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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2003 ME 11
Docket: Cum-01-452
Argued: January 9, 2002
Decided: January 30, 2003
Revised: March 14, 2003
Panel: SAUFLEY, C.J., and RUDMAN, DANA, and CALKINS, JJ.
PATRICIA BRAWN et al.
v.
ORAL SURGERY ASSOCIATES et al.
ROBIN DUTIL et al.
v.
JOHN BURNS, D.D.S.
DANA, J.
[¶1] Twenty-one plaintiffs (plus thirteen spouses)[1] appeal from a judgment entered in the Superior Court (Cumberland County, Delahanty, J.) granting the defendants' motion for a summary judgment. The nineteen plaintiffs suing Oral Surgery Associates (OSA) and Lewis N. Estabrooks, O.M.D., Carlton E. Fairbanks, D.M.D., Russell J. Collett, D.D.S., and David J. Moyer, D.D.S., M.D. (hereinafter "the OSA defendants") contend the court erred when it concluded that the plaintiffs' negligence claims were barred by the statute of limitations and that they had not generated a genuine issue of material fact as to whether the OSA defendants had fraudulently concealed[2] some of their claims. All of the plaintiffs, including the two who brought suit against John Burns, D.D.S., challenge the court's dismissal of all of their claims after the court concluded that the defendants breached no duty to the plaintiffs following operations to implant devices to relieve malfunctions of the jawbone's temporomandibular joints. We vacate the judgment in part because there are genuine issues of material fact concerning both malpractice and a pattern of concealment following the dates of the original implants.
I. BACKGROUND
[¶2] This litigation seeks a remedy for the damage to the plaintiffs resulting from the alleged breakdown within their bodies of the teflon proplast implants manufactured, between February 1983 and June 1988, by the now-defunct Vitek Corporation. The implants were supposed to relieve malfunctions of the jawbone's temporomandibular joints. The twenty-one patients received Vitek implants from the OSA defendants and Dr. John Burns[3] between 1983 and 1988 and filed notices of claim between 1993 and 1998.[4] In late December 1990 the United States Food and Drug Administration distributed a safety alert to address "serious problems with proplast coated TMJ implant[s]."
These implants, all of which are made of Proplast® . . . have been associated with implant perforation, fragmentation and/or foreign body response which may result in progressive bone degeneration of the mandibular condyle and/or glenoid fossa. If bone degeneration continues unchecked, patients may experience intense pain and severely limited joint function. One study found that all patients with Proplast®-coated . . . implants who experienced complications demonstrated progressive bone degeneration in as little as one to two years. In a second study, implant failure and bone degeneration occurred in both symptomatic and asymptomatic patients.
FDA Alert 12/28/90. The FDA recommended that asymptomatic patients undergo "immediate and appropriate radiographic examination." Id.
[¶3] After the parties waived prelitigation screening,[5] the OSA plaintiffs filed complaints against the OSA defendants asserting claims of product liability, breach of warranty, negligence, and loss of consortium. In July 1999 the Superior Court dismissed all the plaintiffs' claims for product liability, breach of warranty and loss of consortium, leaving only the negligence claims remaining.[6] The complaints allege the defendants were negligent both prior to and after the implant surgery. In January 2000 the defendants moved for a summary judgment against seven[7] of the plaintiffs based on the expiration of the three-year statute of limitations governing medical malpractice claims.[8] In that judgment, the court found that these seven plaintiffs all learned of the dangers to their health more than three years before their notices of claim, and therefore, dismissed their "breach of the duty to warn" claims.[9]
A. The Second Motion for Summary Judgment Regarding Fraudulent Concealment
[¶4] In April 2001 the OSA defendants moved for a partial summary judgment on all the plaintiffs' claims that rely upon the six-year statute of limitations available following the discovery of a claim that a defendant has fraudulently concealed.[10] The OSA defendants did not move for a summary judgment on any other claims.
