Wednesday, April 2, 2008

Have a Heart!

We got the decision on Valentine's Day in 2008: the Maine Supreme Court would not allow my son a trial in his medical malpractice case. We had appealed the Androscoggin Superior Court grant, by Justice Ellen Gorman. of summary judgment to defendants - the physicians who treated Aaron. We asked the Maine Supreme Court to be present... asked for "oral arguments." But they ruled on the case and sent it to us by mail. Here's footnote # 4 of the Maine Supreme Court decision, Aaron Michaud v. Blue Hill Memorial et al:

"Michaud sought oral argument in this matter to argue the facts in support of his claim. Because Michaud failed to present those facts to the Superior Court through the presentation of expert opinion and a supported statement of material facts, oral argument would not have benefited Michaud."

But we had submitted expert opinion! Furthermore, a jury might rule in favor of a plaintiff after hearing what the defendants' experts had to say.
Summary judgment is only appropriate in cases where the facts are totally one-sided; in cases where if a trial was held, one party would no doubt win. This was not the case; or if it was... the judgment should have gone in Aaron's favor! My son didn't have a dislocated arm, but a fracture, and physicians failed to detect it. Treatment included hanging weights from his arm (up to 35 pounds) for about 40 minutes, and wrapping a bed sheet around his arm and around each of them and pulling on it. At that time there was a "pop" heard. By the end of the night, their attempts to put the bone (which was never out of its joint) back into place, caused the bone pieces to move apart. A specialist was called in. Aaron needed surgery, and pinning of the bone pieces. An obvious misdiagnosis does not prove negligence, but it should at least get a person a trial!

The right to a fair trial is essential to the protection of liberty! Aaron's injury happened in 2000. Where's the speedy trial? We're pro se, without an attorney. We had an attorney on the case initially, but after an unfavorable vote by a pre-litigation panel, he dropped us. He had been hoping for a settlement, and never intended to file a lawsuit if we didn't get it. I knew this from the start. I have nothing against the guy. He was up front with us, and he did a good job while he had the case. I chose him because nobody else would take it.

At first when I began calling lawyers, I couldn't believe none would take our case. Over the years, I've figured out why. They know the chances of winning a case are slim. The medical malpractice prelitigation panels in other states have been abolished after findings that the panels are an unconstitutional delay in a person's right to trial. Legislation was enacted by the 108th Legislature in 1977... the Maine Health Security Act. Panels were optional then. However in 1990 and 1996 additional statutes made the panel mandatory before a case could be tried in court. The panel's decision is supposed to encourage settling cases outside of court; but it simply discourages all claims. The panel almost always votes in favor of the medical professionals; and the way the panel's decision is allowed to be reported to a jury - at the discretion of the medical professionals - is totally unfair to plaintiffs.

I quote the chief justice of the Maine Supreme Court, Leigh Saufley, in a June 07, 2007 Maine Supreme Court decision, James Edward Smith v. Katherine Hawthorne, regarding the manner the panel's findings are allowed to be submitted:

"Even the plain language of the statute no longer guides the parties, having been overwritten by the Court on multiple occasions."

She called the process of arguing a case before the panel:

"a cumbersome process with unpredictable results that costs both plaintiffs and defendants money and time in a way that was not intended by the Legislature."

Nonetheless, Saufley was one of the majority who ruled in favor of the physician... reversing a previous jury award of $140,000 to the plaintiff after a few trials. I've provided a link to that 2007 decision.

Jury decisions are not supposed to be touched unless there's been clear error and an obvious injustice! Dennis Dechaine supporters know the difficulties involved in getting a jury decision overturned; they've been trying for 20 years! The Madawaska man is serving a life sentence for a murder which many feel he didn't commit. The many errors in the investigation and trial are detailed in the link, Trial and Error. Yet Dennis hasn't been unable to get the state to give him another trial.

There's case law in the United States Supreme Court which says judges have to give pro se litigants a little leeway in filing difficult motions like the opposition to defendants' summary judgment which I filed for my son. My paperwork was clear and concise. If there was a problem with it, Judge Gorman could have asked me to correct it... judges typically do that.

In Maine, the governor (executive branch) does the appointing and reaapointing of judges (judicial branch), and the legislative branch confirms them... the only state in which judges are chosen in this manner, I believe. Now get this: I tried to get Governor Baldacci and Susan Collins to help with the due process rights violations. They wrote back saying they couldn't get involved because of "Separation of Powers." Citizens in other states vote judges in like they do their politicians, but that isn't foolproof either.

Circumstantial evidence and an overly-ambitious prosecutor from the attorney general's office (Eric Wright) sealed Dennis Dechaine's fate. There's no parole in Maine. His life sentence means death in prison, unless he's freed.

"We know that if the rights of one man are denied, the rights of all are endangered."

~Bobby Kennedy

DNA which was found on the victim did not match Dennis'. He had tried to get DNA testing done before his trial two decades ago, but the judge wouldn't allow it... he said it would take too long to get the results back. Though legislation which took effect in 2006, changed the laws in Maine which had made it nearly impossible to get the decision changed unless the real killer was identified, a certain provision which would have kept the judge who ruled in the case originally, Carl Bradford, from ruling again in it, was taken out of the bill at the last minute.

