Miller v. Szelenyi

• Decision Date: 26 August 1988
• Citation: 546 A.2d 1013
• Parties: George MILLER et al. v. Ernest SZELENYI et al.
• Court: Maine Supreme Court

Page 1013

546 A.2d 1013

George MILLER et al. v.Ernest SZELENYI et al.

Supreme Judicial Court of Maine.

Argued May 3, 1988.

Decided Aug. 26, 1988.

John F. Shepard, Jr.(orally), Shepard & Shepard, Freeport, Thomas Connolly, Portland, for plaintiffs.

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

James E. Tierney, Atty. Gen., Linda Siberty Crawford(orally), Asst. Atty. Gen., Augusta, for defendants.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, SCOLNIK^* and CLIFFORD, JJ.

GLASSMAN, Justice.

The defendant, Ernest Szelenyi, M.D., appeals from a judgment of the Superior Court, Cumberland County, entered on a special jury verdict finding that Szelenyi, by his gross negligence, had caused the wrongful death of Therese Miller and awarding damages in the amount of $260,000 to George Miller, as personal representative of Therese Miller's estate.The plaintiffs, George Miller, individually and as personal representative of his wife's estate, and their three adult daughters, cross-appeal from the Superior Court's order directing a verdict against them on their additional claims against both Szelenyi and the four additional defendants, Robert Scarlata, M.D., George Zitnay, Robert Welch, and Kevin Concannon(supervisory defendants).¹We affirm the judgment.

Background

Plaintiffs' original and amended complaint alleged the following claims: First, a wrongful death claim by George Miller as the personal representative of Therese Miller's estate pursuant to 18-A M.R.S.A. § 2-804(1981& Supp.1987) against all five defendants, seeking compensatory and punitive damages.Second, a claim against all five defendants on behalf of the decedent's estate seeking compensatory and punitive damages for the deprivation of Therese Miller's life and by the plaintiffs individually against Szelenyi for their asserted right to consortium and companionship with Therese Miller, all pursuant to 42 U.S.C. § 1983(1981), as violations of the due process clause of the fourteenth amendment.Third, a claim against all five defendants for the negligent infliction of plaintiffs' mental and emotional distress.In addition, although not contained in the pleadings, plaintiffs by a trial brief filed eight days before trial sought compensatory and punitive damages under section 1983 for a conspiracy among all the defendants to conceal the facts surrounding Mrs. Miller's death.

Prior to trial, the Superior Court, inter alia, 1) granted the defendants' motion to dismiss the claims for plaintiffs' emotional and mental distress and for punitive damages; 2) denied Szelenyi's motion to dismiss the wrongful death claim for lack of notice under the Maine Tort Claims Act (MTCA), 14 M.R.S.A. § 8107(1)(1980); and 3) denied the supervisory defendants' motion to dismiss the section 1983 claims against them.²The Superior Court also denied Szelenyi's subsequent motion requesting summary judgment on the section 1983 claims against him.

After five days of trial, and over the plaintiffs' objection, the Superior Court bifurcated the issues and the defendants in this case.In Phase I the jury heard evidence relating only to the wrongful death action of George Miller, as personal representative of the decedent's estate, against Dr. Szelenyi pursuant to 18-A M.R.S.A. § 2-804(1981& Supp.1987).³The jury returned a special verdict against Szelenyi at the close of Phase I finding him grossly negligent and awarded damages in the amount of $260,000.In Phase II the jury heard the plaintiffs' evidence on the wrongful death claim against the four supervisory defendants and the section 1983 actions against all five defendants.At the close of the plaintiffs' evidence in Phase II, the Superior Court granted the defendants' motions for a directed verdict.

I. Szelenyi's Appeal from Phase I

In Phase I of the trial, the jury heard the following evidence: On January 29, 1983 at about 6:40 a.m. Therese Miller collapsed while on duty as a nurse's aide at the Benda Hospital of the Pineland Center.Within one minute of her collapse Darlene Turner, R.N., had started cardio-pulmonary resuscitation (CPR).Within another minute or two, nurses Doris Babbidge and Arlene Sprague also arrived on the scene.An ambulance from Gray Ambulance Service was immediately called to transport Mrs. Miller to the Maine Medical Center, which had much better emergency facilities.At this point she was not breathing on her own and she had no carotid pulse.Nevertheless, her pupils responded to light indicating that her brain still retained oxygen.At some point several minutes into the resuscitation effort Mrs. Miller took several breaths on her own.While CPR was being continued, Babbidge wheeled up a "crash cart" that contained a defibrillator, or electric shock machine, used to facilitate CPR.

