By Matthew T. Mehalic, Esq., CPCU

In Randy N. Oliver, II et al. v. Eastern Maine Medical Center, 2018 ME 123 (August 21, 2018), the Law Court addressed whether EMMC was negligent when it discharged an individual despite contrary instructions given by the individual’s limited guardians to the hospital.  The Superior Court entered judgment in favor of EMMC and the Law Court affirmed holding that EMMC was not negligent.

The case arose out of the hospitalization of an individual, Randy Oliver.  Randy was found severely intoxicated at his home and was taken to EMMC by his daughter and his ex-wife.  The conditions of Randy’s home were unsanitary, there was no running water, and there were a number of fire hazards.  Randy was admitted with diagnoses of liver-related brain damage, possible alcohol withdrawal, deterioration of functional status, and a neglected state.  He also had burns on his hands.  The day after his admission, a psychiatrist conducted an evaluation of Randy, at which Randy expressed that he did not understand why he was at the hospital.  The evaluation concluded that Randy’s alcohol addiction was potentially lethal, that he suffered from significant cognitive impairment, and that a guardian might need to be appointed.  About a week later another evaluation was performed by a neuropsychologist that concluded that Randy lacked the capacity to manage simple or complex finances independently or make informed decision about his health.

Randy’s son and daughter filed a petition with the Probate Court to be appointed Randy’s co-guardians.  After a hearing Randy’s son and daughter were appointed as co-guardians.  However, the appointment was limited in that the guardians were authorized to “act only as necessitated by [Randy’s] actual mental and adaptive limitations or other conditions warranting this procedure.”  Id. at ¶ 9.

Over the course of Randy’s two month hospitalization his condition improved and he expressed that he wanted to leave the hospital.  Another neuropsychological evaluation was performed.  The evaluation indicated that Randy was alert, friendly, pleasant, and very cooperative.  Randy was noted as “strikingly different” from the earlier evaluation.  It was concluded that Randy had the capacity to “manage simple or complex finances independently” and “make better informed decisions regarding his health.”  Id. at ¶ 10.  Randy had also indicated that he planned to quit drinking.

Based on the evaluation, EMMC concluded that Randy “no longer needed acute medical care and that the hospital was possibly holding him there against his will.”  Id. at ¶ 11.  Randy’s son and daughter, his limited guardians, disagreed with the evaluation findings and disapproved of Randy’s discharge from the hospital.  EMMC offered to have another evaluation performed by another practitioner, but the guardians informed EMMC that they did not want another evaluation.  EMMC ultimately discharged Randy based on the Probate Court’s order providing limited guardianship to Randy’s son and daughter only where Randy was unable of making decisions and Randy’s request to be discharged.  When Randy was discharged a plan was generated that included a referral to Randy’s primary care provider, a pain clinic, community case management, and a recommendation to participate in substance abuse treatment.  Randy’s son and daughter were informed by EMMC of Randy’s discharge on the date of discharge.

Randy’s son and daughter visited Randy twice over the course of the night and when they left him the last time he was intoxicated.  Randy died later that night as the result of a fire.

Randy’s son and daughter, individually and as personal representatives of the estate filed a complaint in the Superior Court against EMMC based on negligence for breach of the standard of care.  Judgment was entered in favor of EMMC.  An appeal was filed by Randy’s son and daughter.

The issues raised on appeal were whether the Superior Court erred in: (1) “concluding that the Probate Court’s guardianship order did not preclude EMMC from discharging Randy, given the contrary instructions they had given in their capacity as Randy’s court-appointed guardians”; (2) “concluding that Randy had regained capacity to make the decision to be discharged”; and (3) “concluding that EMMC’s discharge plan was reasonable.”  Id. at ¶ 26.

With regard to the first issue, the Law Court held that the Superior Court was correct in concluding that the Probate Court guardianship order did not preclude EMMC from discharging Randy.  The guardianship order was a limited guardianship order, pursuant to 18-A M.R.S. § 5-105.  This section allows appointment of a guardian with fewer than all of the legal powers and duties of a guardian.  In addressing healthcare decisions, per the Probate Code, the limited guardian is to make decisions in accordance with the ward’s individual instructions when the ward has capacity.  See 18-A M.R.S. § 5-312(a)(3).  Furthermore, the healthcare provider, per the Uniform Healthcare Decisions Act contained within the Probate Code, is to presume capacity and when capacity is lacking if the individual regains capacity the healthcare provider is to communicate the determination to the patient and any other person authorized to make decisions on behalf of the patient.  Because of the determination by the healthcare provider that Randy had regained capacity and because of the limited scope of the Probate Court guardianship order, EMMC was not precluded from discharging Randy.

In regards to the second issue, the Court concluded that EMMC met the standard of care involved in concluding that Randy regained capacity.  Having the same neuropsychologist evaluate Randy upon the initial admission and almost two months later in order to compare the condition of Randy met the standard of care.  Also, the other EMMC providers that had interacted with Randy during his hospitalization also concluded that he had regained capacity.  The medical records supported Randy’s improvement and regaining of capacity.  The expert witnesses called by EMMC to testify also supported that the EMMC met the standard of care for evaluating whether Randy had regained capacity to make the decision to be discharged.

Finally, with regards to the third issue, the Court concluded that the discharge plan was safe and reasonable.  Appointments were scheduled for Randy to a pain clinic and his primary care physician.  Information was provided for case management services.  EMMC also gave strong recommendations that Randy stop drinking, attend group meetings, and EMMC even offered substance abuse counseling.  Randy’s acknowledgment that he needed to stop drinking was evidence that the discharge plan was appropriate.  Therefore, the discharge plan was held to be safe and reasonable and not negligent.  Judgment in EMMC’s favor was affirmed.

Another issue involved in the appeal, was whether the Superior Court had erred when it refused to award EMMC its expert costs incurred during the medical malpractice prelitigation screening panel process.  Title 14 M.R.S. § 1502-C allows the courts within their discretion to award reasonable expert witness fees and expenses as allowed under 16 M.R.S. § 251.  Section 251 provides in pertinent part, “The court in its discretion may allow at the trial of any cause, civil or criminal, in the Supreme Judicial Court, the Superior Court or the District Court, a reasonable sum for each day’s attendance of any expert witness or witnesses at the trial.”  Due to the confinement of section 251 to “trial” in a court, the Law Court held that the prelitigation screening panel proceeding was not a “trial” that permitted the courts to award expert witness fees and expenses incurred in the panel proceeding.