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Butler v. Killoran, corrected 7-6-98
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 	1998 ME 147
Docket:	Cum-97-311
Argued:	December 2, 1997
Decided:	June 15, 1998


Panel:   WATHEN, C.J., and ROBERTS,  CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.  

WALTER K. BUTLER, III

v.

PAUL J. KILLORAN, M.D.; 
PEN-BAY X-RAY ASSOCIATES; and
PENOBSCOT BAY MEDICAL CENTER

	
LIPEZ, J.

	[¶1]  Walter K. Butler, III, the personal representative of the estate of
Martha Butler, appeals from the judgment entered in the Superior Court
(Cumberland County, Calkins, J.) granting the Defendants' motions for a
summary judgment on Butler's notice of claim for wrongful death arising
from medical malpractice.  Butler argues that the court erred by applying
the three-year statute of limitations for professional negligence pursuant to
the Health Security Act, 24 M.R.S.A. §§ 2501-2985 (1990 & Pamph. 1997)
to determine that his cause of action was time-barred, and that the court
should have applied the two-year statute of limitations pursuant to Maine's
Wrongful Death Act, 18-A M.R.S.A. § 2-804 (1998), to find that his cause of
action was timely.  We affirm the judgment. 

I.

	[¶2]  On September 18, 1996, Walter K. Butler, III, the personal
representative of the estate of Martha Butler, filed a notice of claim{1} against 
Paul Killoran, M.D., Pen-Bay X-Ray Associates, and Penobscot Bay Medical
Center seeking relief pursuant to 18-A M.R.S.A. § 2-804, Maine's wrongful
death statute.  In pertinent part, the notice of claim alleged that on August
7, 1992, the Defendants caused an MRI to be performed on Martha's brain;
that they negligently failed to detect on the MRI film an otherwise treatable
brain aneurysm; and that the aneurysm burst on October 8, 1994, resulting
in Martha's death two days later on October 10, 1994.   
	[¶3]  The Defendants filed motions for a summary judgment, arguing
that the Health Security Act's three year limitations period, running from
the date of the Defendants' alleged negligence in 1992, had expired before
Butler commenced his cause of action in 1996.{2}  Butler opposed the
motions, arguing that the Wrongful Death Act's two-year limitations period,
running from the date of Martha's death in 1994, controlled his cause of
action.  The court granted a summary judgment to the Defendants, finding
that Butler's cause of action was time-barred by the three-year statute of
limitations for professional negligence claims pursuant to section 2902 of
the Health Security Act, 24 M.R.S.A. §§ 2501-2985.  This appeal followed.  

II.

	[¶4]  The issue before us is whether a cause of action for wrongful
death arising from professional negligence must be commenced within the
statute of limitations set forth in Maine's Wrongful Death Act (WDA), 18-A
M.R.S.A. § 2-804,{3} or within the statute of limitations set forth in the Health
Security Act (HSA), 24 M.R.S.A. § 2902.  Pursuant to the WDA, a plaintiff
must commence the action for wrongful death within two years after the
decedent's death.  See 18-A M.R.S.A. § 2-804(b).  Thus, if the WDA's statute
of limitations is applied to Butler's claim, his cause of action is timely. 
Pursuant to the HSA, however, "actions for professional negligence" must be
commenced within three years after the cause of action accrues.  See 24
M.R.S.A. § 2902.  An "action for professional negligence" is defined in
section 2502 as

any action for damages for injury or death against any health care
provider, its agents or employees, or health care practitioner,
his agents or employees, whether based upon tort or breach of
contract or otherwise, arising out of the provision or failure to
provide health care services.

