William Lucas was a Navy guy. When his back started to hurt in retirement, doctors and his family chalked it up to decades of physical labor, loading heavy bombs and ammunition onto planes.

When he was around 73 years old, he noticed blood in his urine. His primary care provider arranged for a biopsy. A pathologist determined in March 2015 that Lucas didn’t have cancer.

He was preparing for back surgery three years later when he received some bad news. Doctors couldn’t proceed with the procedure because he had metastatic bladder cancer that had spread to his bones.

Lucas was officially diagnosed in May 2018 and died that June. What seemed like a sudden illness to his daughter, Robyn Barnes, had actually been progressing for at least three years. Barnes says she was told in 2019, after connecting with a medical malpractice attorney, that the pathologist who reviewed her father’s biopsy in 2015 had misread the results. If Lucas had known then that he had cancer, it could have been treated.

Barnes had everything she needed to sue for medical negligence.

But in Maine, the three-year statute of limitations starts when the negligence occurs. By the time Barnes discovered what happened, she had already missed her chance.

“We couldn’t hold these people accountable because of a three-year rule,” Barnes said. “How anybody would expect us to do that, to be able to figure that out in three years when nobody else figured it out? I mean, my father died before we got the opportunity to figure it out.”

A bill in the Maine Legislature would start the clock when a patient discovers the negligence – and help people like Barnes whose loved ones have died from a mistreated or undiagnosed slow-moving illness.

“Maybe some other family will be able to survive this,” Barnes said.

The bill is not retroactive. Even if the law were to take effect, Barnes would still be barred from suing for her father’s undiagnosed cancer.

‘A LIMITLESS STANDARD’ 

Representatives of Maine’s health care industry say the current statute of limitations ensures that defendants in malpractice suits have access to timely records and potential witnesses.

Jeffrey Austin, vice president of government affairs and communications for the Maine Hospital Association, said the later a claim is filed the more memories fade, documents are harder to retrieve, and people are more likely to have moved away or died.

For hospitals, Austin said that means treating every patient interaction as if they could be sued more than three years from now. That requires spending more money on a longer-term insurance plan for liability, and on maintaining patient records. For smaller health care sites this could be even more expensive and snowball into higher costs for patients, Austin said.

“To have a limitless standard, we have to be ready for a limitless standard,” Austin said. “Even if they’re very rare, we have to treat any patient encounter and all the records associated with that, as if it could be the subject of a lawsuit from 25 years from now.”

Dan Morin, the Maine Medical Association’s director of communications and government affairs, called it a “sneaky bill” that he argued would make any statute of limitations for medical negligence irrelevant.

“Because it allows someone to file a lawsuit at any time in their life after receiving medical treatment,” Morin said.

The three-year limit creates stability, he said. So does a state screening board for medical malpractice claims, which would still exist if L.D. 549 were signed into law.

Morin said the bill would drive up liability insurance costs and that could discourage doctors, nurse practitioners and other medical professionals from working in the state.

“I understand there are some horrible cases of people who may have fallen out of this statute of limitations proposal,” Morin said. “Should we find ways for them to go through the process? Absolutely, but this bill isn’t the way to do it.”

The bill’s sponsor, Rep. Matt Moonen, D-Portland, said the legislation does not create a “limitless” system where people have an indefinite amount of time to sue.

He said anyone who has a claim still would have only three years to file – it would just change when that clock starts.

“At the end of the day, I hope my colleagues will see these people were harmed and they deserve better than what they’re getting right now,” Moonen said.

‘IT DIDN’T HAVE TO HAPPEN’ 

Attorneys who help bring these claims say medical negligence cases are rarer than they seem. In 2022, 52 medical malpractice claims were filed in Maine, according to data from the Maine judicial branch.

Taylor Asen, the attorney who initially helped Barnes identify her claim in 2019, said these cases are already difficult and expensive to prove.

Asen said his firm has taken less than 1% of the potential malpractice claims they’ve received in the last two and a half years. But he thinks they are an important way to put the health care industry on notice when something goes wrong. And Barnes isn’t the first person he’s talked to who has run out of time to file a medical negligence claim.

In written comments submitted to lawmakers, Asen wrote about a client who was screened for prostate cancer in January 2016. This person tested at a level more than three times what would require a follow-up – but because of a systems error at his primary care provider’s office, the doctor failed to notify him of these results. He received an official diagnosis four years later when the cancer had spread beyond his prostate and became life-threatening.

However, their complaint was able to proceed under the continuing negligent treatment doctrine, which Asen said is challenging to prove and rarely granted.

“There’s a way in which going through this process makes you feel heard and makes you feel like people are accountable,” Asen said. “Having a system where people can make mistakes and there’s nothing you can do to hold them accountable is a very scary thing.”

Barnes, who declined to name the hospital and pathology lab that worked with her father in 2015, said being unable to file a lawsuit is unfair.

Just like her father was the kind of person who did everything his doctors asked him to, Barnes said she did everything she could to assemble her case. She located hundreds of medical records, wrote a letter to an attorney, and did so as soon as she could after her father’s funeral. After Barnes learned she had run out of time to sue, she planned to meet with her father’s care providers to share what she found – but then the pandemic struck.

“I just wanted there not to be another family that had to go through this,” Barnes said. “Even after we ended up having to put it on the shelf, because of the timeframe … I just wanted them to know that my father had a name and was a person. I wanted to say to them, ‘It didn’t have to happen.'”

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