MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	139

Docket: Yor-18-512

Submitted

On	Briefs: June	26,	2019

Decided: August	20,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.

ANN	SALERNO

v.

SPECTRUM	MEDICAL	GROUP,	P.A.

HJELM,	J.

[¶1]		In	December	of	2017,	Ann	Salerno	filed	a	complaint in	the	Superior	

Court	(York	County)	against	Spectrum	Medical	Group,	P.A.,	stating a claim	for

personal	injury based	on	premises	liability.		In	her	complaint,	Salerno	alleged	

that	more	than	three	years	earlier	she	slipped, fell,	and	sustained	injuries	in	the	

locker	room	of	a	facility	“owned	and	run”	by	Spectrum.		Spectrum	moved	for	

the	court to	dismiss	Salerno’s complaint on	the	ground	that,	in	reality, the claim	

was	 for	 medical negligence,	 which	 must	 be brought	 in	 accordance	 with	 the	

procedural	requirements	of	the	Maine	Health	Security	Act	(MHSA),	24	M.R.S.	

§§ 2501-2988	 (2018).	 	 The	 court	 (O’Neil,	 J.) entered	 an	 order	 denying

Spectrum’s	motion,	and	Spectrum	appeals	that	order. We	agree	with	Spectrum	

that	 this	interlocutory appeal falls	within	an	 exception	 to	 the	 final	judgment	
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rule.		Reaching	the	merits,	we	affirm	the	order denying	Spectrum’s	motion	to	

dismiss.		

I.		BACKGROUND

[¶2]		The	following	facts	are	drawn	from	Salerno’s	complaint,	which	are	

deemed	admitted for	purposes	of	this	appeal,	see Lawson	v.	Willis,	2019	ME	36,	

¶	2,	204	A.3d	133,	and from	the	procedural	record.

[¶3]		In	June	of	2014,	Salerno	underwent	hip	replacement	surgery,	after	

which	she	was	required	to	follow	strict	precautions	to	protect	her new	hip.		Two	

months	after	the	surgery,	on	August	6,	2014,	Salerno	went	to	a	facility in	Saco	

owned	by	Spectrum to engage	in	water	 therapy.		Although	the water	therapy

itself	took	 place	in	 an	 area	 of	the	 premises that	was operated	 by	 a	 different	

entity, Spectrum	 operated	 a locker	 room	 where Salerno	 changed from	 her	

swimsuit	into	her	street	clothes.		Because	of the	surgery,	Salerno needed to	use

a	bench	to	change	her	clothes.		That	day, however, the	only	bench	in	the	locker	

room	was	covered	by	a	heavy	rubber	mat	that	should	have	been	on	the	floor	in	

front	of	a nearby	shower	stall.		The	shower	stall	had	a	handicapped-accessible	

seat,	 which	 Salerno	 attempted	 to	 use because the	 bench was	 not	 available.		

While	attempting	to	get	to the	seat	in	the	shower	stall,	Salerno	slipped, fell,	and	

was	injured.		
3

[¶4]		More	than	three	years	later, on December	11,	2017,	Salerno	filed	a	

complaint	against	Spectrum	stating	a	tort	claim	for premises	liability. Spectrum	

moved to	dismiss	Salerno’s	claim,	see	M.R.	Civ.	P.	12(b)(6),	asserting that	 the	

facts	 alleged in	 the complaint	 actually	 constitute an	 action	 for	 professional	

negligence	as	defined	by	the	MHSA,	see	24	M.R.S.	§	2502(6),	and	that	her	claim	

is therefore	controlled by	 that Act,	see	id.	§	2903(1) (stating	 “[n]o	action	 for	

professional	 negligence	may	 be	 commenced	 until	 the	 plaintiff	 has”	 complied	

with	the	requirements	of	this	section).		Spectrum	further	asserted	that	because	

the	 MHSA	 provides a	 three-year	 statute	 of	 limitations for	 “actions	 for	

professional	negligence,” id.	§	2902,	Salerno’s	complaint was	time-barred.		

