Berthiaume's Estate v. Pratt

• Decision Date: 10 November 1976
• Parties: ESTATE of Henry BERTHIAUME v. Loring PRATT, M. D.
• Court: Maine Supreme Court

Page 792

365 A.2d 792

86 A.L.R.3d 365

ESTATE of Henry BERTHIAUME v. Loring PRATT, M. D.

Supreme Judicial Court of Maine.

Nov. 10, 1976.

Robert J. Daviau, Waterville, for plaintiff.

Robinson, Solman, Hunt & Kriger by M. Roberts Hunt, Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

POMEROY, Justice.

The appellant, as administratrix, based her claim of right to damages on an alleged invasion of her late husband's 'right to privacy' and on an alleged assault and battery of him. ¹ At the close of the evidence produced at trial, a justice of the Superior Court granted defendant's motion for a directed verdict. Rule 50, M.R.Civ.P.

Appellant's seasonable appeal brings the case to this court.

The appellee is a physician and surgeon practicing in Waterville, Maine. ² It was established at trial without contradiction that the deceased, Henry Berthiaume, was suffering from a cancer of his larynx. Appellee, an otolaryngologist, had treated him twice surgically. A laryngectomy was performed; and later, because of a tumor which had appeared in his neck, a radical neck dissection on one side was done. No complaint is made with respect to the surgical interventions.

During the period appellee was serving Mr. Berthiaume as a surgeon, many photographs of Berthiaume had been taken by appellee or under his direction. The jury was told that the sole use to which these photographs were to be put was to make the medical record for the appellee's use. There is nothing in the case to suggest that the photographs were to be shown to students for teaching purposes or were to be used as illustrative photographs in any text books or papers. The only persons to whom the photographs were available were those members of appellee's staff and the appropriate hospital personnel who had duties to perform with respect to medical records.

Although at no time did the appellee receive any written consent for the taking of photographs from Berthiaume or any members of his family, it was appellee's testimony that Berthiaume had always consented to having such photographs made.

At all times material hereto Mr. Berthiaume was the patient of a physician other than appellee. Such other physician had referred the patient to appellee for surgery. On September 2, 1970, appellee saw the patient for the last time for the purpose of treatment or diagnosis. ³ The incident which gave rise to this lawsuit occurred on September 23, 1970.

It was also on that day Mr. Berthiaume died.

Although appellee disputed the evidence appellant produced at trial in many material respects, the jury could have concluded from the evidence that shortly before Mr. Berthiaume died on the 23rd, the appellee and a nurse appeared in his hospital room. In the presence of Mrs. Berthiaume and a visitor of the partient in the next bed, either Dr. Pratt or the nurse, at his direction, raised the dying Mr. Berthiaume's head and placed some blue operating room toweling under his head and beside him on the bed. The appellee testified that this blue toweling was placed there for the purpose of obtaining a color contrast for the photographs which he proposed to take. He then proceeded to take several photographs of Mr. Berthiaume.

The jury could have concluded from the testimony that Mr. Berthiaume protested the taking of pictures by raising a clenched fist and moving his head in an attempt to remove his head from the camera's range. The appellee himself testified that before taking the pictures he had been told by Mrs. Berthiaume when he talked with her in the corridor before entering the room that she 'didn't think that Henry wanted his picture taken.'

It is the raising of the deceased's head in order to put the operating room towels under and around him that appellant claims was an assault and battery. It is the taking of the pictures of the dying Mr. Berthiaume that appellant claims constituted the actionable of Mr. Berthiaume's right to privacy. ⁴

At the close of all the evidence, the presiding justice, acting on a motion seeking such action, directed a verdict for the defendant, as he is permitted to do under the provisions of Rule 50(a), M.R.Civ.P. This seasonably filed appeal followed.

We sustain the appeal.

The announced rationale of the presiding justice for the action taken may best be summed up by quoting two statements he made when he explained to the jury why he was withdrawing the case from their consideration and directing a verdict. At one point, while addressing the jury, he said:

'The mere fact the taking of pictures, under the best circumstances, in other words, assuming that the pictures were taken without consent as the plaintiff-administratrix complains, the mere taking of pictures is not an invasion of privacy. There is no proof they were published; no proof they were used for any purpose other than their intended use in the record-keeping process by the doctor in the case of the patient that he had.'

Later, while addressing the jury, he said:

'The law says in the course of his treating a patient, the doctor has the right to lay his hand on you in order to provide you with treatment for which you have sought his advice, and his attention and care and treatment.

'Although the taking of pictures is not necessarily a treatment, it is part of the overall medical care, an association, a relationship between the doctor and the patient, and as the doctor has testified, I think medical science must have some information in its effort to track down and search for a cure.'

We have not previously had occasion to discuss the right to privacy, nor have we ever declared that if there is such right, its violation constitutes an actionable tort.

Warren and Brandeis are credited by most textwriters with seeding the thought for the development of the invasion of the right to privacy as an independent and distinct tort. 4 Harv.L.Rev. 193 (1890). ⁵

By our decision in this case we join a majority of the jurisdictions in the country in recognizing a 'right to privacy.' ⁶ We also declare it to be the rule in Maine that a violation of this legally protected right is an actionable tort.

Specifically in this case we rule an unauthorized intrusion upon a person's physical and mental solitude or seclusion is a tort for the commission of which money demages may be had.

The law of privacy addresses the invasion of four distinct interests of the individual. Each of the four different interests, taken as a whole, represent an individual's right 'to be let alone.' These four kinds of invasion are:

(1) intrusion upon the plaintiff's physical and mental solitude or seclusion;

(2) public disclosure of private facts;

(3) publicity which places the plaintiff in a false light in the public eye;

(4) appropriation for the defendant's benefit or advantage of the plaintiff's name or likeness.

As Prosser explains it:

'As it has appeared in the cases thus far decided, it is not one tort, but a complex of four. To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff 'to be let alone. " W. Prosser, Law of Torts, 804 (4th ed. 1971).

Continuing, it is written in Prosser:

'Taking them in order-intrusion, disclosure, false light, and appropriation-the first and second require the invasion of something secret, secluded or private pertaining to the plaintiff; the third and fourth do not. The second and third depend upon publicity, while the first does not, nor does the fourth, although it usually involves it. The third requires falsity or fiction; the other three do not. The fourth involves a use for the defendant's advantage, which is not true of the rest.' Id., at 814.

All cases so far decided on the point agree that the plaintiff need not plead or prove special damages. Punitive damages can be awarded on the same basis as in other torts where a wrongful motive or state of mind appears (Allen v. Rossi, 128 Me. 201, 146 A. 692, 693 (1929)), but not in cases where the defendant has acted innocently as, for example, in the mistaken but good faith belief that the plaintiff has given his consent. Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942).

In this cases we are concerned only with a claimed intrusion upon the plaintiff's intestate's physical and mental solitude or seclusion. The jury had a right to conclude from the evidence that plaintiff's intestate was dying. It could have concluded he desired not to be photographed in his hospital bed in such condition and that he manifested such desire by his physical motions. The jury should have been instructed, if it found these facts, that the taking of pictures without decedent's consent or over his objection was an invasion of his legally protected right to privacy, which invasion was an actionable tort for which money damages could be recovered.

Instead, a directed verdict for the defendant was entered, obviously premised on the presiding justice's announced incorrect conclusion that the taking of pictures without consent did not constitute an invasion of privacy and the further erroneous comclusion that no tort was committed in the absence of 'proof they (the photographs) were published.'

Another claimed basis for appellant's assertion that a right to recover damages was demonstrated by the evidence is the allegations in her complaint sounding in the tort of assault and...