

chair are not appealable, see Gafner v. Down E. Cmty. Hosp., 1999 ME 130, ¶ 12

735 A.2d 969; and second that dismissal is required pursuant to the final

judgment rule, see Bd. of Overseers of the Bar v. Warren, 2011 ME 124, ¶ 19,

34 A.3d 1103 (“The general rule is that discovery orders are deemed

interlocutory and therefore are reviewable only on appeal from the final

judgment.”).

[¶3] Given the unusual procedural posture presented here, we hold that

the discovery order issued during the course of the panel proceedings is now a

nullity and therefore does not govern future proceedings in this case.

Accordingly, no exception to the final judgment rule applies that would require

us to reach the merits of the parties’ arguments now, and we remand the matter

to the Superior Court.

I. BACKGROUND

[¶4] In November 2015, John Vanadia, the sole physician employed by

Bangor Surgical Associates, P.A., performed a laparoscopic cholecystectomy
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(gallbladder removal) on Dorothea McCain at St. Joseph Hospital in Bangor.

During the procedure, Vanadia cut McCain’s common bile duct after mistaking

it for her cystic duct, necessitating corrective surgery soon thereafter.

[¶5] On June 30, 2016, McCain filed a notice of claim against Vanadia and

Bangor Surgical Associates, P.A. (collectively Vanadia), alleging medical

negligence; her claim was later amended to include St. Joseph Hospital (SJH).

See 24 M.R.S. § 2853(1) (2017); M.R. Civ. P. 80M(b)(1). The Chief Justice of the

Superior Court appointed a medical malpractice screening panel chair

pursuant to 24 M.R.S. § 2852(2)(A) (2017) and M.R. Civ. P. 80M(b)(2).

[¶6] In May 2017, McCain filed a motion to compel the production in

discovery of “[t]he operative notes for each and every [laparoscopic

cholecystectomy] performed by Vanadia in 2015 with the names and any

identifying information for the individual patients redacted to preserve patient

confidentiality.” When Vanadia and SJH objected, the panel chair referred the

motion to the Superior Court. See 24 M.R.S. § 2852(6); M.R. Civ. P. 80M(e).

[¶7] Pursuant to M.R. Civ. P. 26(g), the court held a hearing and granted

the motion, ordering that Vanadia and SJH produce the operative notes for the

fifteen laparoscopic cholecystectomies performed by Vanadia preceding

McCain’s procedure and for the fifteen following her procedure. The court took
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great care to order that the records be heavily redacted to protect the identities

of the patients.

[¶8] Vanadia and SJH filed a motion to reconsider and a timely notice of

appeal; McCain then moved this Court to dismiss the appeal. The trial court

declined to act on the motion to reconsider because of the pending appeal, see

M.R. App. P. 3(b) (Tower 2016),1 and we consolidated our consideration of the

motion to dismiss with our review of the appeal’s merits.

[¶9] Inexplicably, while those matters were pending, the parties opted

to forge ahead with the panel process without the records subject to the

discovery order having been produced. The screening panel held a hearing and

entered a unanimous decision on the questions of whether Vanadia deviated

from the applicable standard of care; whether his acts or omissions were the

proximate cause of McCain’s injury; and whether, if Vanadia were found to be

negligent, any contributory negligence on the part of McCain outweighed his

negligence.2 See 24 M.R.S. § 2855(1) (2017). The issuance of findings by the

screening panel marked the conclusion of the panel’s role in McCain’s claim.

See 24 M.R.S. § 2858 (2017). On September 18, 2017, McCain filed a civil

1 The motion to reconsider and the notice of appeal were filed before the restyled Maine Rules of

Appellate Procedure took effect. M.R. App. P. 1.

2 At this stage of the case, the panel’s findings are confidential. 24 M.R.S. § 2857(1) (2017).
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complaint in the Superior Court against Bangor Surgical Associates, P.A., and

SJH, alleging medical negligence.

