PORTLAND — An attorney for a Lewiston hospital on Monday sought to have the state’s highest court throw out a verdict by a lower court jury in a case in which a former patient had been told he had a fatal form of cancer.

The appeal by Central Maine Medical Center hinged on the trial judge’s ruling allowing a single sentence in a December 2009 letter from that hospital’s then-president to Wendell Strout of Greene admitting that his doctor should have waited for more conclusive test results before issuing a diagnosis, which turned out to be wrong.

Christopher Nyhan argued before the Maine Supreme Judicial Court on Monday that the entire letter authored by then-President and CEO Laird Covey should have been kept from the jury at the civil trial in Androscoggin County Superior Court last year. In that letter, Covey sympathized over the anguish the premature diagnosis caused Strout.

Instead, Active-Retired Justice Robert Clifford allowed the jury to hear one sentence of Laird’s letter in which he refers to an April 2009 meeting between Strout and his CMMC doctor: “He realizes now that, prior to sharing his clinical impressions with you, he needed to wait for the results of the biopsy to confirm what the cancer was.”

In April 2009, Dr. Ian Reight, a general surgeon at CMMC, made a preliminary diagnosis of pancreatic cancer, a very aggressive form that would almost certainly have ended Strout’s life. He was told, “that his life will most likely be measured in months.”

What Strout actually had was the less-menacing non-Hodgkins lymphoma, a more treatable form of the disease. But it wasn’t until early June that Strout learned of his actual diagnosis, more than a month after the earlier diagnosis, his attorney, Scott Lynch, told the high court Monday.

Strout had taken time off from his job as animal control officer in Lewiston and surrounding municipalities. He had sought to provide for his wife before dying.

The jury awarded Strout $200,000 in damages, one-third more than he had sought, a reflection of the prejudicial nature of that statement upon which the appeal is based, Nyhan said.

Nyhan told the justices on Monday that the Legislature, in drafting the law addressing expressions of sympathy in medical cases, wanted hospitals to be able to share their feelings with patients and their families in cases of unsuccessful or undesired outcomes without fear of having those same expressions trigger medical malpractice lawsuits.

By parsing such a letter to allow only a single sentence without context at trial ran counter to the law’s intent and would have a chilling effect on it, Nyhan argued.

Chief Justice Leigh Saufley said: “Contextually, it’s the worst of all worlds for the defendant,” because that single sentence wasn’t presented to the jury along with expressions of sympathy on the hospital’s behalf.

“Aren’t we looking at a problem now where what will happen after this case . . . is that hospitals will not issue apology letters because someone with a legal degree will parse through it and find something individual that goes to the jury?” Saufley asked. “So, essentially, the statute becomes eviscerated.”

“That’s precisely the point,” Nyhan said.

“An apology letter isn’t a statement of fault,” Justice Donald Alexander said, adding the hospital could have chosen not to include that one sentence admitted at trial.

Justice Andrew Mead asked whether, by Nyhan’s reasoning, a letter by a hospital or doctor that detailed medical errors, and included a single sentence of apology, would have to be held back from the jury.

“I think so,” Nyhan agreed. “It would be unfair to cherry-pick.”

Lynch pointed out to the court that the law refers to “statements” of fault, and not “letters” of apology, suggesting that a letter could rightly be parsed by its statements as the trial judge allowed.

CMMC’s letter to Strout was “multipurpose,” Lynch said, not just a letter of apology.

“We have to take the law as the Legislature gave it to use,” he said.

No immediate decision is expected by the court. 

cwilliams@sunjournal.com

Copy the Story Link