[¶5]	 	 In	 an	 order	 issued	 in November	 of	 2018,	 the	 court	 denied	

Spectrum’s	motion,	concluding that	Salerno’s claim,	as	alleged,	does	not	arise	

out	 of	 the	 provision	 or	 failure	 to	 provide	 healthcare	 services	 within	 the	

meaning	 of the	MSHA,	see	24	M.R.S.	 § 2502(6), and	 therefore	Salerno’s claim	

“does	not	fall	under	the	MHSA	and	was	timely	commenced,” see	14	M.R.S.	§	752	

(2018) (stating	that “[a]ll	civil	actions	shall	be	commenced	within	6	years	after	

the	 cause	 of	 action	 accrues .	 .	 .	 except	 as	 otherwise	 specially	 provided”).

Spectrum	filed	 this	 interlocutory	 appeal challenging	the	 court’s	 denial	 of	 its	

motion	to	dismiss.	 See	14	M.R.S.	§ 1851	(2018).
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II.		DISCUSSION

[¶6]	 	Before	 we	 can	 consider	 the	 merits	 of	 Spectrum’s	 contentions	 on	

appeal,	we	must	first	address	whether	those	contentions	are	cognizable	at	this	

stage	of	the	case.

A. Interlocutory	Appeal

[¶7]	 	 “The	 denial	 of	 a	 motion	 to	 dismiss	 is	 not	 a	 final	 judgment,	 and	

ordinarily	 we	 would	 dismiss	 the	 appeal	 from	 the	 denial	 as	 an	 interlocutory	

appeal.”		Efstathiou	v.	Aspinquid,	Inc.,	2008	ME	145,	¶	23,	956	A.2d	110.		“A	party	

urging	 that	we	reach	 the	merits	of	an	otherwise	interlocutory	appeal	has	 the	

burden	of	demonstrating	to	us	that	.	.	. [an] exception[]	to	the	final	judgment	

rule	justifies	our	reaching	the	merits	of	the	appeal.”		Sanborn	v.	Sanborn,	2005	

ME	95,	¶	6,	877	A.2d	1075.		Spectrum	contends	that	this	interlocutory	appeal	is	

excepted	 from	 the	 final	judgment	 rule	because	it	 falls	within the	death	 knell	

exception.

1			

 1 Spectrum	also	contends	that	its	challenge	is	cognizable	on	appeal	either	pursuant	to	the judicial	

economy	exception to	 the	 final	judgment	rule	or	because	 there	exist extraordinary	circumstances	

justifying an	ad hoc	exception	to	that rule.	 For	the	following	reasons,	neither	assertion	is	persuasive.

First,	the	judicial	economy	exception	to	the	final	judgment	rule	arises	only	“in	those	rare	cases	in	

which	appellate	review	of	a	non-final	order	can	establish	a	final,	or	practically	final,	disposition	of	the	

entire	litigation.		 It	applies	only	when	a	decision	on	 the	appeal	.	.	 .	regardless	of	what	it	is,	would	

effectively	dispose	of	the	entire	case.”		Bond	v.	Bond,	2011	ME	105,	¶	12,	30	A.3d	816 (alteration	in	

original)	(quotation	marks	omitted).		That	is	not	the	case	here because	if	we	were	to	affirm	the	court’s	

decision—as	we	do—the	case	would	remain	pending.		
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[¶8]	 	 The	 death	 knell	 exception to	 the	 final	 judgment	 rule	 justifies	

consideration	of	issues	raised	on	an	interlocutory	appeal	only	if	awaiting	a final	

judgment will	cause “substantial	rights	of	a	party	[to] be	irreparably	lost.”		Fiber	

Materials,	 Inc.	 v.	 Subilia,	 2009	 ME	 71,	 ¶	 14,	 974	 A.2d	 918 (quotation	 marks	

omitted).		“A	right	is	irreparably	lost	if	the	appellant	would	not	have	an	effective	

remedy	 if	 the	 interlocutory	 determination	 were	 to	 be	 vacated	 after	 a	 final	

disposition	 of	 the	 entire	 litigation.”	 	 Id.	 (quotation	 marks	 omitted).	 	 This	

exception	is	 available	“only	when	 the	injury	 to	 the	appellant’s	claimed	 right,	

absent	 appeal,	 would	 be	 imminent,	 concrete	 and	 irreparable.”	 	 Id. ¶	 16	

(quotation	marks	omitted);	see e.g., Geary	v.	Stanley	Med.	Research	Inst.,	2008	

ME	9,	¶	11,	939	A.2d	86 (the	denial	of	summary	judgment	based	on	the	defense	

of	immunity	is	immediately	reviewable);	Morse	Bros., Inc.	v.	Webster,	2001	ME	

 Second,	the	circumstances	of	this	appeal are	not so	“extraordinary”	as	to	allow an	ad	hoc exception	

to	 the	 final	 judgment	 rule.	 	 Compare Fitzgerald	 v.	 Bilodeau,	 2006	 ME	 122,	 ¶ 5,	 908	 A.2d	 1212

