Forbes v. Osteopathic Hosp. of Maine, Inc.

• Decision Date: 19 December 1988
• Citation: 552 A.2d 16
• Court: Maine Supreme Court
• Parties: Thomas L. FORBES, et al. v. OSTEOPATHIC HOSPITAL OF MAINE, INC.

Page 16

552 A.2d 16

Thomas L. FORBES, et al. v. OSTEOPATHIC HOSPITAL OF MAINE, INC.

Supreme Judicial Court of Maine.

Argued Sept. 9, 1988.

Decided Dec. 19, 1988.

David J. Corson (orally), Yarmouth, for plaintiffs.

Christopher D. Nyhan, Geoffrey K. Cummings (orally), Preti, Flaherty, Beliveau & Pachios, Portland, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and HORNBY, JJ.

GLASSMAN, Justice.

The plaintiffs Thomas Forbes and his wife Melanie Forbes appeal from a summary judgment entered in favor of the defendant, Osteopathic Hospital of Maine, Inc., by the Superior Court (Cumberland County, Brodrick, J.). The plaintiffs argue that because the record discloses a genuine issue of a material fact the trial court erred in granting the hospital's motion for a summary judgment. We agree and vacate the judgment.

The record reflects the following: By their original complaint against the hospital, the plaintiffs sought damages for the alleged negligent treatment of Thomas Forbes by two physicians, while acting as agents of the hospital. In its answer, the hospital denied that any agency relationship existed between the two physicians and the hospital. ¹ The plaintiffs and the two physicians entered into a settlement agreement resulting in the plaintiffs' release of the two physicians from further prosecution by the plaintiffs. The hospital moved for a summary judgment on the ground that the plaintiffs' claim against the hospital had been based solely on allegations of negligence of the two physicians alleged to have occurred while the physicians were acting as agents of the hospital, and thus the release of the two physicians barred any further action against the hospital. The parties stipulated the motion could be decided on the pleadings. The trial court stated that it "assume[d] the allegations of the plaintiffs' complaint to be true for purposes of the motion for summary judgment" and granted the hospital's motion "unless the plaintiffs move to amend the complaint to allege independent acts of negligence on the part of the [hospital] within 30 days."

By their timely amended complaint, the plaintiffs sought damages from the hospital by reason of its alleged negligent diagnosis and treatment of a puncture injury to Thomas Forbes's foot. In its answer, the hospital, inter alia, denied any negligence on its part. The trial court in its pretrial order set December 1, 1987 as the general discovery deadline with the hospital having until December 31, 1987 to depose any expert designated by the plaintiffs. On December 7, 1987, the hospital moved for a summary judgment against the plaintiffs as a matter of law on the ground of plaintiffs' failure to "identify an expert medical witness on liability and causation issues," and also on the ground that a summary judgment against the plaintiffs was an appropriate sanction under M.R.Civ. 37(b)(2) for their failure to identify any such expert witnesses. Although the parties filed memoranda of law, at no time did either party file any affidavits in support of or in opposition to the motion. After a hearing, the trial court granted the hospital's motion, and the plaintiffs appeal.

The only issue raised by the plaintiffs is whether on the record before it the Superior Court erred in finding that there was no genuine issue of material fact as to whether, absent expert medical testimony, the plaintiffs could sustain their burden of proof at trial. The plaintiffs concede their failure to designate an expert medical liability witness, but contend that the Superior Court erred in granting the defendant's motion for summary judgment because the allegations in the pleadings raise a genuine issue of material fact as to whether expert medical testimony is required. We have previously noted that ordinarily a plaintiff can discharge his burden of proof for a claim of negligent medical care only by expert medical testimony establishing the appropriate standard of medical care, that the defendant departed from the standard, and that the negligent conduct proximately caused the plaintiff's injury. Hamor v. Maine Coast Memorial Hosp., 483 A.2d 718, 722 (Me.1984); Cox v. Dela Cruz, 406 A.2d 620, 622 (Me.1979). We also recognized, however, that " 'where the negligence and harmful results are sufficiently obvious as to lie within common knowledge,' " expert medical testimony is unnecessary. Cox v. Dela Cruz, 406 A.2d at 622 (quoting Cyr v. Giesen, 150 Me. 248, 252, 108 A.2d 316, 318 (1954)); see also Hamor v. Maine Coast Memorial Hosp., 483 A.2d at 722.