II. DISCUSSION

[¶10] The appeal brought by Vanadia and SJH is interlocutory, in that

McCain’s post-screening panel medical negligence claim has not yet proceeded

beyond the filing of a complaint. Therefore, we must initially determine

whether the appellants have met their burden of “demonstrating . . . that one of

the exceptions to the final judgment rule justifies our reaching the merits of the

appeal.” Taylor v. Walker, 2017 ME 218, ¶ 8, 173 A.3d 539 (alteration omitted)

(quotation marks omitted). If not, then the appeal “is not ripe for appellate

review.” Id. Vanadia and SJH assert that the death knell and collateral order

exceptions to the final judgment rule apply here. Because we conclude that the

order at issue is no longer operative, the exceptions do not apply.

[¶11] In issuing its discovery order granting McCain’s motion to compel

the production of thirty nonparty operative notes, the Superior Court acted in

a limited role in place of the screening panel chair as part of the screening panel

proceedings. Gafner, 1999 ME 130, ¶ 12, 735 A.2d 969; see 24 M.R.S. § 2852(6);

M.R. Civ. P. 80M(e). In Gafner, we held that in that circumstance

[the court’s] actions are subject to the same provisions and
remedial limitations as those of the chair. The decisions of the
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panel chair, including its discovery rulings, are not subject to
appellate review. Consequently, ordinary discovery orders
entered by the Superior Court in matters pending before the panel
are not reviewable.

1999 ME 130, ¶ 12, 735 A.2d 969 (citations omitted). However, in a footnote,

we recognized, but did not address, “the possibility that a judicial order in a

panel discovery matter related to issues such as privilege may be immediately

subject to appellate review.” Id. ¶ 12 n.4.

[¶12] Eight years later we revisited Gafner, holding that

discovery orders that are entered by the Superior Court while the
matter is pending before a prelitigation panel are not reviewable.
In Gafner, we reserved the issue as to whether the decision of a
judicial officer in a panel discovery matter relating to an issue such
as privilege might be immediately subject to appellate review. We
here answer that reserved question in part. A decision upholding
a claim of privilege or confidentiality is not subject to appellate
review.

Estate of Cox v. E. Me. Med. Ctr., 2007 ME 15, ¶ 6, 915 A.2d 418 (citation omitted).

We specifically did not answer the question that is presented in this case,

namely whether a decision on a discovery matter denying a claim of privilege

or confidentiality is subject to immediate appellate review. For the following

reasons, on the unique and very specific facts and circumstances of this case,

we decline to answer it now.
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[¶13] As noted previously, after McCain obtained the unusual discovery

order, the parties elected to proceed with the panel hearing before Vanadia and

SJH produced the records that the court had ordered to be disclosed. Indeed,

to date, we understand that no records have been disclosed. Had the parties

and the panel taken the step of scheduling the screening panel hearing for after

the receipt of the court’s discovery order and our consideration of that order,

we may well have been called upon to decide the question left unanswered in

Estate of Cox. Now, however, the case has moved from the panel phase to the

trial phase without any nonparty medical records having been produced, and

we conclude that the order has lost its vitality. In other words, in these unique

circumstances, and on this record, we conclude that the order is no longer the

“law of the case” and has become a nullity without legal force or effect. See

Chretien v. Chretien, 2017 ME 192, ¶ 6, 170 A.3d 260 (“We will decline to hear

a case that has lost its controversial vitality and is moot . . . .” (alteration

omitted) (quotation marks omitted)).

