Superior Court Justice Williams Anderson goes over the details of a criminal case at the Penobscot Judicial Center on Dec. 28, 2020. Maine's court system is being sued over secret rulings in cases against doctors and medical professionals. Credit: Natalie Williams / BDN

AUGUSTA, Maine — A medical malpractice law firm is suing Maine courts in a bid to end secret judicial rulings in cases against doctors and medical professionals accused of harming patients.

The lawsuit filed in U.S. District Court last week by Gideon Asen, a New Gloucester law firm, argues that sealing Superior Court opinions from malpractice panels is unconstitutional and asks a federal judge to overturn part of a 1986 law that keeps those rulings out of court records, making it difficult for lawyers and impossible for the public to know how cases are handled.

Maine is one of 17 states that uses a prelitigation screening panel for medical malpractice cases, according to the National Conference of State Legislatures, meaning cases are reviewed by a set of experts before possibly going to trial. In most states, testimony and evidence brought forward in those proceedings is a public record and is admissible in court if the plaintiff chooses to litigate the case.

In Maine, only the outcome of the proceedings — the panel’s determination on whether the health care providers violated accepted standards of care — is presented in court. If the case is settled or withdrawn during or immediately after the proceedings, there may be no court records. Participants, including lawyers and doctors, are not allowed to discuss what happened in the proceedings. Any legal decisions handed down by a judge are sealed.

The lawsuit challenges only one aspect of the proceedings, arguing that in cases where the panel asks a Superior Court judge to decide on a legal issue, the decision should become a public record. It argues that the sealed opinions violate the right of public access to court documents under the First and 14th Amendments.

“Judges paid by taxpayers are writing opinions that are secret, which is antithetical to our system,” said Taylor Asen of Gideon Asen, who is representing the law firm along with Anthony Moffa, a University of Maine School of Law professor.

In recent years, Maine has seen an average of about 85 medical malpractice cases filed each year, according to testimony presented to the Legislature this year. Since 2015, an average of $17.2 million has been paid out in medical malpractice lawsuits in Maine each year, according to the National Practitioner Data Bank, a federal database where providers are required to report malpractice payments.

The lawsuit argues that published legal decisions play an important role in shaping the understanding of law in cases in which a plaintiff is seeking damages. Such decisions are generally public, with decisions from malpractice panels being a notable exception.

In addition to concerns about transparency, the secrecy of the Superior Court opinions during the panel proceedings has practical implications for malpractice lawyers and their clients, Asen argues. Under Maine law, the statute of limitations for medical malpractice is usually three years but can be extended if a patient shows their health care provider was hiding information about the alleged malpractice, a legal concept known as fraudulent concealment.

A lawyer planning to argue fraudulent concealment would typically want to view previous judges’ opinions on the issue to determine if the argument was likely to work for their client, Asen said. But in the panel phase of a medical malpractice case, that is not possible.

Maine Superior Court Chief Justice Robert Mullen and State Court Administrator James Glessner are named as defendants in the Gideon Asen lawsuit. A spokesperson for the state court system said it could not comment on pending litigation.