(concluding	that	absent	extraordinary	circumstances,	“an	immediate	appeal	from	a	denial	of	a	motion	

to	dismiss	for	forum	non	conveniens	under	the	Uniform	Child	Custody	Jurisdiction	and	Enforcement	

Act	 .	 .	 . is	 inappropriate”), and IHT	 Corp.	 v.	 Paragon	 Cutlery	 Co.,	 2002	 ME	 68,	 ¶	 7,	 794	 A.2d	 651

(concluding	that	the denial	of	a	motion	to	dismiss	for	lack	of	personal	jurisdiction	does	not	constitute

extraordinary	circumstances),	with First	Nat’l	Bank	of	Bos. v.	City	of	Lewiston,	617	A.2d	1029,	1030-31

(Me.	1992) (concluding	 that	 “extraordinary	circumstances”	are	present	where	an	appeal	is	 taken	

from	an	interlocutory	order	permitting	the sale	of property for	the	benefit	of	an	interest holder	but

in	which	the	appellant	claims	to	have	a	senior	interest,	because	“a	later	finding	that	the	[appellant]	

was	indeed	the	holder	of	a	senior	interest	would	be	hollow”),	and Bar	Harbor	Banking	&	Tr. Co.	v.	

Alexander,	 411	 A.2d	 74,	 77	 (Me.	 1980) (concluding	 that	 to	 avoid	 “judicial	 interference	 with	

apparently	legitimate	executive	department	activity .	.	.	and	to	safeguard	the	separation	of	powers,”	

we will	consider	an	interlocutory	appeal);	see	also	Estate	of	Dore	v.	Dore,	2009	ME	21,	¶	16,	965	A.2d	

862.
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70,	¶	15,	772	A.2d	842 (the	denial	of	a	special	motion	to	dismiss	pursuant	to	

anti-SLAPP	legislation	is	immediately	reviewable),	abrogated	in	part	by	Nader	

v.	Me.	Democratic	Party,	2013	ME	51,	¶ 12	n.9,	66	A.3d	571 (stating	the	correct	

standard	of	review	for	a	special	motion	to	dismiss); Moffett	v.	City	of	Portland,	

400	 A.2d	 340,	 343	 n.8	 (Me.	 1979) (the	 denial	 of	 a	 motion	 for	 a	 preliminary	

injunction	 to	 enjoin	 the	 disclosure	 of	 confidential	 records	 is	 immediately	

appealable).		

[¶9]	 	 The	 determination	 of whether the	 death	 knell	 exception	 is	

applicable	 to a	 particular	 case	 rests	 on	 a fact-specific analysis.	 	 See	 Fiber	

Materials,	Inc., 2009	ME	71,	¶ 14,	974	A.2d	918.		We	must	therefore	consider

whether	the	MHSA	in	particular	provides Spectrum	with	substantial	rights	and,

if	so,	whether	those	rights	will	be	irreparably	lost	if	the	court’s	order	denying	

the motion	to	dismiss	is	not	reviewable	until	a	final	judgment	is entered.		

[¶10] As	we	have	explained,	in	the	mid-1970s	the	Legislature	was	faced	

with	 “an	 alleged	 national	 crisis	 in	 the	 availability	 and	 cost	 of	 medical	

malpractice	insurance.”		Butler	v.	Killoran,	1998	ME	147,	¶	9,	714	A.2d	129.		As	

a	 result,	 the Legislature	 enacted	 the MHSA	 as “comprehensive	 tort	 reform	

within	the	health	care	industry	designed	to	stem	rising	malpractice	insurance	
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costs	and	ensure	the	continued	availability	of	malpractice	insurance	to	Maine	

health	care	providers	and	practitioners.”		Id.