[¶5] In their statement of material facts the OSA defendants state that they had, at some point, telephoned two of the plaintiffs (Farnum and Goddard) and urged them to come in for a checkup and had written fourteen other plaintiffs[11] with varying frequency also asking them to come in for an examination.
[¶6] According to their statement of material facts, in January and February 1991, following the December 1990 FDA alert, the OSA defendants wrote to eight of the plaintiffs[12] informing them that:
The Federal Drug Administration . . . advises us that Proplast Implants "have been associated with implant perforation, fragmentation and/or foreign body response which may result in progressive bone degeneration of the mandibular condyle and/or glenoid fossa . . . ."
[¶7] Of the eight, five plaintiffs[13] admit they either received the letter from the OSA defendants or otherwise learned of the FDA alert in 1991. Two plaintiffs[14] deny they ever received a notice of the FDA alert, and one plaintiff[15] heard from the FDA directly in 1992. When six[16] of the eight plaintiffs consulted with their OSA oral surgeons in response to a letter or otherwise, two of the OSA surgeons, Dr. Estabrooks and Dr. Collett, assured them that their symptoms were unrelated to the implants.
[¶8] The OSA defendants state they sent another letter in October 1991 to the above eight plus an additional two plaintiffs[17] containing copies of the Vitek notice of bankruptcy. The letter provided:
Our records show that you received a TMJ implant from Vitek. This letter is not to imply any damage in the material which was placed but only to inform you of our notification.
[¶9] The OSA defendants gave the names of twelve plaintiffs to the Medic Alert Implant Registry in 1991 and 1992. A March 1993 list added two more plaintiffs. The OSA defendants wrote these fourteen[18] in May 1993 urging them to contact the office. In August 1993 the OSA defendants sent a letter to these fourteen plaintiffs containing an "information packet." An article from the Journal of Oral and Maxillofacial Surgery was sent in November 1993 and follow-up letters were sent in 1997 and 1998.
[¶10] The OSA defendants offer no evidence that they ever sent the five remaining OSA plaintiffs,[19] any notice. Brawn and Foster state that Dr. Fairbanks refused to acknowledge any connection between their implants and their symptoms. Nickerson said that Dr. Collett also dismissed the existence of any causal relationship between his symptoms and the TMJ implant.
[¶11] In May of 2000 the OSA plaintiffs filed an opposition to the OSA defendants' motion for a partial summary judgment including their own statement of material facts as to which they contended that there existed genuine issues to be tried. The plaintiffs properly controverted certain statements of material fact[20] made by the OSA defendants, and did not sufficiently respond to others. Additionally, the plaintiffs presented further facts in support of their assertion that the OSA defendants had engaged in a pattern of conduct, which they asserted amounted to fraudulent concealment. In their statement of material facts, the plaintiffs reported thirteen "instances of concealment,"[21] the following three being representative:
1. Bonnie Seavey
As a result of receiving the FDA notice in March, 1991, she made an appointment to see Dr. Collett and at the appointment she showed him the letter she received from the FDA and showed him her hearing aid for her left ear. She told him about the pain and all of the symptoms she was having. She described the pain in both jaw joints, the squeaking joints, eye ticks, facial muscle pain, neck pain on both sides down to the shoulder, hearing loss, wearing a hearing aid in her left ear . . . . She is not certain if she talked to him about her headaches, but the headache pain was more severe and had changed, and the intense pain she experienced on both sides of her jaw in March 1991 was chronic. Dr. Collett's records say that she had few complaints and that the complaints she did have consisted of occasional headaches. That statement is adamantly denied by Bonnie. Dr. Collett goes on to indicate that there was good mandibular function with very little TMJ pain. Dr. Collett is not accurate in recording his clinical evaluation. She states that she had restricted opening of her mandible and could not move her jaw side to side. Dr. Collett indicates that there was no change in her occlusion and she indicates that is not accurate; that her teeth were out of alignment and she was not able to bring them together. Dr. Collett took x-rays of her TMJ's at that time and told her everything looked fine. Dr. Collett told her that the symptoms were caused by her not taking good enough care of herself. There was too much stress in her life and the Teflon disks had nothing to do with the symptoms. She discussed the possibility of removing the disks when she met with Dr. Collett in March 1991 and Dr. Collett told her the FDA is panicking. He said there were a few clients who were misusing their joints. He told her that she was fine and she did not need to have them removed. He did suggest x-rays in six months. Dr. Collett [said] that the implants would not fall out, would not break down, and would be there permanently for the remainder of her lifetime . . . .
