Harvey v. Mid-Coast Hosp.

• Decision Date: 08 January 1999
• Docket Number: No. CIV. 98-85-P-C.,CIV. 98-85-P-C.
• Parties: Dermot and Emily HARVEY on behalf of Julian HARVEY, Plaintiffs v. MID-COAST HOSPITAL, Defendant
• Court: U.S. District Court — District of Maine

36 F.Supp.2d 32

Dermot and Emily HARVEY on behalf of Julian HARVEY, Plaintiffs v. MID-COAST HOSPITAL, Defendant

No. CIV. 98-85-P-C.

United States District Court, D. Maine.

January 8, 1999.

Terrance R. Duddy, Richard W. Mulhern, John N. Kelly, Kelly, Remmel & Zimmerman, Portland, ME, for Plaintiffs.

Robert O. Newton, Christopher D. Nyhan, Sigmund D. Schultz, Preti, Flaherty, Beliveau & Pachios, Portland, ME, for Defendants.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

This is a medical malpractice action against Mid-Coast Hospital for the brain and neurological damage sustained by Julian Harvey in April of 1993. Plaintiffs in this action, Dermot and Emily Harvey ("the Harveys"), parents of Julian Harvey, have moved pursuant to Fed.R.Civ.P. 56 for summary judgment to dismiss Defendant Mid-Coast Hospital's affirmative defenses of assumption of the risk and comparative negligence. The Harveys' motion raises an issue of Maine law as to which the Court has found no decisive Maine precedent. Accordingly, the Court will grant the Harveys' motion.

I. BACKGROUND

On April 17, 1993, nineteen-year-old Julian Harvey was discovered unconscious in his dormitory room by his fellow students at The Hyde School in Bath, Maine. Plaintiffs' Statement of Material Facts (Docket No. 12) at ¶¶ 1, 2. Rescue personnel were summoned, and Julian was transported by ambulance to Mid-Coast Hospital where he was treated in the emergency room. Id. at ¶ 2. Julian, who suffered from a bipolar psychiatric disorder, had been prescribed a medication called Tegretol. Blood tests confirmed that Julian had consumed a large quantity of the drug on April 17th. Id.

After being treated in the emergency room, Julian was admitted to Mid-Coast Hospital's intensive care unit under the care of James P. Rines, M.D. Id. ¶ 3. While in the intensive care unit, Julian experienced seizures which developed into the condition known as status epilepticus, which is characterized as repeated seizures. Id. Dr. Rines was notified but was unable to control Julian's seizures. Plaintiffs' Statement of Material Facts ¶ 4. At some point during the series of seizures, Julian was transferred to Maine Medical Center where he was treated with the medication Versed which stopped the seizures. Id. ¶ 2, Exhibit 13. Julian sustained severe and permanent brain damage. Id. ¶ 5, Exhibit 14.

The Harveys filed a suit for medical malpractice on behalf of Julian on March 27, 1998, against Dr. Rines and Mid-Coast Hospital. They claim that the hospital was negligent in its treatment and supervision of Julian. Specifically, the Harveys claim that the hospital, through its agents and employees, were professionally negligent when they allegedly failed to respond to and treat Julian's seizure activity in a proper and timely fashion. Complaint (Docket No. 1) ¶ 12. In addition to a general denial of negligence, Mid-Coast Hospital asserted several affirmative defenses including assumption of the risk and comparative negligence. Mid-Coast Hospital's Answer (Docket No. 2).

At trial, the Harveys will attempt to show that the hospital nurses failed to timely notify Dr. Rines of the onset of Julian's seizures so that he could undertake timely and appropriate antiseizure treatment. Plaintiff's Statement of Material Facts ¶ 4. The Harveys's experts will testify that had Julian received timely and appropriate treatment the onset of status epilepticus would have been prevented or shortened in duration and Julian would not have sustained neurological damage. Id. ¶ 5.

Experts testifying for Mid-Coast Hospital will contend that Mid-Coast Hospital was not negligent and that the ingestion of the pills directly and proximately caused Julian's neurological brain damage. Defendant's Response to Motion for Partial Summary Judgment ("Defendant's Response") (Docket No. 13) at 6. Specifically, the experts will testify that Julian was more refractory to treatment because of the amount and type of drugs that he ingested and his injuries would have been likely even with the most aggressive treatment. Id. ¶¶ 4, 13.