[¶14] We acknowledge that, ordinarily, the Superior Court’s discovery

order would be effective in the post-panel proceeding. As 24 M.R.S. § 2857(3)

(2017) provides, “in a subsequent Superior Court action all discovery

conducted during the prelitigation screening panel proceedings is deemed
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discovery conducted as a part of that court action.” In this case, however,

because the parties allowed the panel hearing to move forward and to a

conclusion without disclosure of the nonparty records, the records were

apparently deemed not sufficiently relevant to the plaintiff’s case in the panel

process. Moreover, the motion for reconsideration was never acted upon by

the judge or panel chair, and the assessment of the relevance of the records may

have changed as the litigation progressed. These unique circumstances lend

additional weight to our conclusion that the discovery order was rendered a

nullity upon the conclusion of the panel process. Accordingly, we determine

that any discovery request for the nonparty records at issue here, if still sought

by the plaintiff, must be presented anew to the Superior Court for an analysis

of the records’ relevance and whether any privilege protects them.

[¶15] Because the records were not provided and therefore not

presented in the panel proceeding, we need not decide, and do not decide,

whether a decision of a judge acting as panel chair that compels discovery in

the face of a claim of privilege is immediately appealable.

[¶16] Finally, because the order appealed from has become a nullity,

neither the death knell nor the collateral order exception to the final judgment

rule applies with regard to the merits of the appeal. Both exceptions require
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that the party invoking the exception demonstrate an irreparable loss of the

right claimed. See Taylor, 2017 ME 218, ¶ 8, 173 A.3d 539; In re Evelyn A.,

2017 ME 182, ¶ 14, 169 A.3d 914 (stating that the death knell exception “allows

a party to appeal an interlocutory order immediately if substantial rights of that

party will be irreparably lost if review is delayed until final judgment”

(quotation marks omitted)); Bond v. Bond, 2011 ME 105, ¶ 11, 30 A.3d 816

(stating that the collateral order exception applies when a court’s decision

“would result in irreparable loss of the rights claimed, absent immediate

review” (quotation marks omitted)). Vanadia and SJH cannot make the

required showing concerning their claim that the nonparty operative notes

must be protected from disclosure because no records were actually produced,

nor will they be without further hearing and analysis by the Superior Court.

Accordingly, there is no harm or threat of harm to an important right that would

justify our immediate review of the merits. See Taylor, 2017 ME 218, ¶ 8,

173 A.3d 539.

[¶17] We note that the dissent undertakes to address substantive issues

raised by the appellants. See Dissenting Opinion ¶¶ 21-33. Because we are

remanding this matter without reaching the merits of the appeal, we do not

endorse or reject the conclusions reached by the dissent on those issues.
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The entry is:

Remanded for further proceedings in the
Superior Court consistent with this opinion.

ALEXANDER, J., dissenting.

[¶18] I respectfully dissent.

[¶19] Medical malpractice actions are commenced by a filing of a notice

of claim in the Superior Court. 24 M.R.S. § 2853(1) (2017). Those actions have

a medical malpractice screening panel phase, 24 M.R.S. §§ 2854-2858 (2017),

but they remain actions pending before the Superior Court. Because the parties

addressed the question thoroughly with the Superior Court, and the Superior

Court entered a detailed order on the discovery issue, I would not determine

the order to have lost its vitality, notwithstanding the serious question of

relevance given that the panel proceeded without the evidence at issue. I would

reach the merits and vacate the order.

[¶20] That discovery order authorizes Dorothea McCain and her

attorneys to launch a discovery fishing expedition, reviewing the medical

records of at least thirty other innocent, unrelated individuals who have

undergone similar procedures performed by the defendants. Knowledge that

we have not addressed the merits of this order may invite others to launch
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similar fishing expeditions, hoping to bolster a client’s case by prying into the

private medical records of perhaps hundreds of innocent, unaware individuals.

[¶21] The Superior Court’s order authorizes review of records of

unnamed and unnotified patients in violation of those patients’ constitutional

rights to privacy, in violation of privileges established in our Rules of Evidence,

and in violation of numerous state and federal statutes mandating the privacy

of patient identities and the confidentiality of medical records. See infra ¶ 30.

