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Garland v. Sherwin8/8/2002
Reporter of Decisions
Argued: May 9, 2002
Lonnie Garland appeals from a summary judgment entered in Superior Court (Penobscot County, Mead, J.) in favor of Dr. Joshua Sherwin. Because we agree with the court that Garland's medical malpractice action is barred by the statute of limitations, we affirm the judgment.
On June 18, 1996, an x-ray was performed on Garland at Eastern Maine Medical Center and read by Sherwin. On September 25, 1996, an MRI was performed on Garland at Magnetic Resonance Imaging Associates and read by Dr. Mary Warner. Sherwin and Warner failed to diagnose a cancerous tumor that was discovered in 1997.
Garland filed the complaint in this medical malpractice action against Sherwin on April 11, 2001. Pursuant to the requirements of the statutory scheme for mandatory prelitigation screening of medical malpractice actions, 24 M.R.S.A. §§ 2851-2859 (2000), Garland had filed a notice of claim against Warner and MRI Associates on August 28, 1998. Id. §§ 2853, 2903. He filed an amended notice of claim on March 29, 1999, that listed claims against Sherwin and EMMC. The malpractice screening panel filed its findings on December 4, 2000.
Upon the filing of Garland's complaint, Sherwin moved for summary judgment on the ground that the action was not brought within the applicable period of limitations. There is no dispute that as to Sherwin the three-year statute of limitations for medical malpractice, id. § 2902, began running when Sherwin read Garland's x-ray on June 18, 1996. Pursuant to 24 M.R.S.A. § 2859, the period of limitations is tolled from the date of the filing of a notice of claim until thirty days after a claimant receives notice of the prelitigation screening panel's findings. Thus, as to Garland's claim against Sherwin, the period of tolling ended on January 5, 2001, which was thirty days after Garland received notice of the screening panel's findings. The statute of limitations began running again on that date, and ninety-six days elapsed before his complaint against Sherwin was filed on April 11.
The issue on appeal is which notice of claim began the tolling. If it was the amended notice dated March 29, 1999, the first to mention Sherwin, then the complaint was fifteen days late because only eighty-one days remained in the limitations period after January 5. However, if it was the original notice of August 28, 1998, the complaint was timely because 294 days remained in the limitations period.
Garland argues that his original notice of claim filed on August 28, 1998, although it was not served on Sherwin and did not mention him or allege any negligence connected to the June 18 x-ray, is the operative notice for purposes of the statute of limitations. He first contends that section 2859 dictates that the filing of any notice of claim tolls the statute of limitations as to all potential defendants. The statutory scheme provides no support for this contention. On the contrary, " he claimant must serve the notice of claim on the person accused of professional negligence." 24 M.R.S.A. § 2853(1)(B). The original notice of claim was addressed to Warner and MRI Associates and was never served on Sherwin. It could not qualify as the notice of claim that tolled the statute of limitations with respect to Sherwin pursuant to section 2859.
Garland also contends that 24 M.R.S.A. § 2853(6), which requires the prelitigation screening panel to hold a combined hearing for all claims arising out of the same facts, compels the first notice of claim to be the operative notice for tolling purposes. The procedural requirement of a combined prelitigation hearing, however, has no bearing on the t
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