Law Firm’s Suit for Access to Maine Medical Opinions Tossed

A Maine law firm will have to go to state court to pursue a lawsuit alleging it’s been unlawfully denied access to court opinions requested by the state’s medical malpractice screening panel, a federal court said.

The U.S. District Court for the District of Maine won’t decide if the state courts’ alleged practice of sealing opinions issued at the board’s request violates the First Amendment right of access. The case was filed by Gideon Asen LLC, a firm specializing in medical malpractice cases.

The case involves an unsettled question of state law, and “a federal court should stay its hand” when a federal constitutional question depends on such a question, the court said.

Under Maine law, a medical malpractice plaintiff must submit a claim to a prelitigation screening panel before filing it in court. The process is intended to screen out claims that lack merit and encourage early resolution of meritorious claims, the court said.

The panel can’t decide legal issues but it can refer prelitigation motions, like those involving affirmative defenses, to a state court.

By law, all panel proceedings must be kept private and confidential. The law also says that “written decisions of the Superior Court that are issued” in response to a panel’s request are confidential and not generally available to the public.

The law is ambiguous, the court said. It requires all proceedings before the panel to be kept private, but it doesn’t say all ancillary proceedings before the courts must be confidential as well, it said.

According to the court, the law “does not expressly state that the courts’ opinions on panel-referred motions are to be confidential.” A procedural rule that addresses panel proceedings also lacks a clear statement that such opinions must stay confidential, the court also said.

No one has challenged the alleged sealing requirement before, even though the law has been around since the 1980s, the court said. Maine’s top court thus has never had a chance to decide if it requires sealing court opinions. It should be given that opportunity, the court said in a Feb. 4 opinion by Judge Nancy Torresen dismissing the case.

Gideon Asen LLC and University of Maine Law School Professor Anthony Moffa represent the firm. Maine’s Attorney General’s Office represents the state courts.

The case is Gideon Asen LLC v. Glessner, 2022 BL 39414, D. Me., No. 2:21-cv-189, 2/4/22.