[¶22] Vanadia, his medical practice, and the hospital where the

procedure was performed all have standing to assert the constitutional rights

to privacy, the privileges against disclosure of communications relating to

medical treatment, and the statutory rights of privacy and confidentiality on

behalf of the unidentified and otherwise defenseless patients whose records

are sought in this matter. See Field & Murray, Maine Evidence § 503.3 at 227

(6th ed. 2007).

[¶23] Turning to the merits of the appeal, we have not yet addressed the

question presented here: whether an individual claiming improper treatment

by a medical provider may obtain access to records of other patients who have

received similar treatment from that medical provider to determine if those

other patients’ records might contain information to support the plaintiff’s
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action. The implications of the Superior Court’s ruling for patients and the

medical community that serves those patients are vast.

[¶24] Even though the Superior Court’s order has become ineffective as

a result of the Court’s determination that it is a nullity, the ruling remains

unchanged. Therefore, that precedent, preliminary as it is, may serve as an

invitation for others to seek the records of other patients to see what might be

in those records to help the complainants’ cases. Sometimes the invasion of

rights of privacy and confidentiality of only a few patients may be involved,

other times, with more common procedures, hundreds of records of other

patients may be sought.

[¶25] Once the door is opened, access to other patients’ records may be

obtained by complainants unhappy with all manner of treatments including, as

a few examples, abortions, HIV infection therapies, or substance abuse

treatments.

[¶26] The plaintiff argues that the identities of the other patients would

be protected by redacting the patient information to which they may have

access. How those records would be redacted, by whom, and who would pay

the costs for recovery, review, and redaction of perhaps thousands of pages of

electronic patient records is unclear. The inquiring party likely would have to
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see the records to ensure that she gets the information that a court has ordered

that she shall have.

[¶27] As the treatment at issue necessarily would be identified in any

records reviewed and provided, the likelihood of actual confidentiality of

identification of patients, at least in smaller Maine communities where only a

few treatments may be provided per year, would be uncertain.

[¶28] The example presented by this case is particularly troubling. The

plaintiff is seeking access to the medical records of fifteen as yet unidentified

patients who received similar treatment before the plaintiff’s treatment and the

medical records of fifteen as yet unidentified patients who received similar

treatment after the plaintiff’s treatment. Review of the limited information in

the file suggests that potentially identifying information related to each

patient’s physical characteristics and health conditions may be important in

determining if other patients’ records are relevant to the claim of negligence for

identifying and cutting the wrong duct.

[¶29] The records that the trial court has ordered to be disclosed

regarding patients who received treatments after the plaintiff’s treatment

might only be relevant on a narrow credibility question. That question would

be whether, after the plaintiff’s treatment, the medical provider engaged in
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subsequent remedial measures, see M.R. Evid. 407,3 to create the medical

records—not the treatments but the medical records—to reflect differently

how events during the procedure were reported.

[¶30] There are several statutes and rules that the trial court’s mandate

to disclose other patients’ records may violate:

• Title 42 U.S.C.S. § 1320d-6 (LEXIS through Pub. L. No. 115-185) of the
Health Insurance Portability and Accountability Act of 1996 (HIPAA), and
implementing regulations published at 45 C.F.R. pts. 160 and 164 (2017),
paint with a very broad brush, mandating privacy of patient-specific
medical information and confidentiality of medical records. The statute
and implementing regulations are voluminous and complicated. No
exception to the mandated privacy and confidentiality is apparent that
would authorize an individual dissatisfied with medical treatment to
discover the redacted or unredacted medical records of others who have
received similar treatments to determine if those records might include
some information to support a negligence claim.

• The Maine statute entitled “[c]onfidentiality of health care information,”
22 M.R.S. § 1711-C (2017), provides similar protection for patient privacy
and the confidentiality of medical records. “An individual’s health care
information is confidential and may not be disclosed other than to the
individual by the health care practitioner or facility except as provided in
subsection 3, 3-A, 3-B, 6 or 11.” Id. § 1711-C(2). None of the listed
subsections authorize the court mandated access to individuals’ medical
records at issue here.

