MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 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	dism iss 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)

. T he	 court ( O’Neil, J. ) entered	 an	 order den ying Spectrum’s	motion ,	and S pectrum	appeals	that	order

. We	agree	with Spectrum that	 th is	interlocutory appeal falls	within	an	 exception	 to	 the	 final	judgment2 rule

. Reaching	the	merits ,	we affirm the	order denying	Spectrum’s	motio n	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 engag e	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	 change d from	 her swimsuit	into	her	street	clothes. Because	of the	surgery, Salerno needed to	use a	bench	to	change	her	clothes

. T hat	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

- accessibl e 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 ] M ore	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	 acti on	 for	 professional negligence	as	defined	by	the	MHSA, see 24	M.R.S.	§	2502(6),	and that her	claim
is therefore controlled by	 th at Act, see	id. §	2903 (1) (stating	 “[n]o	action	 for professional	 negligence	may	 be	 commenced	 until	 the	 plaintiff	 has”	 complied

w ith	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 wa s 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 , ” s ee 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)

.4 II.		DISCUSSION [¶ 6 ] Before	 we	 can	 consider	 the	 merits	 of	 Spectrum’s	 contentions	 on appeal,	we	must	first	address	whether	those	conte ntions	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	appe al.” 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	th at rule

. For	the	following	reasons,	n either	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 origina l) (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.5 [¶ 8 ] T he	 death	 knell	 exception to	 the	 final	 judgme nt	 rule justifies consideration	of	issues	raised o n	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). T his 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 Unifor m	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 extraord inary	circumstances) , with First	Nat’l	Bank of	Bos

. v. City	of Lewiston ,	617	A.2d	1029,	1030

- 31 (Me.	1992) ( concluding	 that	 “extraordinary	circumstance s ” 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 ,	 4 11	 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

.6 70,	¶	1 5 ,	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 prel iminary 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,	¶ 1 4 ,	974	A.2d	918 .		We	must	therefore consider whether	the	MHSA in particular provide s 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	review able until	a	final	judgment is entered. [¶1 0 ] 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	insurance7 costs	and	ensure	the	continued	availability	of	malpractice	insurance	to	Maine health	care	p roviders	and	practitioners.” Id. [¶1 1 ]	 	 Pursuant	 to	 the	 MHSA,	 a party	 bring ing 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), 285 3,	2903(1)(A)

- (B)

. T he	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

. I d. § § 2851 (1),	 2854 ; see	 also Sullivan	 v. Johnson ,	628	A.2d	653,	656	(Me. 1993)

. Additionally,	pursuant	to	the	MHSA,	t he notice	of	claim for professional	negligence , the proceedings	before th e 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 exception s 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	informati on under	certain	circumstances during	a subsequent	court	action	involving	the	same	claim. See 24 M.R.S. § 2857(1) (2018).8 [¶1 2 ] 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 den y a	 motion	 to	 dismiss a	 claim	 that the	 plaintiff	 ha s 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	 s ettlement,	 withdrawal	 or	 dismissal	 of	 claims ” for	 medical	 negligence. Sullivan , 628	A.2d at 656 ; c f. 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
resul t	in	continued	litigation,	which	is	the	precise	harm that the	statute	seeks to	prevent”). [¶1 3 ] 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. I n other settings, w e	 have	 concluded	 that	 a	 court order	 either requir ing or allow ing for	 the	 release	 of	 allegedly	 confidential	 information	 is	 immediately reviewable because	the	issue	is within	the	purview	of	the	death	knell	exceptio n . See Fitch	 v.	 Doe ,	 2005	 ME	 39,	 ¶ 10,	 86 9	 A.2d	 722 (concluding	 that an	 order9 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	wo uld 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	outsi de	the	MSHA	framework ,	the	death	knell	exception	to	the	final judgment	rule	applies for	this	reason as	well. 3 [¶1 4 ] A conclu sion that	the	death	knell	exce p tion	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, 1 9, 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 complain t

. For	example, a	motion	for	summary	judgment filed	later	in	the	proceeding could	reve al	considerable factual	information to	the	public

— information	that	would	remain	confidential if	presented	in	a	panel settin g .

4 We	note	that	t he 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 .		Accord ingly,	Spectrum’s	assertion10 exception , Spectrum’s	challenge	 to	 the	court’s	denial	of	its	motion	 to	dismiss Salerno ’s	complaint is cognizable o n this interlocutory	appeal

. [¶1 5 ] We	now	turn	to	the	merits	of the	parties’	arguments

. B. Spectrum’s	Motion	to	Dismiss	Salerno’s	Complaint [¶1 6 ] “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	plainti ff	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). [¶1 7 ] 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. [¶1 8 ]		The MHSA	defines	a n “[ 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	 o r 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). A lthough 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) , th e 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 )

. O ne	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 ,	46512 N.E.2d	731 ,	732,	742 (Ind.	Ct.	App.	1984) (concluding	that	a	claim,	brou ght	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.	S e. Hosp. Dist.	 of	 Pal m	 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	Liabil ity	Mediation	Act). [¶ 2 0 ]		Consequently,	Salerno’s	claim	that	she	slipped	and	fell	while	using Spectrum’s	locker	room is	not within	the	ambit	of	the	MHSA ,	and	t he	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 appellan t	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 F OR C LERK R EFERENCE O NLY