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Garland v. Sherwin
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MAINE SUPREME JUDICIAL COURT					                           Reporter of Decisions
Decision:	2002 ME 131
Docket:	   Pen-01-777
Argued:		May 9, 2002
Decided:	August 8, 2002

Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and
LEVY, JJ.



                                                            LONNIE GARLAND

                                                                            v.

                                                           JOSHUA SHERWIN


CALKINS, J.

	[1]  Lonnie Garland appeals from a summary judgment entered in
Superior Court (Penobscot County, Mead, J.) in favor of Dr. Joshua Sherwin. 
Because we agree with the court that Garland's medical malpractice action is
barred by the statute of limitations, we affirm the judgment.

	[2]  On June 18, 1996, an x-ray was performed on Garland at Eastern
Maine Medical Center and read by Sherwin.  On September 25, 1996, an MRI
was performed on Garland at Magnetic Resonance Imaging Associates and read by
Dr. Mary Warner.  Sherwin and Warner failed to diagnose a cancerous tumor that
was discovered in 1997.

	[3]  Garland filed the complaint in this medical malpractice action against
Sherwin on April 11, 2001.  Pursuant to the requirements of the statutory scheme
for mandatory prelitigation screening of medical malpractice actions, 24 M.R.S.A.
 2851-2859 (2000), Garland had filed a notice of claim against Warner and
MRI Associates on August 28, 1998.  Id.  2853, 2903.  He filed an amended
notice of claim on March 29, 1999, that listed claims against Sherwin and EMMC. 
The malpractice screening panel filed its findings on December 4, 2000. 

	[4]  Upon the filing of Garland's complaint, Sherwin moved for summary
judgment on the ground that the action was not brought within the applicable
period of limitations.  There is no dispute that as to Sherwin the three-year statute
of limitations for medical malpractice, id.  2902, began running when Sherwin
read Garland's x-ray on June 18, 1996.  Pursuant to 24 M.R.S.A.  2859,{1} the
period of limitations is tolled from the date of the filing of a notice of claim until
thirty days after a claimant receives notice of the prelitigation screening panel's
findings.  Thus, as to Garland's claim against Sherwin, the period of tolling ended
on January 5, 2001, which was thirty days after Garland received notice of the
screening panel's findings.  The statute of limitations began running again on that
date, and ninety-six days elapsed before his complaint against Sherwin was filed
on April 11.  

	[5]  The issue on appeal is which notice of claim began the tolling.  If it
was the amended notice dated March 29, 1999, the first to mention Sherwin, then
the complaint was fifteen days late because only eighty-one days remained in the
limitations period after January 5.  However, if it was the original notice of
August 28, 1998, the complaint was timely because 294 days remained in the
limitations period.

	[6]  Garland argues that his original notice of claim filed on August 28,
1998, although it was not served on Sherwin and did not mention him or allege
any negligence connected to the June 18 x-ray, is the operative notice for purposes
of the statute of limitations.  He first contends that section 2859 dictates that the
filing of any notice of claim tolls the statute of limitations as to all potential
defendants.  The statutory scheme provides no support for this contention.  On the
contrary, "[t]he claimant must serve the notice of claim on the person accused of
professional negligence."  24 M.R.S.A.  2853(1)(B).  The original notice of
claim was addressed to Warner and MRI Associates and was never served on
Sherwin.  It could not qualify as the notice of claim that tolled the statute of
limitations with respect to Sherwin pursuant to section 2859.{2}   

	[7]   Garland also contends that 24 M.R.S.A.  2853(6), which requires
the prelitigation screening panel to hold a combined hearing for all claims arising
out of the same facts, compels the first notice of claim to be the operative notice
for tolling purposes.  The procedural requirement of a combined prelitigation
hearing, however, has no bearing on the tolling of the statute of limitations.  

	[8] Finally, Garland argues that the amended notice of claim against
Sherwin related back to the date of filing of the original notice of claim, and he
analogizes to M.R. Civ. P. 15(c),{3} although he acknowledges that Rule 15 does
not apply because a notice of claim is not a pleading.  M.R. Civ. P. 7(a); Lee v.
Maier, 1999 ME 62,  14-15, 728 A.2d 154, 157-58.  Even if Rule 15(c)
applied, Garland has not met the requirements of that rule.  The claim against
Sherwin, which arose out of reading the x-ray in June, did not arise out the same
conduct, transaction, or occurrence as the claim against Warner and MRI
Associates in September, and, thus, Rule 15(c)(2) is not met.  In situations such as
this one where a new party is added by the amended pleading, Rule 15(c)(3)
requires that the new party have received notice of the institution of the action
within the time period for service of the summons and complaint.  There is no
evidence that within the ninety days for service set forth in 24 M.R.S.A.
 2853(1)(B), after the original notice was filed, Sherwin had any notice that the
original claim had been brought, or knew or should have known that the claim
would have been brought against him but for a mistake concerning his identity. 
In fact, there is no evidence that there was such a mistake.  A conscious choice to
sue one party rather than another, or a lack of knowledge of who is the correct
defendant, is not a "mistake concerning the identity of the proper party." See 3
Moore's Federal Practice  15.19[3][d] (3d ed. 2001).

	[9]  The statute of limitations on Garland's claim against Sherwin was not
tolled until Garland filed his notice of claim against Sherwin, and his claim is
barred.  Garland's other arguments on appeal do not merit discussion.

	The entry is:

			Judgment affirmed.
________________________________________

Attorneys for the plaintffs:

John H. O'Neil, Esq.       (orally)
Robert H. Furbish, Esq.
Smith, Elliott, Smith & Garmey, P.A.
100 Commercial St. 
P.O. Box 442
Portland, Maine 04112

Attorney for the defendant:

Paul F. Macri, Esq.     	 (orally)
Berman & Simmons, P.A.
129 Lisbon St.
P.O. Box 961
Lewiston, Maine 04243 

FOOTNOTES******************************** {1} . Title 24 M.R.S.A. 2859 (2000) provides: "The applicable statute of limitations concerning actions for professional negligence is tolled from the date upon which notice of claim is served or filed in Superior Court until 30 days following the day upon which the claimant receives notice of the findings of the panel." {2} . Two cases decided under the former version of the Health Security Act reinforce this interpretation. In Givertz v. Maine Medical Center, 459 A.2d 548, 552 (Me. 1983), we held that a defective notice of claim given under the Maine Tort Claims Act to a state hospital was not an effective substitute for the medical malpractice notice of claim to an individual doctor; because the Health Security Act required notice to the doctor personally, the filing of a notice against another prospective defendant could not toll the statute of limitations. In Paradis v. Webber Hospital, 409 A.2d 672, 676 (Me. 1979), we held that a notice of claim that did not comply with the requirements of the statute, because it was not under oath, did not toll the statute of limitations. {3} . M.R. Civ. P. 15(c) states in pertinent part: An amendment of a pleading relates back to the date of the original pleading when . . . . (2) the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party . . . against whom a claim is asserted if the condition of paragraph (2) of this subdivision is satisfied and, within the period . . . for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.