• Other state statutes limiting access to medical records regarding physical
health conditions by persons other than the person being treated and
their treatment providers include 5 M.R.S. §§ 200-E, 4572(2) and 4573(2)

3 Pursuant to M.R. Evid. 407, evidence of subsequent remedial measures is inadmissible to prove

negligence and culpability. Neither the trial court nor the plaintiff have addressed in any detail how
the ordered discovery of other patients’ records created after the plaintiff’s treatment would lead to
the development of admissible evidence.
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(2017). These statutes may apply to protect the medical records of one
or more of the individuals whose medical records the plaintiff seeks in
this case. Many other statutes limiting disclosure of records relating to
mental health conditions may also apply to some medical records the
plaintiff seeks. See, e.g., 1 M.R.S. § 402 (2017); 34-A M.R.S. § 1216 (2017);
34-B M.R.S. § 1207 (2017).

• Maine Rule of Evidence 503 gives individual patients a privilege to refuse
to disclose confidential communications made for the purpose of
diagnosing or treating medical conditions. Such communications are
indicated in McCain’s medical record, which she asserts are similar to the
records of other patients that she wants to access.

[¶31] The briefs of the parties cite to many opinions from other

jurisdictions that reach differing results on whether plaintiffs in medical

negligence actions may discover the medical records of other patients who have

had similar procedures or have been treated by the same medical professional

or facility. Some of those opinions indicate that if the medical records sought

are “redacted”—whatever that means—then the requested discovery of other

patients’ medical records will be allowed. See, e.g., Staley v. Jolles,

230 P.3d 1007, 1013 (Utah 2010). Few of those opinions indicate how, or by

whom, or at what cost, record search, review, and redaction will be

accomplished. And few of those opinions seem to consider how easily a person

may be identified by descriptive information in a record, even if the specific

identifying information has been removed.
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[¶32] The contrary opinions of other jurisdictions refusing to allow

discovery of other patients’ records to see if they might contain evidence that

might support a particular plaintiff’s claim have the better argument. See, e.g.,

Roe v. Planned Parenthood Sw. Ohio Region, 912 N.E.2d 61, 71 (Ohio 2009)

(“Redaction of personal information . . . does not divest the privileged status of

confidential records. Redaction is merely a tool that a court may use to

safeguard the personal, identifying information within confidential records

that have become subject to disclosure either by waiver or by an exception.”).

[¶33] Open-ended fishing expedition discovery, invading other patients’

privacy and authorizing review of confidential medical records to see if those

records contain information that might support an individual plaintiff’s medical

negligence claim, violates M.R. Evid. 503 and violates federal and state statutes

mandating patient privacy and the confidentiality of patients’ medical records.

We should reach the merits of this appeal applying exceptions to the final

judgment rule. Reaching the merits, for the reasons discussed above, we should

vacate the Superior Court’s discovery order so that it cannot be enforced in

pretrial discovery to mandate disclosure of other patients’ confidential medical

records potentially leading to use of those records in a public trial.

17

James F. Martemucci, Esq., and Robert P. Hayes, Esq. (orally), Germani
Martemucci & Hill, Portland, for appellant John F. Vanadia

Mark G. Lavoie, Esq., and Jennifer A.W. Rush, Esq. (orally), Norman, Hanson &
DeTroy, LLC, Portland, for appellant St. Joseph Hospital

Benjamin R. Gideon, Esq., and Taylor A. Asen, Esq. (orally), Berman & Simmons,
P.A., Lewiston, for appellee Dorothea B. McCain

Karen Frink Wolf, Esq., and Rachel M. Wertheimer, Esq., Verrill Dana LLP,
Portland for amici curiae Maine Hospital Association and Maine Medical
Association

Penobscot County Superior Court docket number CV-2016-117
FOR CLERK REFERENCE ONLY