[¶11]	 	 Pursuant	 to	 the	 MHSA,	 a party	 bringing	 a	 claim for	 medical

negligence,	in	contrast to	a	conventional	tort	claim,	must	comply with	a number	

of	 distinct	 procedural	 requirements.	 	 See	 24 M.R.S. §§ 2853-2858,	 2903(1).		

Most	 significantly for	 present	 purposes,	the	 MHSA	 requires that, before	the	

claim	may	be heard	by	a	court,	it must	be	presented	to	a	prelitigation	screening	

panel constituted	of a	judicial	officer,	an	attorney,	and	a	health	care	practitioner	

or provider.		Id.	§§ 2852(2),	2853,	2903(1)(A)-(B).		The	purpose	of	the	panel	

proceeding is	to allow	the	panel	members	to	identify	and	separate	meritorious

claims	 from	 nonmeritorious	 claims and	 encourage	the parties	 to	 achieve	 an

early resolution of	 the	 litigation.	 Id.	 §§ 2851(1),	 2854;	 see	 also	 Sullivan	 v.	

Johnson,	628	A.2d	653,	656	(Me. 1993).		Additionally,	pursuant	to	the	MHSA,	the	

notice	of	claim for professional	negligence,	the	proceedings	before	the panel,

and	 the	 panel’s	 final	 determinations	 are generally confidential.2	 	 24 M.R.S.	

§§ 2853(1-A),	2857.

 2		The	Legislature	has	created	several narrowly circumscribed exceptions to	the	confidentiality	

that	otherwise	cloaks	the	proceedings	before	the	panel	and	the	panel’s	findings.	All	of	those	statutory	

exceptions	are	limited	to	public	disclosure	of	that	information	under	certain	circumstances	during	a	

subsequent	court	action	involving	the	same	claim.		See 24 M.R.S.	§ 2857(1) (2018).		
8

[¶12]	 	 Spectrum	 asserts	 that	 it	 will irretrievably lose the rights	 and	

protections	provided	by	the	MHSA	if	it	is denied appellate	review	of	an	order	

concluding	that	the	claim	is	not	subject	to	the	MHSA.		We agree.		If a	trial	court	

were	 to	 erroneously	 deny a	 motion	 to	 dismiss	 a	 claim	 that	the	 plaintiff	 has

framed	 as an	 ordinary	 tort	 claim but	 is	 actually	 governed	 by	the MHSA,	the	

defendant would	be	deprived	 of	“[t]he	 statutory mechanism	for	encouraging	

the	 settlement,	 withdrawal	 or	 dismissal	 of	 claims” for	 medical	 negligence.	

Sullivan,	628	A.2d	at 656; cf. Morse	Bros., Inc., 2001	ME	70, ¶	15,	772	A.2d	842	

(stating	that	the	anti-SLAPP	special	motion	to	dismiss	is	“a	statutory	creature	

designed	 to	 protect	 certain	 defendants	 from	 meritless	 litigation”	 and	 that	

“[p]recluding	the	moving	party	from	appealing	a	decision	on	the	motion	would	

result	in	continued	litigation,	which	is	the	precise	harm	that	the	statute	seeks	

to	prevent”).	

[¶13]	 	 The confidential	 nature	 of	 the	 pre-suit	 proceedings	 for	 a	 claim	

governed	by	the	MHSA	is	also	at	stake.		See	24	M.R.S.	§§	2853(1-A),	2857.		In	

other	 settings, we	 have	 concluded	 that	 a	 court	 order	 either	 requiring or	

allowing for	 the	 release	 of	 allegedly	 confidential	 information	 is	 immediately	

reviewable	because	the	issue	is	within	the	purview	of	the	death	knell	exception.		

