# Givertz v. Maine Medical Center

> Supreme Judicial Court of Maine · April 26, 1983 · 459 A.2d 548

URL: https://www.frixlaw.com/law-library/cases/9636359

## Case

- **Full name:** Phyllis G. GIVERTZ, Adm’x, Estate of Patricia Carlson v. MAINE MEDICAL CENTER, Et Als
- **Court:** Supreme Judicial Court of Maine
- **Decided:** April 26, 1983
- **Citations:** 459 A.2d 548; 1983 Me. LEXIS 691
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** McKusick, Nichols, Roberts, Carter, Violette, Wathen, Dufresne
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9636359

## How later opinions describe it (automated extraction)

- holding plaintiff's failure to give statutorily required notice of claim within two-year period of limitations properly subjected malpractice suit to dismissal; statute did not permit "substantial compliance"

## Opinion text

ROBERTS, J.,
with whom CARTER, J., joins, dissenting.
I respectfully dissent. I cannot agree with the Court’s interpretation of our prior decisions. Nor can I agree with the Court’s view that the Legislature intended to merge the notice requirement of the Maine Health Security Act, 24 M.R.S.A. § 2903 (Supp.1982-1983), into any applicable statutes of limitations. See 459 A.2d at 551.
The Court suggests that because of the reference to tolling the limitations statute, section 2903 mandates the giving of notice within the two-year period of limitations. Id. We stated in Michaud v. Northern Maine Medical Center, 436 A.2d 398, 401-02 (Me.1981), however, that so long as the action was commenced under M.R. Civ.P. 3 within two years, the question merely becomes “what is the appropriate sanction for ... failing to meet the specific notice requirements of section 2903.”
I am also unpersuaded by the concurring opinion which would insist upon dismissal of any action filed in violation of section 2903, without considering whether such a dismissal furthers the purpose of the statute. The purpose of the section 2903 notice requirement is unlike that of the section 2902 period of limitations. See Dougherty v. Oliviero, 427 A.2d 487, 489-90 (Me.1981). Contra Michaud, 436 A.2d at 403 (Wathen, J., dissenting). Moreover, the statute itself *557 does not expressly require dismissal as a sanction for its violation. Dougherty, 427 A.2d at 490 . In fact, in similar contexts, we have deemed dismissal inappropriate where that sanction does not serve the legitimate purpose behind a technical procedural requirement. See, e.g., Dunton v. Eastern Fine Paper Co., 423 A.2d 512, 518 (Me.1980) (workers’ compensation notice requirement); Martel v. Inhabitants of the Town of Old Orchard Beach, 404 A.2d 994 (Me. 1979) (dismissal vacated despite clear statutory language authorizing dismissal for improper venue); see also Erickson v. State, 444 A.2d 345, 351 (Me.1982) (Roberts, J„ dissenting) (notice provision of the Maine Tort Claims Act, 14 M.R.S.A. § 8107).
In Dougherty , we held that “failure to comply with section 2903 is an affirmative defense.... ” 427 A.2d .at 489. Consequently, we said that the notice requirement “has no relationship to the court’s jurisdiction or to the merits of the plaintiffs’cause of action....” Id. Finally, we instructed that the Superior Court should determine the proper sanction for noncompliance with section 2903 when proven by a defendant. Id. Following our reasoning in Dougherty , in order to justify the dismissal of a complaint (especially after expiration of the statute of limitations), I would require that the defense establish prejudice which no other sanction could cure.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636359. Public record. Not legal advice.