Id. § 2502(6).  For the purposes of section 2902, a cause of action accrues
on the date of the act or omission giving rise to the injury.  See id. § 2902. 
Thus, if the HSA's three-year limitations period is applied to Butler's claim,
his cause of action is time-barred.
	[¶5]  In reviewing the grant of a motion for a summary judgment, we
examine the evidence in a light most favorable to the nonprevailing party to
determine whether the court committed an error of law.  See Community
Telecommunications Corp. v. State Tax Assessor, 684 A.2d 424, 426 (Me.
1996) (citing Enerquin Air, Inc. v. State Tax Assessor, 670 A.2d 926, 928
(Me. 1996)).  The meaning and construction of statutory language presents a
question of law.  See id.   
	[¶6]  We begin by examining the language of section 2502's definition
of an "action for professional negligence" to determine whether the
Legislature intended that phrase to encompass actions for wrongful death
arising from professional negligence.  See Labbe v. Nissen Corp., 404 A.2d
564, 567 (Me. 1979) (in seeking to determine legislative intent, we must
look first to the language of the statute itself).  Section 2502's broad
language, particularly its inclusion of the words "or death" and "or
otherwise," provides strong evidence of the Legislature's intention that the
HSA fully occupy the field of claims brought against health care providers
and practitioners "for damages for injury or death . . . arising out of the
provision or failure to provide health care services."  24 M.R.S.A. § 2502(6);
see Dutil v. Burns, 674 A.2d 910, 911 (Me. 1996); Musk v. Nelson, 647 A.2d
1198, 1201 (Me. 1994).  Indeed, we have previously recognized the broad
scope of section 2502's definition of an action for professional negligence,
and have found the HSA's procedural requirements and limitations period to
be applicable in a wide variety of contexts.{4}  See, e.g., Brand v. Seider, 1997
ME 176, 697 A.2d 846 (patient's claim against psychologist for breach of
confidentiality is subject to HSA's procedural requirements); Dutil, 674 A.2d
910 (strict liability and breach of warranty claims brought against health
care providers are subject to the HSA's procedural requirements and
limitations period), Musk, 647 A.2d 1198 (claim for failed sterilization is
subject to HSA's limitations period); Thayer v. Jackson Brook Inst., 584 A.2d
653 (Me. 1991) (claim brought by plaintiff who was attacked while visiting
patient care facility is subject to HSA's limitations period).{5} 
	[¶7]  Despite the breadth of section 2502's definition of an "action for
professional negligence" subject to the provisions of the HSA, Butler argues
for the limited applicability of the HSA's statute of limitations in the context
of actions for wrongful death arising from professional negligence. 
Specifically, he contends that the HSA's statute of limitations is applicable
only for the narrow purpose of determining whether the decedent had an
unexpired cause of action for professional negligence at the time of her
death, which is a necessary precondition to a personal representative's
subsequent wrongful death action.  See Ogden v. Berry, 572 A.2d 1082,
1083 (Me. 1990) (where decedent's cause of action for professional
negligence had expired before his death, personal representative had no
cause of action for wrongful death).  If that precondition is met, he argues,
an independent cause of action for wrongful death arises in the personal
representative, controlled exclusively by the WDA's limitation period.   
	[¶8]  To support his theory of the limited applicability of section 2902,
Butler invokes the principle of statutory construction that a court should not
read a statute to conflict with another when an alternative, reasonable
interpretation yields harmony.  See Pinkham v. Morrill, 622 A.2d 90, 95
(Me. 1993).  A ruling that the HSA's limitations period applies only to the
threshold question of whether the decedent possessed a timely cause of
action for professional negligence at the time of her death would give
meaning to both the HSA's and the WDA's limitations periods in the context
of an action for wrongful death arising from professional negligence.
	[¶9]  The principle of "harmonious" statutory construction cannot
contravene the intent of the Legislature in adopting one of the statutes that
creates the conflict.  See Soucy v. Board of Trustees of Maine State
Retirement System, 456 A.2d 1279, 1281 (Me. 1983) (fundamental rules of
statutory construction prohibit interpreting statute in manner inconsistent
with legislative intent).  The legislative history of the HSA is well
documented.  In response to an alleged national crisis in the availability and
cost of medical malpractice insurance, the Legislature created in 1975 the
