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Rule 80M – Medical Malpractice Screening Panel Procedure

May 13, 2021 | Civil Procedure, Maine

(a) Applicability and Confidentiality. This rule applies to medical malpractice screening panel proceedings under the Maine Health Security Act, 24 M.R.S. ยง2851, et seq. This rule supersedes the general provisions of the Maine Rules of Civil Procedure only to the extent that this rule provides otherwise. Medical malpractice screening panel proceedings shall be confidential.
(b) Commencement of Screening Panel Proceedings.

(1) Notice of Claim. A medical malpractice screening panel proceeding shall be commenced by a notice of claim in the same manner as a civil complaint. In addition to the form and content of the notice required by statute, an attorney representing a claimant shall sign the notice of claim as attorney. The notice of claim shall state the name, address and telephone number of the claimant’s attorney or of the self-represented claimant.
(2) Appointment of the Panel Chair. Upon the filing of a notice of claim, the clerk shall notify the Chief Justice of the Superior Court, who shall appoint a Panel Chair. The Panel Chair shall be responsible for the further conduct of the proceedings.
(3) Objections to the Panel Chair. Objections to the Panel Chair appointed shall be made by motion to the Chief Justice within 7 days of the appearance of all respondents.
(4) Objections to Conduct of the Panel Chair. A party seeking relief for cause arising from the conduct or inaction of the Panel Chair shall promptly state the objection by letter to the Chief Justice of the Superior Court.
(5) Notice of Appearance of Respondent. Each respondent shall file a notice of appearance that shall state the name, address and telephone number of the respondent’s attorney or of the self-represented respondent.
(6) Fees and Filing of Papers. All fees required by statute or by court rule or order shall be paid and all papers shall be signed as required by Rule 5(f). A fee is not required to be paid when required if the party files a motion for waiver of the fee pursuant to Rule 91. The Panel Chair may order that a fee be waived if permitted by statute or rule. If a motion for waiver of a fee is denied, the Panel Chair shall order a time for the prompt payment of the fee.
(c) Screening Panel Scheduling Order. The parties shall promptly confer on a schedule for exchanging medical records and for the future conduct of the proceedings, and they shall promptly advise the Panel Chair of any agreements on a proposed scheduling order. Within 7 days of the appearance of all respondents, a party may request a scheduling conference with the Panel Chair. If a scheduling conference has been requested, the conference shall be held within 14 days and a scheduling order shall be entered within 7 days of the conference. If no scheduling conference has been requested, the Panel Chair shall, within 14 days of the appearance of all respondents, enter a scheduling order. The scheduling order shall set deadlines for discovery, motions, the designation and depositions of experts, the date by which the parties shall be ready for hearing, and such other matters as the Panel Chair may require. The scheduling order shall comply with the applicable statutory deadlines and shall not be modified except on motion to the Panel Chair for good cause. Extensions of time may be granted by the Panel Chair only on motion for good cause made before the expiration of the deadline to be extended.
(d) Discovery. Discovery shall be conducted and disputes resolved by the Panel Chair in the same manner and with the same effect as in civil actions in the Superior Court.
(e) Motions. Motions shall be filed with the court and served on the Panel Chair. The Panel Chair shall determine those motions that are within the jurisdiction of the screening panel or that the parties have agreed by filed stipulation that the Panel Chair may decide. The Panel Chair may, before the panel hearing, order the parties to resolve by motion in the Superior Court legal defenses or issues outside the jurisdiction of the screening panel. If the Panel Chair decides that a motion is outside the jurisdiction of the screening panel, the Panel Chair shall refer the motion to the Chief Justice of the Superior Court for assignment to a justice of the Superior Court.
(f) Waiver of the Panel Hearing. The panel hearing may be waived at any time by stipulation signed by all parties and filed with the court. If a Panel Chair fails or is unable to appoint qualified panelists for a panel hearing to be held within the time required by statute, the Panel Chair or any party may apply to the Chief Justice for relief, which may include a waiver of the panel hearing by order finding that a qualified panel cannot be appointed to hold a panel hearing within the time required by statute. A waiver of the panel hearing terminates the screening panel proceedings in the Superior Court.
(g) Panel Hearing.