2. Barbara Connelly
She is very clear that she never received anything from Dr. Estabrooks' office about the implants, but she did receive a letter from the FDA in approximately January 1993 which precipitated her contacting Dr. Estabrooks immediately. She recalls Dr. Estabrooks telling her that the device would not break down, but that if her body rejected it, it might move and the wires breaking would show that the implant had moved. Dr. Estabrooks denied that the Teflon implants caused any problems. She disagrees with Dr. Estabrooks' records that reflect her March 1991 visit with the result of his sending her information about the FDA warnings, and she is very certain that is not true because she saw him in 1993 after receiving the warnings, she wanted to move immediately to have the implants removed before they could cause any significant further damage and the surgery was performed in 1993. . . . The problems she was having at that time which she thought might be related to the Vitek were severe bouts of sinusitis and bronchitis, severe headaches, joint pain throughout her body, fatigue, low grade fever, swollen glands. In 1991 or 1993 when she saw Dr. Estabrooks, he discouraged her from seeking a second opinion. Specifically, in January 1993, she mentioned Dr. Mitchell's name as one of the doctors who understood the problems with Teflon implants, and Dr. Estabrooks assured her that those articles were not true and that she needed to believe him. When she saw him in January 1993, he laughed off the FDA notice and said it was no big deal, and that once a year would be enough to take x-rays. He assured her that those articles were not true. He assured her there were no problems with the Teflon and that the FDA was just being overly cautious. Dr. Estabrooks says that he sent her material in 1991 from the FDA, but she did not receive the material. She doesn't understand why he didn't discuss with her the FDA concerns if he actually sent her that material. She saw him in 1991 and he never mentioned anything like that. He never discussed anything about the FDA until she received the FDA report in 1993 and contacted his office for an appointment.
3. Barbara Traynor
She is shown Exhibit #2, which is a letter from Dr. Estabrooks' office and recalls receiving that letter and indicates that she called his office to make an appointment upon receiving the letter. When she saw Dr. Estabrooks after making the appointment, he minimized the problem. He wanted to run the show and not have her ask any questions. She became very frustrated with Dr. Estabrooks because he continued to tell her that there was no problem. When she described her symptoms, he suggested that they might be caused from menopause or from the bad divorce she had a couple of years ago. He assured that the implant certainly wasn't causing her any problems. She does not remember when she received the letter from Dr. Estabrooks. She remembers the office appointment very clearly and remembers Dr. Estabrooks being very belittling. He continued to tell her not to worry about the implant. When she saw Dr. Estabrooks after the FDA notice was received, he was not honest with her about [the] discussions that took place [previously].
There are no "instances of concealment" in the statement of material facts for the remaining six OSA plaintiffs.[22] All of the plaintiffs, however, rely on the thirteen instances of concealment as evidence of a pattern of concealment as well as evidence of independent malpractice.
[¶12] The OSA defendants replied to the plaintiffs' statement of material facts with a memorandum of law emphasizing their understanding of the law of fraudulent concealment:
[P]laintiffs in their Opposition, do not deny that OSA spent hundreds of hours to identify, locate and attempt to warn plaintiffs. That uncontradicted fact is diametrically inconsistent with fraudulent concealment. On these facts a jury could not reasonably find that OSA fraudulently concealed the fact of injury from plaintiffs.
