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DUTIL V. BURNS 1997 ME 1
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MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision: 1997 ME 1
Submitted on briefs October 16, 1996
Decided January 3, 1997
PANEL: WATHEN, C.J., and GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.
ROBIN DUTIL v. JOHN BURNS
[¶1] Plaintiff, Robin Dutil, appeals from an order of the Superior
Court (Kennebec County, Alexander, J.) granting defendant John Burns's motion
to dismiss plaintiff's notice of claim for professional negligence. Plaintiff
argues on appeal, inter alia, that the court erred in barring her claim
on the basis of the doctrine of res judicata and the statute of limitations.
We agree and vacate the judgment.
[¶2] The history of plaintiff's efforts to sue defendant may be briefly
summarized as follows: In January of 1995, plaintiff filed a suit in the
Superior Court against defendant, an oral surgeon, alleging that she was
injured by a defective temporomandibular joint, or jawbone implant, sold
and surgically implanted by him. The complaint sought recovery on theories
of strict liability, breach of warranty, and negligent sale. The court granted
defendant's motion to dismiss that complaint for failure to state a claim
upon which relief could be granted. On appeal, we affirmed the dismissal
ruling that the claim was an action for professional negligence governed
by the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2985 (1990
& Supp. 1996). Dutil v. Burns, 674 A.2d 910 (Me. 1996). The Act requires
that all claims against medical providers be preceded by a notice of claim
and screening by a prelitigation panel. 24 M.R.S.A. §§ 2851-2859,
[¶3] In June of 1995, while the first action was still pending, plaintiff
sent a notice of claim to defendant. The notice is couched in terms of professional
negligence rather than products liability and includes allegations that
defendant misrepresented plaintiff's condition and the cause of her injuries.
After the notice was filed in the Superior Court and assigned to a prelitigation
screening panel, defendant moved to dismiss the notice of claim pursuant
to M.R. Civ. P. 12(b)(6) for failure to state a claim. Defendant attached
a memorandum of law to the motion and asserted the affirmative defenses
of res judicata and the statute of limitations. Plaintiff responded by a
memorandum arguing that res judicata does not apply and that the statute
of limitations is extended by virtue of defendant's fraudulent concealment
of information pursuant to 14 M.R.S.A. § 859 (Supp. 1996).
[¶4] The Superior Court scheduled a hearing on the motion to dismiss,
and the parties now agree that neither received notice of that hearing.
In any event, neither party was present for the hearing and the docket entry
states: "Case to be dismissed as nobody appeared for hearing."
The order of dismissal provides: "After having carefully reviewed Defendant's
Motion to Dismiss and the witness admissions filed therewith, it is hereby
Ordered: Defendant's Motion to Dismiss is granted. Plaintiff's Notice of
Claim is dismissed." Plaintiff moved for findings of fact and conclusions
of law and the court denied the motion stating: "The Notice of Claim
was dismissed as a matter of law--res judicata and statute of limitations;
therefore no findings are required. Motion denied." From these orders,
plaintiff appeals. [¶5] Plaintiff argues that the dismissal of her
first complaint on procedural grounds does not bar the present action for
professional negligence. We agree. We have described the doctrine of res
judicata in the following terms: The effect of the prior decision on the
present action is a question of law . . . . [T]he doctrine of res judicata
bars the relitigation in a present action of all issues that were tried,
or may have been tried, in a prior action if: (1) the same parties or their
privies are involved in both actions; (2) a valid final judgment was entered
in the prior action; and 3) the matters present for decision now were, or
might have been, litigated in the prior action. Currier v. Cyr, 570 A.2d
1205, 1207-08 (Me. 1990). An order of dismissal for failure to state a claim
is technically an adjudication on the merits unless, as is usually the case,
leave is granted to amend the complaint. 1 Field, McKusick & Wroth,
Maine Civil Practice § 12.11 at 119 (2d.ed. Supp. 1981). Defendant's
motion to dismiss the first action, although styled as a 12(b)(6) motion,
challenged plaintiff's failure to comply with the statutory prerequisites
for maintaining an action for professional negligence. The dismissal for
failure to comply with the statutory procedure is akin to a dismissal for
insufficient service of process or lack of subject matter jurisdiction,
and does not serve as an adjudication of the merits. The Superior Court
erred in applying the bar of res judicata. The dismissal in the first action
was premised on procedural defects and did not result in a final judgment
on the merits.
[¶6] Plaintiff also argues that the court erred in concluding that
her claim is barred by the three year statute of limitations applicable
to actions for professional negligence. 24 M.R.S.A. § 2902. She argues,
as she did in the memorandum filed with the trial court, that her notice
of claim alleges misrepresentation and fraudulent concealment of material
facts that prevented her from discovering her injury. Accordingly, she claims
the benefit of the extended limitation provided by 14 M.R.S.A. § 859
for cases in which the cause of action is fraudulently concealed. Defendant
argues in response that, even if all the allegations in plaintiff's notice
of claim are taken as true, plaintiff has failed to set forth sufficient
evidence of fraudulent concealment. Defendant argues he may have been medically
negligent in recommending a conservative course of treatment instead of
recommending immediate removal of the implant, but he contends that simple
negligence cannot be considered "fraudulent concealment." Moreover,
he argues, plaintiff has failed to satisfy the special pleading requirements
for allegations of fraud set forth in M.R. Civ. P. 9(b).
[¶7] Defendant's argument ignores the fact that plaintiff's claim
has not yet reached the stage where pleadings are required. The rules of
pleading apply to complaints but have no direct application to a notice
of claim. The statute that imposes the notice of claim requirement provides
only that the notice shall set forth in writing "under oath, the professional
negligence alleged and the nature and circumstances of the injuries and
damages alleged." 24 M.R.S.A. § 2903(1)(A). The Superior Court
erred in evaluating the sufficiency of the allegations in the notice of
claim by relying on the pleading requirements applicable to a complaint.
On this record and at this procedural stage, there are unresolved factual
issues and no basis for the court to rule as a matter of law on the application
of the statute of limitations.
The entry is: Judgment vacated. Remanded for further proceedings consistent
with the opinion herein.
Attorney for plaintiffs:
Philip P. Mancini, Esq.
CLOUTIER & BRIGGS, P.A.
247 Commerical Street
Rockport, ME 04856-5964
Attorney for defendants:
Christopher D. Nyhan, Esq.
PRETI, FLAHERTY, BELIVEAU &PACHIOS, LLC
443 Congress Street Portland,