(1) Appointment of Panelists. The Panel Chair shall appoint at least one legal and one medical panelist. The Panel Chair may consult with the parties and others to locate potential panelists. Prior to appointment of a panelist, the Panel Chair shall inquire of a potential panelist whether the panelist has any personal or professional relationship to the parties, attorneys, witnesses or issues that could reasonably be expected affect the panelist’s fairness and independent judgment, and shall inform the panelist of the confidential and serious nature of the proceedings. The Panel Chair shall notify the parties of the appointment of the panelists and shall disclose any relationship to the parties and expert witnesses or any other source of potential conflict or bias identified during the Panel Chair’s inquiry of the panelist.
(2) Objections to Panelists. Objections for cause to proposed or appointed panelists shall promptly be directed to the Panel Chair. No ex parte communication with the Panel Chair or any panelist may be had on any substantive matter relevant to the proceedings.
(3) Time, Place and Schedule for Panel Hearing. After soliciting comment from the parties, the Panel Chair shall set a hearing date at least 60 days in advance and shall notify the parties of the date and location for the panel hearing. The Panel Chair shall make a reasonable effort to schedule the hearing to permit the parties and witnesses to attend in person. The panel hearing shall not be scheduled for more than one day or continued except on motion for good cause. The panel hearing shall be conducted in a courthouse or such other neutral location as the Panel Chair may select.
(4) Prehearing Conference. The Panel Chair may order a prehearing conference, which may be conducted by telephone or electronic communication. The parties shall be prepared to disclose and discuss the identity of witnesses and manner of presentation of testimony, the exhibits, medical literature, and deposition testimony to be offered, the time required for the presentations of the parties, the nature of any unusual legal or factual issues the Panel Chair may address or prepare in advance of the hearing, and the likelihood of scheduling or other problems that could affect the efficient conduct of the hearing. Motions in limine shall be filed with the court and served on the Panel Chair 14 days before the hearing.
(5) Submissions to the Panel. The Panel Chair may order the parties to submit to the panel in advance of the hearing briefs, medical records, depositions, exhibits, and such other material as the Panel Chair may direct.
(6) Recording of Panel Hearing. With notice to the other parties and to the panel chair, a party may, at that party’s expense, arrange for the panel hearing to be recorded for transcription in the same manner as for depositions under Rule 30(b)(4). Only one recorder or reporter shall be permitted. If more than one party has arranged for the hearing to be recorded, the Panel Chair shall select a person to record the hearing and the parties requesting the recording shall equally share the cost. At the hearing, the Panel Chair shall instruct the person recording or reporting the hearing that the proceedings are confidential, that recording or reporter’s notes shall be preserved by the reporter, and that no transcript of the hearing may be prepared without an order of the court.
(7) Conduct of the Panel Hearing. The Panel Chair shall conduct the hearing and make such rulings and orders as will promote the fair, efficient and inexpensive determination of the issues, including a reasonable allocation of the hearing time allowed the parties for their presentations.

(A) The Hearing. The panel hearing shall be closed to the public, unless otherwise stipulated by all parties, and shall be conducted so as to respect the serious nature of proceedings in a formal legal forum. The Maine Rules of Evidence shall not apply, but admitted evidence shall only be of a kind on which reasonable persons are accustomed to rely in the conduct of serious affairs. The Panel Chair may exclude evidence that is irrelevant, unreliable, cumulative or unfairly prejudicial to a party. Witnesses shall swear or affirm to tell the truth.
(B) Presentation of Testimony. The parties shall have the right to examine and cross-examine witnesses. The Panel Chair shall not permit long narrative answers that prejudice another party’s right to object to inadmissible testimony. With notice prior to hearing, in the absence of unfair prejudice to any opposing party and on such conditions as the Panel Chair may order, witnesses may be called by deposition or by telephone or video conference, and parties may submit an affidavit, summary of evidence or written report in lieu of testimony, regardless of a witness’s availability for appearance at the hearing. Such prior notice shall be given at a time and in a manner sufficient to permit the opposing party a meaningful opportunity to respond.
(C) Questions by the Panel. Except to for the limited purpose of clarifying testimony, questions by the panelists shall be deferred until after the parties have completed their examinations.
(D) Opening and Closing Statements. The parties may make opening or closing statements as permitted by the Panel Chair.
(8) Settlement and Mediation. The Panel Chair shall discuss with the parties the opportunity for settlement or mediation of the claim without the necessity of a hearing or findings. The Panel Chair may mediate the claim to the extent agreed by the parties in a filed stipulation.
(9) Deliberations and Findings. At the conclusion of the hearing, the panelists shall deliberate in confidential session and make the findings required by statute on a form provided by the Panel Chair. The panel shall make its findings based on the issues and evidence presented at the hearing.
(10) Evidence and Proceedings Confidential. Unless otherwise stipulated by the parties with the approval of the Panel Chair, the proceedings, evidence and findings in the panel hearing shall be confidential to the extent required by statute or by order of the court.
(11) Determination of Claim or Damages in Certain Screening Panel Proceedings. The parties may stipulate to submit the entire claim for binding determination by the panel. If liability is admitted, the parties may stipulate that the screening panel shall determine damages.
(h) Sanctions. For failure to prosecute or to comply with any scheduling order or other order of the Panel Chair or the court, the Panel Chair may for good cause impose sanctions on a party or an attorney after notice and opportunity for hearing. Sanctions may include conclusion of the panel proceeding with or without findings against the offending party or an order to proceed to Superior Court without findings. An order for sanctions shall be written and shall state the grounds for the sanctions and the specific sanctions imposed. Sanctions may be reviewed by the Chief Justice of the Superior Court pursuant to subdivision (b) (4) of this rule.
(i) Dismissal. A claimant may dismiss the notice of claim with or without prejudice at any time before the appointment of all panelists under this rule or by stipulation of all parties who have appeared in the screening panel proceeding. Otherwise, a screening panel proceeding may be dismissed with or without prejudice only on written order of the Panel Chair.

Me. R. Civ. P. 80M

Adopted September 12, 2008 effective February 1, 2009.

Advisory Committee Note

The Advisory Committee on the Maine Rules of Civil Procedure has recommended approval of the proposed rule drafted by the subcommittee after making minor changes in the originally recommended draft.