Smith v. Hawthorne

ALEXANDER, J.,

with whom DANA, J., joins, concurring.

[¶ 26] Throughout the course of this case, the parties, the Superior Court, and five justices of this Court, after thorough consideration, interpret subsections 2857(1)(B) and (C) to allow only certain unanimous panel findings to go to the jury. As interpreted and as applied, we have joined the Court’s opinion that these subsections violate Smith’s constitutional right to a fair jury trial.

[¶27] We write separately because, in our view, these subsections may be interpreted to avoid this result.

[¶28] Before addressing any constitutional argument in our role as an appellate court, we should first examine a statute to determine if it can be construed to be consistent with our Constitution. Rideout v. Riendeau, 2000 ME 198, ¶ 14 , 761 A.2d 291, 297-98 (plurality). As the plurality observed in Rideout :

Because we must assume that the Legislature acted in accord with due process requirements, if we can reasonably interpret a statute as satisfying those constitutional requirements, we must read it in such a way, notwithstanding other possible unconstitutional interpretations of the same statute.

Id.

[¶ 29] Accordingly, we have a duty to construe a statute to preserve its constitutionality in a manner that is compatible with the Legislature’s intent if such a construction is “at all possible.” Town of Baldwin v. Carter, 2002 ME 52, ¶ 9 , 794 A.2d 62, 66-67 . Thus, we must seek a reasonable interpretation of section 2857(1) that will satisfy constitutional requirements. Irish v. Gimbel, 1997 ME 50, ¶ 6 , 691 A.2d 664, 669 ; State v. Cropley, 544 A.2d 302, 304 (Me.1988); Bossie v. State, 488 A.2d 477, 479 (Me.1985).

[¶ 30] The questions of admissibility of unanimous findings, within a panel report, that favor different parties and the capacity of each party to offer fewer than all of the unanimous findings into evidence are not explicitly addressed on the face of the statute. Thus, on this point, the statute is ambiguous. When a statute is ambiguous, we must look beyond the words of the statute to construe its meaning, considering the statute’s history, underlying policy, our rules of construction, and other extrinsic factors to ascertain legislative intent. Darling’s v. Ford Motor Co., 2003 ME 21 , ¶ 7, 825 A.2d 344, 346 ; In re Wage Payment Litig., 2000 ME 162, ¶4 , 759 A.2d 217, 221 ; Arsenault v. Crossman, 1997 ME 92, ¶ 7 , 696 A.2d 418, 421 .

[¶ 31] Section 2857(1), allowing parties to introduce before the jury unanimous findings of the prelitigation screening panel, was an essential element of the Legislature’s comprehensive process for prelitigation panel screening of health professional malpractice cases. It was intended to induce parties to participate, in good faith, in the prelitigation screening process and to support the requirement that all other aspects of the prelitigation screening process be confidential. See 24 M.R.S. § 2857(2) (2005).

[¶ 32] Paragraphs B and C of section 2857(1), regarding admissibility of unanimous findings of prelitigation screening panels, read as follows:

*441 B. If the panel findings as to both the questions under section 2855, subsection 1, paragraphs A and B are unanimous and unfavorable to the person accused of professional negligence, the findings are admissible in any subsequent court action for professional negligence against that person by the claimant based on the same set of facts upon which the notice of claim was filed.

C. If the panel findings as to any question under section 2855 are unanimous and unfavorable to the claimant, the findings are admissible in any subsequent court action for professional negligence against the person accused of professional negligence by the claimant based on the same set of facts upon which the notice of claim was filed.

[¶ 83] Paragraph B states that if panel findings as to both negligence and causation are unanimous and unfavorable to the defendant “the findings” are admissible in any subsequent malpractice trial. Paragraph C states that if the panel answers any question unanimously and unfavorably to the plaintiff, “the findings” are admissible in any subsequent malpractice trial. Paragraphs B and C each speak in terms of the admissibility of “the findings.” The question is what are “the findings”? This statute can be reasonably construed to require submission to the jury of all unanimous findings, even when all “the findings” do not support the same party. This assures that the jury receives the most accurate information about the panel’s unanimous findings that we stated was important in Irish I, 1997 ME 50, ¶ 12 , 691 A.2d at 671 . As the Court’s opinion notes, supra ¶21, this approach to admission of panel findings is consistent with the practice in other states with medical malpractice screening panels.

[¶ 34] Paragraphs B and C are not dupli-cative if construed to allow admission of all unanimous findings. Paragraph B addresses the situation when the first two findings are unanimous and favorable to the claimant. Paragraph C addresses the situation when one or more findings are unanimous and favorable to a defendant. In each case, whether referencing two answers in B or, perhaps, just one answer in C, the statute speaks in the plural of “the findings” being admissible. This interpretation is consistent with the legislative plan favoring admissibility of unanimous findings and indicating two distinct situations where unanimous findings may be offered. Section 2857(1), reasonably interpreted, indicates that all unanimous findings are to be admitted in these situations.

[¶ 35] In our view, at least on remand, if either party wishes to offer the answers to one or more of the unanimous findings of the panel, either all should be admitted or none should be admitted.