I wrote to The Committee for Judicial Responsibility and Disability regarding three different decisions... one of them which had come from the Maine Supreme Court. Each complaint was dismissed. The committee's budget is determined by the Maine Supreme Court. Do you think committee members will ever bite the hand which feeds them? According to HALT (Help Abolish Judicial Tyranny), Maine gets a flunking grade regarding judicial accountability. Check out the link!

One of the decisions I wanted the Committee to look at was one which was made against our construction company in a "contract" case. Paperwork which Judge Rae Ann French called a "contract", did not contain price, description of work, or mutual consent! That paperwork was nothing but a generic agreement to agree. It became our exhibit # one, and it was dated December 17, 2003. Now here is the decision of Judge Rae Ann French:


Plaintiff signed a contract agreeing to a piecemeal price but did not determine the amount he would receive until after the job was completed. The piecemeal rate was less than the cost plaintiff incurred to finish the job in a workmanlike manner. Plaintiff is bound by the contract which refers to the fixed price in defendant’s exhibit 4.

Take a look at the 2004 Superior Court decision by Judge Don Marden in that "PJM" case. Defendant's exhibit # 4 is a price book, dated in 2004, which didn't even exist when the judge said we signed an agreement to work according to it, which was Plaintiff's exhibit # 1, signed on December 17, 2003!. Furthermore my husband and I testified that we didn't have the price book in our possession, and requests for it (almost daily), went ananswered by defendant. We never agreed to any price; the so-called "contract" was defendant's paperwork, should have been construed against him, and even stated in it that he was to provide pricing before each job. He failed to do that. What we had was an implied contract, and ... well, you'll read more about it in the book. The case got to Maine Supreme Court in 2005, and we had a lawyer write our brief. The case was scheduled for a hearing without the parties present. They call that "on the briefs," or "without oral arguments." The Supreme Court of Maine affirmed the decision.

In small claims court, the hearing hadn't been recorded, and the judges used this against us in order to justify their decisions... though the exhibits (a total of ten) are a preponderance of evidence which support a judgment in our favor. At the District Court hearing, we asked for certain information which we knew existed, and which would have proved the value of our work was much more than what the defendant paid us. The judge ordered the defendant to produce this evidence, but when he didn't, she did nothing. Contempt of court is punishable with a fine of up to $10,000 or jail time, or a combination of the two. A judge has the discretion to rule against a party who has committed contempt of court, without any further questions.

Pro bono groups wouldn't help us. I later discovered that one reason why is probably because they receive much of their funding from donations by lawyers, law firms, and judges. The Campaign for Justice does the collection work for these legal assistance groups. Quoting from the Campaign's website:

More experienced members of the bench and bar will be asked to contribute at the leadership level of $1000 or more per year.

The same type of cozy relationships exist between lawyers and the Maine Board of Overseers of the Bar Association. I filed a complaint against Attorney Rapaport, who had requested summary judgment though his clients had filed notarized statements with the court, in response to the malpractice claim, stating "there exists a valid claim to be made in this matter." The admission of valid claim by defendants was part of my brief to the Maine Supreme Court, and of my complaint to the Overseers of the Bar, which also dismissed my complaint. I found the following message at the Maine Bar Foundation’s website in their 2006 annual report, on page two below a photo of the Board of Directors:



Special thanks to Preti, Flaherty,

Beliveau & Pachios, LLP

for the use of their offices.


By the way, the insurance company my son is up against is Medical Mutual Insurance Company of Maine. They provide medical malpractice liability insurance to physicians in Maine, and throughout New England. It's physician-owned... that means physicians get premiums returned to them when the company has a good year - when plaintiff claims are kept down. From Medical Mutual's website, I discovered in a statement made by the CEO, Terrance Sheehan, in a video clip at their website, that in 15 years a total of 19 million dollars was given back to medical providers, all at the cost of unsuccessful victims of malpractice! From a website of biographies of the Maine Supreme Court justices, I discovered that Justice Gorman's partner, Mark Eule, is an M.D. Wouldn't it be considered a "conflict of interest" for her to rule in a medical malpractice case? The medical community is in bed with the legal community! Like I said "It's difficult to win a medical malpractice case... or even get one to trial!

The following paragraphs are from the dissenting opinion of Justice Donald G. Alexander, with whom Justice Silver joined, in the case mentioned earlier: Edward Smith v. Katherine Hawthorne:

[¶31] The Court holds that the Superior Court erred in following the direction of our opinion issued little more than a year ago. To accomplish this, the Court reaches out to interpret the Maine Health Security Act, 24 M.R.S. § 2857(1)(C) (2006), to give negligent doctors a veto over whether unanimous findings may be presented to a jury. From this interpretation, I respectfully dissent.

[¶32] This appeal follows the third jury trial on the Smiths’ complaint for medical malpractice. In requiring a fourth jury trial on the same cause of action, the Court will be ordering an event that may be unique in Maine jurisprudence. This case demonstrates the difficult, costly, and time-consuming burdens an individual must overcome to recover for injuries caused by negligent doctors and why it is economically impossible to seek redress for any but the most severe injuries caused by medical negligence.

No comments:

Post a Comment