Commission to Revise the Laws Relating to Medical and Hospital Malpractice
Insurance, an entity more commonly known as the Pomeroy Commission.
The Commission was charged with the task of preparing "a proposal to
insure the availability of medical and hospital malpractice insurance . . . and
to develop a more equitable system of relief for malpractice claims." See P.
& S.L. 1975, ch. 73, § 1.  In its final report to the Legislature, the
Commission confirmed that malpractice insurance rates in Maine had
escalated in recent years, and it proposed comprehensive tort reform within
the health care industry designed to stem rising malpractice insurance costs
and ensure the continued availability of malpractice insurance to Maine
health care providers and practitioners. See Commission to Revise the Laws
Relating to Medical and Hospital Malpractice Insurance, Report to the
108th Legislature xv-xxiii (Jan. 22, 1977).  The Commission's
recommendations, including a proposal to shorten the statute of limitations
for actions arising out of patient care, formed the basis of the Health
Security Act, which was enacted in 1977 and amended in 1985.{6}  See P.L.
1977, ch. 492; P.L. 1985, ch. 804.    
	[¶10]  The application of the WDA's statute of limitations to wrongful
death actions arising from professional negligence could extend health care
providers' and practitioners' potential exposure to litigation to nearly five
years after the date of the alleged negligence,{7} a result which is contrary to
the Legislature's decision to shorten the statute of limitations for actions
arising from professional negligence.  The Legislature's concerns about the
affordability and availability of medical malpractice insurance are implicated
by all actions involving medical malpractice, irrespective of whether the
malpractice resulted in injury or in death, and irrespective of whether the
action is brought on behalf of a decedent or on behalf of a decedent's heirs.{8}
	[¶11]  We are also mindful of the principle of statutory construction
that a statute dealing with a subject specifically prevails over another statute
dealing with the same subject generally.  See 2B Sutherland, Statutory
Construction § 51.05, at 174 (1992 & Supp. 1998) ("Where one statute
deals with a subject in general terms, and another deals with a part of the
same subject in a more detailed way, the two should be harmonized if
possible; but if there is any conflict, the latter will prevail, regardless of
whether it was passed prior to the general statute, unless it appears that the
legislature intended to make the general act controlling."); see, e.g., South
Portland Civil Service Comm'n v. City of South Portland, 667 A.2d 599, 601
(Me. 1995); Swan v. Sohio Oil Co., 618 A.2d 214, 219 (Me. 1992);  State v.
Anderson, 409 A.2d 1290, 1304-1305 (Me. 1979).  Pursuant to this
principle, the WDA's general provisions creating a cause of action for
wrongful death arising from a "wrongful act, neglect, or default" must yield
to the HSA's more specific provisions, which pertain only to claims arising
from professional negligence by health care providers and practitioners.
See, e.g., Jensen v. IHC Hospitals, Inc., 944 P.2d 327, 331 (Utah 1997)
(applying medical malpractice statute of limitations to action for wrongful
death arising from medical malpractice, based partly on fact that the
medical malpractice statute "is more specific than the general wrongful
death statute of limitations, applying as it does only to wrongful death
actions arising out of medical malpractice").	
	[¶12]  In summary, the broad language of section 2502, the legislative
history surrounding its enactment, and the specificity of the subject matter
of the HSA persuade us that the Legislature intended section 2502 to mean
exactly what it says:  that an action for professional negligence is "any action
for damages for injury or death . . . arising out of the provision or failure to
provide health care services."  Butler has filed such an action.  That action is
subject to the HSA's limitations period.  See 24 M.R.S.A. §§ 2502, 2902.{9}       
	The entry is:
		Judgment affirmed.
                                               
Attorneys for plaintiff:

David D. Gregory, Esq., (orally)
246 Deering Avenue
Portland, ME 04102-2837

John A. McArdle, III, Esq.
Campbell & McArdle, P.A.
P O Box 369
Portland, ME 04112-0369

Attorneys for defendants:

David L. Herzer, Jr., Esq., (orally)
David C. Norman, Esq.
Norman, Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600
(for Killoran and Pen-Bay X-Ray Assoc.)

Carrie A. Green, Esq., (orally)
Daniel Rapaport, Esq.
Preti, Flaherty, Beliveau & Pachios, LLC
P O Box 11410
Portland, ME 04104-7410
(for Penobscot Bay Med. Ctr.)