upholding three-year medical-malpractice statute of repose against open- courts challenge, finding that “although we recognize that the three-year period of repose may cause some hardship for the [plaintiffs], that hardship was contemplated by the Legislature when it made its policy choice”
How later courts described this case
- upholding three-year medical-malpractice statute of repose against open- courts challenge, finding that “although we recognize that the three-year period of repose may cause some hardship for the [plaintiffs], that hardship was contemplated by the Legislature when it made its policy choice”
- outlining historical legislative debate in Maine over eliminating the so-called discovery rule in medical malpractice cases
- explaining the statutory scheme
- Supreme Judicial Court of Maine refers to the limitations period, requiring medical malpractice victims to discover injury within three years of act or omission giving rise to injury, as a statute of repose
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
with whom GLASSMAN and DANA, JJ., join, concurring.
I agree to affirm the decision of the Superior Court. I write separately because I do not agree with the analysis of Part I of the Court’s opinion. Instead, I would adopt the reasoning of the trial court.
Rather than accept the Choroszys’ position that they “reasonably could not have known” of the negligence of Tso, the trial court analyzed the difference between Choroszy’s situation and that of the foreign object surgical malpractice patient. I agree with that court’s conclusion, that it would not be unreasonable to expect Choroszy to seek a second opinion or to return to Tso because his hearing had not improved. In such circumstances, the application of the three-year statute of limitations cannot be said to violate Article I, section 19 of the Maine Constitution.