II. DISCUSSION

Summary judgment is appropriate when the record shows there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). Once the moving party has come forward identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any" which "it believes demonstrate the absence of a genuine issue of material fact," the adverse party can avoid summary judgment only by providing properly supported evidence of disputed material facts that would require trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551-52, 91 L.Ed.2d 265 (1986).

The trial court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that Party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). The Court will not, however, pay heed to "conclusory allegations, improbable inferences [or] unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). If no genuine issue of material fact emerges, then the motion for summary judgment may be granted.

A. Assumption of the Risk

Mid-Coast Hospital has pled the affirmative defense of assumption of the risk. The theory that a plaintiff's negligence claim could be barred because he or she voluntarily assumed the risk was abolished in Maine with the adoption of comparative negligence principles. See 14 M.R.S.A. § 156; Wilson v. Gordon, 354 A.2d 398, 401-03 (Me.1976); Austin v. Raybestos-Manhattan, 471 A.2d 280, 287 (Me.1984). Accordingly, the Harveys' motion for summary judgment will be granted insofar as it asks the Court to dismiss any claim that Julian's voluntary assumption of the risk is an absolute bar to plaintiffs' recovery.

B. Comparative Negligence

The Harveys' Motion for Partial Summary Judgment also calls upon the Court to dismiss, as a matter of law, Mid-Coast Hospital's affirmative defense of comparative negligence.¹ The Harveys contend that, as a matter of law, the principles of comparative negligence do not apply in medical malpractice cases so as to result in the apportionment of damages between a plaintiff who acted negligently in causing an initial injury and a health care provider that negligently treated the plaintiff for the injury. The Harveys' argument, as applied to this case, is that because Julian's attempt to commit suicide² provided only the occasion for the alleged negligent treatment by Mid-Coast Hospital, the evidence that Julian attempted suicide by purposefully ingesting Tegretol may not be presented to the jury as evidence of comparative negligence.

Cases regarding a plaintiff's negligence in medical malpractice actions can be divided, generally, into four categories. The first set of cases are those where the plaintiff fails to follow a physician's advice and instructions; the second set of cases are those where a plaintiff delays seeking or returning for medical attention; the third set of cases are those where a plaintiff has furnished false, incomplete, or misleading information to his or her physician; and the fourth set of cases are those where a patient's negligent or intentional conduct causes the occasion for the medical attention which is the subject of the malpractice action. See Madelyn R. Orr, Defense of Patient's Contribution to Fault in Medical Malpractice Actions, 25 Creighton L.Rev. 665, 676-690 (1992). The present motion raises the narrow question of whether a patient's conduct that provides only the occasion for medical attention, care or treatment which is the subject of a subsequent malpractice action may not be considered in assessing damages pursuant to contributory negligence principles under Maine law. This Court finds that there is no indication that the Maine Law Court would choose not to follow the rule established by the majority of courts that have considered the question. Accordingly, this Court holds that, as a matter of law, a jury may not consider events that occur before the medical treatment that are relevant only insofar as they explain that the plaintiff is responsible for the events that led to his medical treatment.

Although the Law Court has not answered the question presented by the Harveys' motion, case law from other states is replete with instances where a medical provider, charged with negligent treatment or care of a plaintiff, accuses the plaintiff of contributory negligence for behavior that occurred before the patient sought treatment. The majority of courts generally agree that evidence of the patient's negligent or intentional conduct that occurs prior to the negligent treatment and provides only the occasion for a subsequent malpractice claim is inapplicable to the assessment of damages between the patient and the negligent health care provider. See Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178 (1990) (reversing and remanding for a new trial because although plaintiff's failure to lose weight may have been causally related to his injury, his conduct regarding his weight problem merely furnished an occasion or condition for the medical care which is the basis of the malpractice action and it was improper to instruct the jury to consider whether plaintiff had been contributorily negligent.); Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539, 543 (1987) (reversing and remanding for a new trial because jury had been instructed to consider that patient had negligently taken aspirin along with heart medicine prior to the physician's alleged negligence as evidence of contributory negligence); Owens v. Stokoe, 115 Ill.2d 177, 104 Ill.Dec. 694, 503 N.E.2d 251, 254 (1986) (held that evidence of dental patient's failure to obtain second opinion, prior poor oral hygiene,...