In reviewing a grant of a motion for summary judgment, we view "the evidence in the light most favorable to the party against whom the motion has been granted and accord that party the full benefit of all favorable inferences that may be drawn from the evidence." Lidstone v. Green, 469 A.2d 843, 845 (Me.1983). We examine "the record to determine whether it supports the Superior Court's conclusion that there was no genuine issue as to any material fact, and that the [defendant was] entitled to a judgment as a matter of law." Id.

Rule 56(e) of the Maine Rules of Civil Procedure states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of that party's pleading; but must respond by affidavits or as otherwise provided in this rule, setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

The hospital did not support the conclusory assertion set forth in its motion for summary judgment with any affidavits, depositions, admissions on file, or answers to interrogatories to demonstrate that proof of the defendant's alleged negligent medical care requires expert medical testimony. M.R.Civ.P. 56(c). The plaintiffs therefore may rest on the allegations in their pleadings, and were not required to respond by affidavits or otherwise, setting forth specific facts to demonstrate a genuine issue of material fact as to whether the allegations of the hospital's negligence and the harmful results are sufficiently obvious as to be within common knowledge. See M.R.Civ.P. 56(e); Thompson v. State Dep't of Transportation, 521 A.2d 293, 294 (Me.1987). By filing an unsupported motion for summary judgment, the hospital in effect asserts that the plaintiffs' complaint demonstrates on its face the absence of any genuine issue of a material fact. Nothing in the pleadings before us, however, forecloses the plaintiffs from establishing that the negligence of the hospital and its harmful results to the plaintiffs are "sufficiently obvious as to lie within common knowledge." Cf. Rubin v. Josephson, 478 A.2d 665, 669 n. 4 (Me.1984) ("[A] complaint is sufficient unless it appears to a certainty the plaintiff is entitled to no relief under any set of facts he might prove in support of his claim."); Jones v. Billings, 289 A.2d 39, 40 (Me.1972). Accordingly, that genuine issue of a material fact prevents the hospital on the present record from entitlement to a summary judgment. See M.R.Civ.P. 56(c); Magno v. Town of Freeport, 486 A.2d 137, 141 (Me.1985).

Because the trial court did not rest its decision on this ground, we do not address the defendant's alternative argument that the judgment can be affirmed as an appropriate sanction under M.R.Civ.P. 37(b)(2). See Pelletier v. Pathiraja, 519 A.2d 187, 190 (Me.1986) (court's discretion to impose ultimate sanction of dismissal limited to "serious instances of noncompliance with pretrial procedures").

The entry is: Judgment vacated. Remanded to the Superior Court for further proceedings consistent with the opinion herein.

ROBERTS, WATHEN and CLIFFORD, JJ., concur.

HORNBY, Justice, with whom McKUSICK, Chief Justice, joins, dissenting.

The only issue for trial after the amendment of the pleadings was medical malpractice: whether the hospital caused injury to Thomas Forbes through negligent diagnosis and treatment, independently of the actions of the two physicians who treated him. As the Court recognizes, "a plaintiff can ordinarily discharge his burden of proof in medical malpractice suits only by expert medical testimony establishing (1) the appropriate standard of medical care, (2) that the defendant departed from the standard, and (3) that the negligent conduct proximately caused the plaintiff's injury." A defendant may "move with or without supporting affidavits for a summary judgment." M.R.Civ.P. 56(b). When the plaintiffs failed to generate an expert witness in support of the malpractice claim, it was thus reasonable and proper for the defendant hospital to move for summary judgment, without filing an affidavit, based upon this failure and the pleadings. Since its motion was premised upon the allegations of the amended complaint and since the deadline...