See	 Fitch	 v.	 Doe,	 2005	 ME	 39,	 ¶ 10,	 869	 A.2d	 722 (concluding	 that	 an	 order
9

compelling	 the	 disclosure	 of	 an	 anonymous	 internet	 user’s	 identity	 is	

immediately	 reviewable,	 and	 stating	 that	 the	 “denial	 of	 the	 opportunity	 to	

appeal	would	make	a	later	appeal	moot,	because	the	information	at	issue	would	

already	have	been	released”);	see	also Copp	v.	Liberty,	2003	ME	43,	¶	6	n.2,	818	

A.2d	 1050; Moffett,	 400	 A.2d	 at 343	 n.8.	 Because	 the	 defendant’s	 right	 to	

confidentiality	would	be	irreparably	lost if	a	claim	for	professional	negligence	

proceeded	outside	the	MSHA	framework,	the	death	knell	exception	to	the	final	

judgment	rule	applies	for	this	reason as	well.3		

[¶14]		A conclusion that	the	death	knell	exception	does	not	apply in	these	

circumstances would	inappropriately	minimize the	importance	of	many	of	the	

procedures	 established	 in	 the	 MHSA	 and	 the	 goals	 promoted	 by	 that	

legislation.4 Accordingly,	 we	 conclude	 that,	 pursuant	 to	 the	 death	 knell	

 3		Because	the	allegations	in	Salerno’s	complaint	are	already	public,	the	death	knell	exception	is	

not	available	to	protect	any	right	of	confidentiality	Spectrum	would	have	as	to	that	information.		See

Fiber Materials,	 Inc. v.	 Subilia,	 2009	 ME	 71,	 ¶¶ 10-11,	 19, 27,	 974	 A.2d	 918 (dismissing	 an	

interlocutory	 appeal	 from an	 order	 denying	the	 defendant’s motion	 to	 strike	 allegedly	 privileged	

material	from	the	complaint	because	“the	information	that	[the	defendant]	asserts	is	privileged	has	

already	 been	 revealed,	 and	 is	 already	 part	 of	 the	 record”).	 	 Here,	 however,	 the	 confidentiality	

Spectrum	seeks	to	protect extends	to	information	beyond	what	Salerno	has	alleged	in	her complaint.		

For	example, a	motion	for	summary	judgment filed	later	in	the	proceeding could	reveal	considerable	

factual	information to	the	public—information	that	would	remain	confidential	if	presented	in	a	panel	

setting.

4		We	note	that	the	substantial	rights	that	would	be	irreparably	lost	absent	interlocutory	review	

do	not include	 the	 three-year	period	of	limitations	applicable	 to	claims	 for	medical	negligence—a	

period that	is	shorter	than	for	civil	claims	generally.		Compare	24	M.R.S.	§	2902	(2018) with 14	M.R.S.	

§	752	 (2018).		As	we	have	held,	the	denial	 of	a	motion	to	dismiss	an	action	as	 time-barred	is	not	

subject	to	review	on	an	interlocutory	appeal.		Porrazzo	v.	Karofsky,	1998	ME	182,	¶	5,	714	A.2d	826;	

see	also	Tornesello	v.	Tisdale,	2008	ME	84,	¶	18,	948	A.2d	1244.		Accordingly,	Spectrum’s	assertion	
10

exception,	Spectrum’s	challenge	 to	 the	court’s	denial	of	its	motion	 to	dismiss	

Salerno’s	complaint	is cognizable on	this interlocutory	appeal.

[¶15]		We	now	turn	to	the	merits	of	the	parties’	arguments.

B. Spectrum’s	Motion	to	Dismiss	Salerno’s	Complaint

[¶16]		“On	a	motion	to	dismiss,	facts	are	not	adjudicated,	but	rather	there	

is	an	evaluation	of	the	allegations	in	the	complaint	in	relation	to	any	cause	of	

action	that	may	reasonably	be	inferred	from	the	complaint.”	 Saunders v.	Tisher,	

2006	ME	94, ¶ 8,	902	A.2d	830.		“We	examine	the	complaint	in	the	light	most	

favorable	to	the	plaintiff	to	determine	whether	it	sets	forth	elements	of	a	cause	

of	action	 or	 alleges	 facts	 that	would	entitle	 the	 plaintiff	 to	 relief	 pursuant	 to	

some	legal	theory.”		Id.	(alterations	omitted)	(quotation	marks	omitted).		

[¶17]		Spectrum	asserts	that,	although	Salerno	framed	her claim	as	one	

for premises	 liability, her	 allegations actually	 constitute an	 action	 for	

professional	negligence as	that	term	is	defined	in	the	MHSA and	thus	must	be	

brought	pursuant	to	that	Act’s	provisions.		We	disagree.	

