The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 77
Docket: And-13-320
Argued: April 7, 2014
Decided: June 10, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
WENDELL STROUT JR.
v.
CENTRAL MAINE MEDICAL CENTER
SILVER, J.
[¶1] Central Maine Medical Center (CMMC) appeals from a judgment on a
jury verdict entered in the Superior Court (Androscoggin County, Clifford, J.) in
favor of Wendell Strout Jr., in his medical malpractice action against CMMC.
CMMC argues that the court erred by admitting in evidence one sentence of a
letter from CMMC’s president to Strout because (1) the entire letter was
inadmissible pursuant to 24 M.R.S. § 2907(2) (2013), (2) the statement was part of
an offer to compromise, and (3) the statement’s probative value was substantially
outweighed by the danger of unfair prejudice. We affirm the judgment.
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I. BACKGROUND
[¶2] The following facts are taken from witness depositions included in the
record, 1 and we view them in the light most favorable to the jury’s verdict.
See Hickson v. Vescom Corp., 2014 ME 27, ¶ 2, 87 A.3d 704. In April 2009,
Strout sought treatment for abdominal pain at the CMMC emergency room.
A CAT scan revealed a large lesion on Strout’s liver. Dr. Ian Reight, a surgeon at
CMMC, evaluated the CAT scan and determined that Strout was most likely
suffering from a cancer of hepatic, biliary, or pancreatic origin.
[¶3] Several days later, Strout, accompanied by his wife, went to
Dr. Reight’s office for a follow-up visit. Dr. Reight telephoned the pathologist
who was in charge of testing a tissue sample taken from the lesion. The
pathologist informed Dr. Reight that he believed the lesion to be of hepatic or
pancreatic origin and that he was sending it for additional testing; however, he also
informed Dr. Reight that he needed more tissue to complete the assessment.
[¶4] Dr. Reight then told Strout that, although he was still waiting for the
final pathology results, he believed that Strout may be suffering from either hepatic
or pancreatic cancer. Dr. Reight informed Strout that, if this were the case, the
cancer would be inoperable due to the size and location of the lesion. Dr. Reight
1
Because this appeal concerns only the narrow issue of the admissibility of a portion of the letter,
CMMC did not provide a trial transcript as part of the record on appeal. But see Greaton v. Greaton,
2012 ME 17, ¶ 6, 36 A.3d 913 (“Merely providing documents that were admitted at trial will rarely
suffice to establish an adequate record for our review.”).
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further informed Strout that even with chemotherapy, the average life expectancy
of patients with each of these cancers was less than one year, and that Strout’s life
may be measured in months.
[¶5] Several weeks later, the test of Strout’s tissue samples revealed that he
did not suffer from hepatic or pancreatic cancer, but that he had B-cell
non-Hodgkins lymphoma, which has a five-year survival rate of eighty-five to
ninety percent. Strout sent a complaint about Dr. Reight to Laird Covey, CMMC’s
president, in October 2009.
[¶6] Covey had overall responsibility for all aspects of operations at
CMMC, including handling patient complaints, during this time. Covey and his
staff followed CMMC’s procedure for investigating complaints, and once that
review was completed Covey signed a letter to Strout2 addressing the complaint
about Dr. Reight. The letter, dated December 28, 2009, stated, in relevant part:
The President of the Central Maine Medical Group, Dr. Focht, was
involved in this review as he bears responsibility for the care provided
by all the doctors who are a part of the Central Maine Medical Family.
This has been addressed directly with Dr. Reight by Dr. Focht and has
also been brought to the attention of the Medical Director for our
surgical practice, Dr. Gammaitoni. Dr. [Reight] was saddened to
learn that this was so difficult for you and your family. As he shared
his clinical thinking at the time it was very apparent to Dr. Focht that
Dr. [Reight] truly did feel that you were dealing with a very
aggressive Stage 4 cancer with a very low survival rate. He in no way
wanted to harm either you or your wife but wanted you to have a full
2
The letter was drafted by one of Covey’s staff members.
