referencing the American College of Surgeons, "a national organization which sets standards of care for its member surgeons, ... [and] plays an important role in setting and maintaining national standards of care for surgical specialist.”
How later courts described this case
- referencing the American College of Surgeons, "a national organization which sets standards of care for its member surgeons, ... [and] plays an important role in setting and maintaining national standards of care for surgical specialist.”
- rejecting locality rule; declining to consider “what role, if any, geography will play with regard to the standard of care applicable to non-specialists”
- a member of one specialty may testify to the standard of care applicable to another specialty provided he is familiar with the standard of care and qualified to testify about it
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
dissenting in part.
I join in Part I of the Court’s opinion. I cannot concur, however, in Part II. In my view the record in this case exposes the unfairness of the rule established in Givertz v. Maine Medical Center, 459 A.2d 548 (Me.1983). By application of the Givertz rule Russell Taylor’s suit is dismissed without any hint of prejudice to the defendant as a result of lack of notice. See Givertz, 459 A.2d at 556 (Roberts, J., dissenting).
The procedural history of this case demonstrates how the Givertz rule undermines the legitimate function of the notice requirement as outlined in Dougherty v. Oliviero, 427 A.2d 487 (Me.1981). When this action was commenced the defendant did not seek relief pursuant to Dougherty . Rather, he simply alleged enigmatically that plaintiffs “failed to perform all conditions precedent required by law.... ” The defendant lay in wait behind that vague allegation until after the two-year statute of limitations had expired. Then, for the first time, the defendant made specific reference to Russell Taylor’s failure to give notice pursuant to 24 M.R.S.A. § 2903. Clever defense counsel has turned section 2903 into “a trap for the unwary.” See Erickson v. State, 444 A.2d 345, 351 (Me.1982) (Roberts, J., dissenting).