[¶18]		The	MHSA	defines	an	“[a]ction	for	professional	negligence”	as

any	action	for	damages	for	injury	or	death	against	any	health	care	

provider,	its	agents	or	employees,	or	health	care	practitioner, his	

agents	 or	 employees,	 whether	 based	 upon	 tort	 or	 breach	 of	

 

that	Salerno’s	claim	is	barred	by	the	three-year	limitation	period applicable	to	claims	of	professional	

negligence does	not,	by	itself,	allow	an	interlocutory	appeal	under	the	death	knell	exception.		
11

contract	 or	 otherwise,	 arising	 out	 of	 the	 provision	 or	 failure	 to	

provide	health	care	services.		

24	M.R.S.	§	2502(6)	(emphasis	added).		Although we	have	described	the	MHSA	

as	 “broadly	 worded	 and	 all-encompassing,”	 Saunders, 2006	 ME	 94,	 ¶	 9,	 902	

A.2d	830, and	as	“fully	occupy[ing]	 the	 field	of	claims	brought	against	health	

care	providers,”	Brand v.	Seider, 1997	ME	 176,	 ¶ 4,	697	 A.2d	 846 (quotation	

marks	 omitted),	 the statutory	 definition	 of “an	 action	 for	 professional	

negligence”	contains	 several clear and	distinct elements, see D.S.	v.	Spurwink	

Servs.,	 Inc.,	 2013	 ME	 31,	 ¶¶	 21,	 24,	 65	 A.3d	 1196 (declining	 to	 expand	 the	

MHSA’s	 definition	 of	 “health	 care	 provider” against	 which	 an	 action	 for	

professional	negligence	may	be	brought	pursuant	to the	MHSA).		One	of	those	

elements is	that	the	claim	must“aris[e] out	of	the	provision	or	failure	to	provide	

health	care	services.”		24	M.R.S.	§	2502(6).

[¶19]		As	described	in	her	complaint,	Salerno’s	use	of	Spectrum’s locker	

room	to	change	clothes after	water	therapy—without	more—simply	does	not	

amount	to	the	provision	of	health	care	services.		Although	Salerno	was	present	

in	the	building	for	purposes	of	medical	rehabilitation,	she	sustained	her	injuries	

because	Spectrum	was	allegedly	negligent	by	allowing	a	rubber	mat	to	be	left	

in	 the	 wrong	 place	 in	 the	 locker	 room—a	 circumstance	 unrelated	 to	 the	

provision	of	health	care.		See Winona	Mem’l	Found.	of	Indianapolis	v.	Lomax,	465	
12

N.E.2d	731,	732,	742 (Ind.	Ct.	App.	1984) (concluding	that	a	claim,	brought	by	a	

plaintiff	who	 tripped	and	 fell	on	her	way	 from	a	dressing	room	 to	a	physical	

therapy	pool,	was	properly	brought	as	a	premises	liability	claim,	and	was	not	

within	the	purview	of	that	state’s	Medical	Malpractice	Act);	Zobac	v.	Se. Hosp.	

Dist.	 of	 Palm	 Beach	 Cty.,	 382	 So.	 2d	 829,	 830-31	 (Fla.	 Dist.	 Ct.	 App.	 1980)

(concluding	that	a	claim,	brought	by	a	patient	alleging	that	he	slipped	and	fell	

in	water	left	on	the	floor	of	a	hospital,	was	not	required	to	be	brought	pursuant	

to	the	Florida	Medical	Liability	Mediation	Act).		

[¶20]		Consequently,	Salerno’s	claim	that	she	slipped	and	fell	while	using	

Spectrum’s	locker	room	is	not within	the	ambit	of	the	MHSA,	and	the	court did	

not	err	by	denying	Spectrum’s	motion	to	dismiss	her complaint.

The	entry	is:

Order affirmed.	

Jonathan	 W.	 Brogan,	 Esq.,	 Norman,	 Hanson	 &	 DeTroy,	 LLC,	 Portland,	 for	

appellant	Spectrum	Medical	Group,	P.A.

Richard	R.	Regan,	Esq.,	Moncure	&	Barnicle,	Topsham,	for	appellee	Ann	Salerno

York	County	Superior	Court	docket	number	CV-2017-269

FOR	CLERK	REFERENCE	ONLY