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understanding of what he thought he would be helping you to deal
with. The level of his concern can be seen in the fact that he shared
his personal cell phone number with you. That being said, he realizes
now that prior to sharing his clinical impressions with you, he needed
to wait for the results of the biopsy to confirm what the cancer was.
Dr. [Reight] is a very dedicated, caring provider; one of the ways to
learn and grow as care providers is to have feedback, both positive
and negative from the patients we serve. I know that he will also be
sharing the wisdom he has gained from this experience with his
colleagues in the practice.
I have had Ms. Maurer work with Patient Financial Services to
identify any outstanding balances related to care provided by Dr.
[Reight] and have authorized that these balances as well as the
balance for Dr. Bisbal’s care be written off as a gesture of
acknowledgement for the concern you brought to our attention.
[¶7] Strout filed a notice of claim against Dr. Reight in February 2011. The
parties agreed to waive the prelitigation panel hearing, and in March 2012 Strout
filed a complaint naming Dr. Reight as the defendant and seeking damages for
emotional distress, lost income, and loss of enjoyment of life. By agreement of the
parties, CMMC replaced Dr. Reight as the only named defendant.
[¶8] CMMC moved in limine to exclude from evidence Covey’s letter to
Strout, arguing that the entire letter was an expression of sympathy or benevolence,
which must be excluded pursuant to 24 M.R.S. § 2907(2). CMMC also argued that
the letter was inadmissible pursuant to M.R. Evid. 408(a) because it constituted an
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offer to compromise, and that it should be excluded pursuant to M.R. Evid. 403.3
At trial, the court admitted in evidence a redacted version of the letter. The body
of the redacted version of the letter read, in its entirety: “That being said, he
[Dr. Reight] realizes now that prior to sharing his clinical impressions with you, he
needed to wait for the results of the biopsy to confirm what the cancer was.”
[¶9] Following the trial, the jury returned a $200,000 verdict in Strout’s
favor. The court entered judgment on the verdict, and CMMC filed this appeal.
II. DISCUSSION
A. The “Apology Statute”
[¶10] “The interpretation of a statute is a question of law, which we review
de novo.” Jones v. Cost Mgmt., Inc., 2014 ME 41, ¶ 12, 88 A.3d 147 (quotation
marks omitted). “We will construe a statute based on its plain meaning in the
context of the statutory scheme, and only if the statute is ambiguous will we look
to extrinsic indicia of legislative intent such as relevant legislative history.” Id.
(quotation marks omitted). “Statutes are ambiguous only if reasonably susceptible
to different interpretations. . . .” Town of China v. Althenn, 2013 ME 107, ¶ 6,
82 A.3d 835.
3
Additionally, CMMC argued that the letter should be excluded pursuant to M.R. Evid. 409, which
addresses payment of medical expenses. CMMC has not raised this argument on appeal.
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[¶11] Title 24 M.R.S. § 2907(2) provides, in relevant part:
In any civil action for professional negligence . . . any
statement, affirmation, gesture or conduct expressing apology,
sympathy, commiseration, condolence, compassion or a general sense
of benevolence that is made by a health care practitioner or health care
provider or an employee of a health care practitioner or health care
provider to the alleged victim, a relative of the alleged victim or a
representative of the alleged victim and that relates to the discomfort,
pain, suffering, injury or death of the alleged victim as the result of
the unanticipated outcome is inadmissible as evidence of an admission
of liability or as evidence of an admission against interest. Nothing in
this section prohibits the admissibility of a statement of fault.
[¶12] CMMC asserts that important policy considerations underlie Maine’s
apology statute and similar statutes in other jurisdictions, and that these policy
considerations justify characterizing the statement contained in Covey’s letter as a
statement of sympathy or benevolence rather than as an admission of fault.
However, the statute, by its plain language, makes a distinction between statements
of fault and expressions of apology or benevolence. Nothing in the language of the
statute suggests that statements of fault are inadmissible if they are accompanied
by expressions of apology or benevolence; on the contrary, it explicitly provides
that “[n]othing in this section prohibits the admissibility of a statement of fault.”
