Lawrence R. Kaplan, MD, of Cape Elizabeth is a retired gastroenterologist and former Massachusetts hospital CEO.

Medical malpractice litigation in Maine is a Byzantine system of financial hurdles clearly designed to protect insurance companies and members of professional medical societies from legitimate claims.

Maine first requires all litigants to go through a “pre-litigation” screening of all potential malpractice lawsuits. The screening panel consists of a chair appointed by the chief justice of the Superior Court, one attorney and one health care practitioner chosen by the chair. The panel then reviews all relevant medical records and hears testimony from the parties and their medical experts.

If the plaintiff is not represented by an attorney on a contingency basis, the plaintiff is required to pay legal fees, expert witnesses and ancillary costs. Within 30 days, the panel issues a nonbinding opinion on the viability of the plaintiff’s case. The plaintiff must then decide whether or not to proceed with a jury trial, with all the legal costs attendant with that decision. 

Plaintiff attorneys working on a contingency basis will only accept the most egregious of damage claims, leaving the vast majority of aggrieved patients with no alternative but to assume tens of thousands of dollars in legal fees to reach a favorable jury verdict or drop their claims. Under these conditions, medical insurance companies see little reason to settle out of court. 

I recently got caught up in this legal web of Maine’s malpractice law where medical personnel and their employers are shielded from taking responsibility for their negligent actions.

A few years ago, I contacted my Portland optometrist who I had seen for several years after noticing a “black blob” in my left eye. He gave me a thorough examination, attached a benign diagnosis to my complaint, and stated on my chart that there was “no reason for follow-up.”

Three months later, after the “black blob” persisted in my line of vision, I returned for further evaluation. He quickly diagnosed me with wet macular degeneration, a condition that destroys one’s central vision in the affected eye, and immediately referred me to an ophthalmologist for intraocular injections. The delay in three months of diagnosis resulted in significant loss of vision in my left eye.

As a physician who has served as an expert witness both for plaintiffs and for defendants in a number of medical malpractice cases, I have no doubt that this optometrist was negligent in his diagnosis. However, his negligent act does not mean he is an incompetent practitioner, nor should he lose his license; he just made a mistake for which he should take responsibility.

After I filed a complaint with the Maine Board of Optometry, a “Letter of Guidance” was issued reminding the optometrist “of the importance of observing standards of care relative to comprehensive imaging and follow-up based on patient complaints.”

Understanding the barrier of Maine’s medical malpractice laws to compensation, I wrote the optometrist’s medical practice administrator requesting that the practice contribute $10,000 to the South Portland Food Cupboard in lieu of a lawsuit. Her reply was, as my millennial sons would say, “Pound sand.”

I have since learned from a number of lawyers that there are thousands of Maine residents who have suffered negligent actions by medical personnel but have no affordable recourse to legal action. 

It’s time that the Maine Legislature rectify this imbalance between patients and treating providers in a fair and equitable manner. As a quick and relatively affordable alternative to a jury trial, some states have experimented with health courts to address medical malpractice claims under $25,000 using an administrative process.

Rather than proving negligence, plaintiffs must demonstrate that their injury could have been avoided by following best practices. Health courts can reduce administrative costs and facilitate access to reasonable compensation for injured patients.