Miller v. Dore

• Citation: 154 Me. 363,148 A.2d 692
• Parties: Mary E. MILLER v. Clarence E. DORE.
• Decision Date: 04 February 1959
• Court: Supreme Judicial Court of Maine (US)

Page 692

148 A.2d 692

154 Me. 363

Mary E. MILLER v. Clarence E. DORE.

Supreme Judicial Court of Maine.

Feb. 4, 1959.

Lloyd H. Stitham, Pittsfield, Bird & Bird, Waterville, for plaintiff.

Locke, Campbell, Reid & Hebert, Augusta, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

DUBORD, Justice.

The defendant is a medical doctor engaged in general practice in the City of Waterville. Plaintiff was a married woman, who had previously given birth to two other children and sometime in January 1956 she consulted the defendant and engaged him to attend her in an expected confinement. The evidence indicates the defendant had estimated the awaited child would be born on or about May 16, 1956.

On Saturday, May 19, 1956, the defendant feeling tired out physically from overwork, and in need of a rest, decided to go to Moosehead Lake for a two day fishing trip. He did not personally notify the plaintiff that he would be unavailable during the two days in question. However, before he left, he made arrangements with Dr. Kenneth W. Sewall, head of the obstetrical department of Thayer Hospital of Waterville, for the attendance by Dr. Sewall of defendant's maternity cases during his absence. On the eve of May 20, 1956, the plaintiff became aware of the fact that her accouchement was approaching. Previous reservations having been made by the defendant for the reception of the plaintiff at Thayer Hospital, early in the morning of May 20, 1956, she entered the hospital. Dr. Sewall having been notified, gave instructions concerning medication to alleviate pain and sometime during the forenoon saw the plaintiff at the hospital. When he saw her, she was already on the delivery table ready for the birth of the child. The physician who attended the plaintiff was Dr. Edward M. Southern, associate of Dr. Sewall, and a medical doctor with a good background in the practice of obstetrics. When Dr. Sewall entered the delivery room, Dr. Southern was preparing delivery and upon being assured that 'everything was all right,' Dr. Sewall left the room. Dr. Southern testified that he saw the plaintiff in the labor room and introduced himself to her and informed her that he would attend her. At that time it was a few minutes after 11:00 a. m. The doctor noting that delivery was imminent, ordered that she be moved to the delivery room where a healthy child was born within a very few minutes.

The defendant returned to Waterville that night and resumed the attendance of the plaintiff for post natal care.

Plaintiff brought an action against the defendant for breach of contract and based her claim upon the theory that the defendant had agreed to give her ether or gas at the time of her delivery; that his substitute failed to administer this type of anesthetic, and that as a result she suffered pain, both mental and physical, which otherwise she would not have experienced. She also charged that the defendant failed to notify her that he would be unavailable and thus permit her an opportunity to employ another physician of her own selection, and she further charged that she suffered severe pain and mental anguish, all resulting from defendant's failure to attend her at the time of her labor and delivery of the child.

Subsequently, she was permitted to amend her writ by the addition of another count alleging that Dr. Southern was the agent of the defendant. The jury was instructed by the presiding justice to disregard this additional count on the theory that there was no proof of agency. To this instruction the plaintiff excepted, but the jury having returned a verdict for the plaintiff, this exception was not pressed.

It is clear from the nature of the pleadings and the manner in which the case was tried that plaintiff's claim was predicated in large measure upon an alleged breach of a contract to administer ether or gas. However, we treat the pleadings as broad enough to include an alleged breach of contract, both by reason of alleged failure to give gas or ether, and also failure to notify the plaintiff that he would be unavailable and that pain was suffered by reason of defendant's absence at the time of her delivery.

The jury returned a verdict for the plaintiff and the defendant filed a general motion for a new trial. Exceptions were taken by the defendant to an instruction given by the presiding justice, and also to the refusal of the presiding justice to give certain requested instructions.

We give our attention first to plaintiff's contention that the defendant had agreed to give her gas or ether during the time of her delivery. The only allegation in her writ bearing upon this contention reads as follows:

'That during the term of her pregnancy, the defendant told the plaintiff that gas or ether would be used at the time of delivery, so that plaintiff would have no pain or suffering at the time of delivery.'

There is no averment in the declaration that the defendant agreed to give her gas or ether. However, if the allegation can be construed as being broad enough to allege an agreement that gas or ether would be administered, the evidence is entirely bare of any evidence supporting such a contention. The only evidence in the record is the testimony of the plaintiff, in which she said:

'I asked him (defendant) finally if he gave ether or something, is the way I put it.'

He said:

'Nowadays they give a mixture of ether and gas.'

We are, therefore, convinced that the evidence does not support a finding that the defendant had agreed to give gas or ether.

We give our attention now to some of the rules of law applicable to the relationship of physician and patient, a relationship which is a personal one and which creates obligations which vary from those arising from an ordinary commercial agreement.

The decisions in diverse jurisdictions are conflicting and difficult of reconciliation. That opinions of courts vary is not only due to the fact that dissimilar rules are adopted in different jurisdictions, but the facts and circumstances of each case are not always the same. Moreover, some actions are based upon negligence, while others, as in the instant case, are founded upon an alleged breach of contract. Some actions have been brought against physicians alleging negligence, or breach of contract, for abandonment of the case. Others are predicated upon the temporary absence of the attending physician. In the instant case, we are not concerned with abandonment, but with a temporary leaving of the patient on the part of the defendant. As previously pointed out, the evidence discloses that shortly after the birth of the child, the defendant resumed the attendance of the patient, and insofar as the record indicates, without complaint on the part of the plaintiff.

The following are general rules applicable to the relationship between physician and patient:

'It is the settled rule that one who engages a physician to treat his case impliedly engages him to attend throughout that illness, or until his services are dispensed with. In other words, the relation of physician and patient, once initiated,...