[¶13] Although the OSA defendants assert that they had expended "extraordinary efforts" to warn their patients, they did not file an additional statement of material facts controverting the factual assertions supported by the plaintiffs' statement of material facts.
[¶14] Although the OSA defendants had only moved for a partial summary judgment against the OSA plaintiffs on their fraudulent concealment claims, the Superior Court granted a summary judgment against all of the plaintiffs with respect to all their remaining claims of negligence under either the three-year, 24 M.R.S.A. § 2902, or the six-year statute of limitations, 14 M.R.S.A. § 859, and the plaintiffs filed this appeal.
II. DISCUSSION
[¶15] "We review the grant of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom judgment has been granted to decide whether the parties' statements of material facts and the referenced record material reveal a genuine issue of material fact." Rogers v. Jackson, 2002 ME 140, ¶ 5, 804 A.2d 379, 379 (citations omitted). If a genuine issue of material fact exists, summary judgment is improper. See id. The plaintiffs bear the burden of making a prima facie showing of each element of their negligence claims in order to defeat summary judgment. See Rutland v. Mullen, 2002 ME 98, ¶ 8, 798 A.2d 1104, 1109. We examine the evidence presented in the statements of material facts in the light most favorable to the non-prevailing party; the party opposing a summary judgment motion is given the benefit of "any reasonable inferences that a fact-finder could draw from the given facts." Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18, 22; see also Jenness v. Nickerson, 637 A.2d 1152, 1154 (Me. 1994) (quoting 2 Field, McKusick & Wroth, Maine Civil Practice § 56.4 at 39 (2d ed. 1970)). We will vacate a summary judgment if there is a genuine issue of material fact, see Paschal v. City of Bangor, 2000 ME 50, ¶ 9, 747 A.2d 1194, 1197, or the trial court committed a legal error, Curtis v. Allstate Ins. Co., 2002 ME 9, ¶ 16, 787 A.2d 760, 765.
[¶16] Claims for medical malpractice are governed by the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2985 (2000 & Supp. 2002). The MHSA dictates the procedural requirements for advancing a professional negligence claim. The statute states "professional negligence" means that:
A. There is a reasonable medical or professional probability that the acts or omissions complained of constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care; and
B. There is a reasonable medical or professional probability that the acts or omissions complained of proximately caused the injury complained of.
24 M.R.S.A. § 2502(7) (2000).
[¶17] Whether a party owes a particular duty of care to another is a question of law within our purview. Williams v. Inverness Corp., 664 A.2d 1244, 1246 (Me. 1995). A doctor should use "the ordinary skill of members of [the] profession in like situation . . . exercise ordinary or reasonable care and diligence in [the] treatment of the case, and . . . use his [or her] best judgment in the application of . . . skill to the case." Coombs v. King, 107 Me. 376, 378, 78 A. 468, 468 (1910). We have recognized that a doctor has a duty to warn a patient of learned dangers of implanted devices, see Welch v. McCarthy, 677 A.2d 1066, 1069 (Me. 1996). An action for breach of a physician's duty to obtain the patient's informed consent is limited by statute.[23]
[¶18] From their unrebutted statement of material facts a fact-finder could conclude that the OSA oral surgeons and Dr. Burns breached the standard of care required of oral surgeons in that, with respect to the temporomandibular joint implants manufactured by Vitek and implanted in the plaintiffs they:
A. At various times from 1983 to 1988 but prior to the implant operations,
1. failed generally to inform the plaintiffs of certain risks and consequences of the planned medical procedure about which they were aware or should have been aware including:
a. their failure to include as part of their informed consent process before surgery any mention of all the reports of foreign body tissue reactions, bone resorption, immune reaction, or long-term immunological responses;
b. their failure to include as part of their informed consent form that Teflon Proplast material could fragment in the body;
c. Dr. Estabrooks' failure to disclose that he first identified the giant cell reaction to a Vitek implant he removed in 1983 or 1984;
d. Dr. Estabrooks' failure to disclose that he contacted the President of Vitek in 1983 or 1984 because the giant cell reaction was of a "limited degree of concern to him";
e. Dr. Estabrooks' failure to disclose that in 1986 he was aware of research trying to interpret the foreign body giant cells found in Vitek recipients; and
f. Dr. Estabrooks' failure to disclose that in 1987 he was informed at a meeting financed by Vitek that patients were experiencing foreign body giant cells and the breakdown of their implants.