Id. Although the Legislature could have decided otherwise, it was clear in its
policy decision: the placement of an admission of fault in an apology letter does
not prevent that admission from being presented to the jury. Because the statutory
language is not ambiguous, we need not examine the legislative history to aid us in
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interpreting the statute. See Jones, 2014 ME 41, ¶ 12, 88 A.3d 147. Instead, we
give the language of the statute its plain meaning, see id., and conclude that
statements of fault are admissible, even when coupled with other statements that
may be inadmissible. The court committed no error by admitting the portion of the
letter that contained an admission of fault.
B. Offer to Compromise
[¶13] CMMC argues that, because part of the letter included a reference to
the hospital “writing off” a portion of Strout’s outstanding balance, the letter
constituted an offer to compromise.
[¶14] M.R. Evid. 408(a) provides, in relevant part, “Evidence of furnishing
or offering or promising to furnish, or accepting or offering or promising to accept,
a valuable consideration in compromise or attempting to compromise a claim is not
admissible to prove liability for, invalidity of, or amount of the claim or any other
claim.” “The determination of whether the statement was a part of compromise
negotiations is exclusively for the court under Rule 104.” Greenstreet v. Brown,
623 A.2d 1270, 1272 (Me. 1993) (quotation marks omitted). Although we
liberally construe the phrase “compromise negotiations,” “[n]either an offer to
compromise nor compromise negotiations may take place . . . in the absence of a
dispute.” Id. Where there is “no evidence that a dispute existed about the validity
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of a claim or the amount claimed at the time of [the] admission, the trial court
properly admit[s the] statement in evidence.” Id.
[¶15] Covey sent the letter to Strout in December 2009, long before Strout
filed his notice of claim against CMMC in February 2011. Because there is no
evidence of any disputed claim in existence at the time of the admission, the court
properly concluded that the statements contained in the letter were not made as part
of a settlement negotiation or mediation. See id.
C. Unfair Prejudice
[¶16] Finally, CMMC argues that permitting the jury to see one sentence of
the letter out of context resulted in unfair prejudice and was misleading. We
review a court’s decision whether to admit evidence pursuant to Rule 403 “to
determine if it exceeds the bounds of the court’s discretion.” State v. Lipham,
2006 ME 137, ¶ 9, 910 A.2d 388 (quotation marks omitted). However, “in an
appeal without a transcript, we will assume that the record supports the trial court’s
. . . discretionary rulings on evidence, procedure, and remedies made during the
course of the proceeding.” Clark v. Heald, 2009 ME 111, ¶ 2, 983 A.2d 406; see
also Springer v. Springer, 2009 ME 118, ¶ 2, 984 A.2d 828 (“When a party
challenges a court’s . . . exercise of discretion and a recording of the proceeding
exists, an adequate appellate record must include a transcript of testimony taken at
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the relevant proceeding or a [trial-court-approved] statement of the case agreed
upon by the parties.”); M.R. App. P. 5(b)(2).
[¶17] Here, CMMC raised its objections to the admission of the letter
during a pre-trial conference in chambers. Although CMMC has provided us with
a transcript of that discussion, it has not provided us with a transcript of the trial.
Accordingly, we are unable to assess the extent to which the letter may have been
used to improperly influence the jury, if at all.
The entry is:
Judgment affirmed.
On the briefs:
Christopher D. Nyhan, Esq., and Elizabeth A. Campbell, Esq., Preti
Flaherty, LLP, Portland, for appellant Central Maine Medical Center
Scott J. Lynch, Esq., Hornblower, Lynch, Rabasco & Van Dyke, P.A.,
Lewiston, for appellee Wendell Strout, Jr.
At oral argument:
Christopher D. Nyhan, Esq., for appellant Central Maine Medical Center
Scott J. Lynch, Esq., for appellee Wendell Stout, Jr.
Androscoggin County Superior Court docket number CV-2011-22
FOR CLERK REFERENCE ONLY