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Mason v. Torrey6/19/1998
Reporter of Decisions
Argued: October 6, 1997
Marilyn Mason, individually and as personal representative of the estate of Julia Ayer, and Charles Ayer appeal from the judgment of the Superior Court (Sagadahoc, Cole, J.) denying their claim for professional negligence against Susan Torrey, M.D., Mid Coast Hospital (MCH), and Emergency Medical Associates (EMA). Mason contends that the court erred by not providing the jurors with the instructions we articulated in Irish v. Gimbel, 1997 ME 50, 691 A.2d 664, by allowing Torrey to display an enlargement of the screening panel's findings, and by labeling Torrey and two other doctors who testified on her behalf as expert witnesses. We affirm the judgment.
Julia Ayer died from a ruptured aortic aneurism on July 13, 1990, after being sent home following what Mason alleges was a misdiagnosis by Torrey. On May 31, 1995, Mason filed a claim in the Superior Court alleging professional negligence by Torrey, EMA, and MCH. Pursuant to 24 M.R.S.A. Section 2854 (1990) Mason presented the claim to a prelitigation screening panel, the members of which determined unanimously that Torrey, MCH and EMA were not negligent in Ayer's treatment.
Despite this finding Mason proceeded to file suit in the Superior Court against those parties for professional negligence. An enlargement of the panel's findings was used during trial and the actual findings were entered in evidence. Three expert witnesses testified on behalf of Torrey, including Torrey herself, Pamela Bensen, M.D. and Phelps Carter, M.D. Judgment was entered on the jury verdict in favor of Torrey, MCH and EMA.
Mason's primary contention is that the court erred by failing to give to the jury the instructions we articulated in Irish. In Irish we reviewed the constitutionality of 24 M.R.S.A. Section 2857(1)(B) (1990), which permits admission without explanation of unanimous panel findings in a subsequent court action for professional negligence. We held that in order to guarantee the right to a jury determination promised in Article I, section 20 of the Maine Constitution certain neutral information must be provided to the jury when panel findings are admitted. Irish, 1997 ME 50, 12, 691 A.2d at 671. We construed "the statute to permit the disclosure of information about the prelitigation screening process sufficient to provide a rational basis for evaluation of the findings and to ensure the jury's role as the final arbiter of the facts." Id. at 13, 691 A.2d at 671.
Mason did not object to the court's preliminary comments or final instructions to the jury concerning the prelitigation screening process. Pursuant to M.R. Civ. P. 51(b), " o party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection." Despite this rule, we have employed an obvious error standard in some civil settings to vacate a judgment when the appealing party failed to object at trial "only if the error was of the exceptional kind that seriously affected the fairness, integrity, or public reputation of the proceedings." Harris v. PT Petro Corp., 650 A.2d 1346, 1349 (Me. 1994) (citation omitted).
Mason argues that the claimed error must constitute obvious error because it is constitutionally based. In most cases even constitutional error must be preserved for appellate review and unpreserved constitutional error must be subjected to the same obvious error review as we apply to all unpreserved error. See State v. Eastman, 1997 ME 39, 14, 691 A.2d 179, 183-84; State v. Jones, 580
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