B. At various times after the operations but before the filing of notices of claim, which were filed between April 30, 1993, and August 20, 1998,
1. failed generally to provide adequate information from which the plaintiffs could make informed judgments about whether and when to have the Vitek implants removed, including:
a. where appropriate, the failures set forth in paragraphs A.1.a-f;
b. their failure to mention in written communications sent to some, but not all, of their patients following the FDA safety alert dated December 28, 1990;
i. the extensive history of reported medical concerns dating back as far as 1963;
ii. that the implants might fragment while in the body;
iii. that the implants can cause giant cell reaction or bone degeneration as part of the immune response to particles in the body;
c. Dr. Fairbanks' failure to disclose in 1991 that he became aware of studies that demonstrated that the implants could result in bone degeneration around the implant in as little as one to two years;
2. affirmatively misled plaintiffs when they sought advice following receipt of the FDA safety alert, one of OSA's communications, or a newspaper article;
3. never adequately advised the plaintiffs, even after the FDA safety alert dated December 28, 1990, that the implants can cause giant cell reaction or bone degeneration as part of the immune response to the particles in the body;
4. never encouraged the plaintiffs to register with the Medic Alert Foundation; and
5. never advised the plaintiffs to be treated by them or have their medical condition followed elsewhere.
[¶19] Plaintiffs' claims can be subdivided as follows:
a) a breach of the duty to adequately warn the patient prior to the operation;
b) fraudulently concealing from the patient during the three-year period following the operation that the oral surgeon had previously breached his duty to adequately warn the patient prior to the operation;
c) fraudulently concealing from the patient after the three-year period following the operation that the surgeon had previously breached his duty to adequately warn the patient prior to the operation;
d) a breach of the duty to adequately advise the patient as to the risks to his/her health of leaving the implants in place during the period after the operation but prior to the three years immediately preceding the filing of the notice of claim; and
e) a breach of the duty to adequately advise the patient as to the risks to his/her health of leaving the implants in place during the period after the operation and within three years of the filing of the notice of claim.
Because the court found that all of the plaintiffs' negligence claims were time-barred, we deal with each of the above claims in order.
A. Duty to Warn Prior to the Operations
[¶20] Since all of the operations were performed between April 4, 1983, and March 16, 1988, and the earliest notice of claim was filed on April 30, 1993, the court properly granted judgment to the defendants on all of the plaintiffs' negligence claims arising out of the duty to warn prior to the operations. See 25 M.R.S.A. § 2902. [24]
B. Fraudulently concealing within three years of the operation a breach of their duty to warn prior to the operation.
[¶21] Fraudulent concealment is an equitable remedy [25] recognized by courts as a potential means to ameliorate the "harsh application in individual cases" of the medical malpractice statute of limitations. Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995) (quoting Rohrabaugh v. Wagoner, 413 N.E.2d 891, 895 (Ind. 1980)). Fraud is a mixed question of fact and law. Bixler v. Wright, 116 Me. 133, 135, 100 A. 467, 468 (1917); see also Meadors v. Still, 40 S.W.3d 294, 312, 315-16 (Ark. 2001) (recognizing that the issue of fraudulent concealment is normally a question of fact that is not suited for summary judgment; however, because there was no proof of a "positive act of fraud," the court remained unwilling to extend the doctrine to include negligent acts). We have held:
If one intentionally misrepresents to another facts particularly within his own knowledge, with an intent that the other shall act upon them, and he does so act, he cannot afterwards excuse himself by saying,