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MUSK v. NELSON9/29/1994
Gail G. Musk appeals from the judgment entered in the Superior Court (Lincoln County, Perkins, A.R.J.) granting Nancy Nelson's
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"). 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.
The 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
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 b
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