Dr. Szelenyi arrived on the scene 10 or 15 minutes after Mrs. Miller's collapse.Szelenyi's shift as an on-call physician at the hospital was due to end at 8 o'clock that morning, and Szelenyi had been asleep just prior to the emergency.For the most part, Szelenyi simply watched the resuscitation effort from the nurses station.He did, however, 1) pronounce Mrs. Miller dead "within a matter of minutes" from his arrival and without any genuine physical examination of her, 2) prevent any use of the electric shock machine, stating his insurance did not cover his treatment of Pineland employees, and 3) urge that she be moved to a bed, though CPR, which requires a hard surface, was still being performed.The Gray ambulance arrived 35 or 40 minutes after Mrs. Miller's collapse.At Maine Medical Mrs. Miller was defibrillated and she momentarily regained a voluntary heartbeat, but was eventually pronounced dead.

Szelenyi's deposition was read in toto to the jury in lieu of his in-court testimony.In his deposition Szelenyi maintains that the defibrillator was never required because Therese Miller was dead "before she went down from the chair."Moreover, he stated he did not "even think about" insurance, let alone prevent use of the defibrillation machine on that basis.Szelenyi put on only one witness, nurse Arlene Sprague.Sprague testified that she did not recall Szelenyi making any reference to insurance.

A.Jury Selection

Szelenyi first contends that the Superior Court abused its discretion in denying his motion for a mistrial.During jury selection voir dire, the court inquired if any panel member had ever been employed at a state mental institution or prison.Panel member number 86 stated that she had done consulting work at both the Augusta Mental Health Institute and the Pineland Center.Later the panel was asked whether any one of them had ever experienced serious dissatisfaction with his own medical treatment and, if so, would it be difficult to remain fair and impartial in the case at hand.In response, number 86 indicated that it would be difficult for her to remain impartial because she and her family had "a lot of problems in communication [with doctors]," and that she had "been [i.e., worked] in institutions similar to Pineland and ... [had] a somewhat jaded view of physicians that have been hired in institutions."Szelenyi moved for a mistrial based upon the prejudicial effect of number 86's statements on the other panel members.

We review the Superior Court's ruling on a motion for mistrial only for an abuse of discretion.Brubach v. Almy, 520 A.2d 334, 340(Me.1987).Olsen v. French, 456 A.2d 869, 876(Me.1983).Here, the Superior Court did not abuse its discretion.Following the motion for mistrial number 86 was asked no further questions in open court.At a chambers conference with counsel present, number 86 recounted her answers given in open court⁴ and stated that she had not discussed her views in private with other panel members.Thereupon, the trial court excused number 86 from future service on the case.Unlike the panel member in Woolley v. Henderson, 418 A.2d 1123, 1127(Me.1980), on being excused number 86 did not remain in the courtroom or answer additional questions in open court.Moreover, the court specifically asked the remaining panel members whether number 86's statements had influenced them or would prevent any of them from being fair and impartial.There was no response, and the court told the panel that he understood the silence to mean there was no problem.Thus, the "composite inference"(id.) here is that there was no resulting prejudice, and the denial of the mistrial was not an abuse of discretion.

B.Opening and Closing Statements

Szelenyi next claims that plaintiffs' counsel improperly discussed facts not in evidence and gave his personal opinion of the evidence.Szelenyi's first argument is directed primarily to the opening statement of plaintiffs' counsel in which he referred to an alleged cover-up by the supervisory defendants designed to prevent dissemination of the facts surrounding Mrs. Miller's death.Immediately following the opening statement, Szelenyi's counsel objected and requested a curative instruction.The court overruled the objection and no curative instruction was given.

The trial court has discretion to determine both the prejudicial effect of any claimed improper conduct by counsel and what corrective measures should be taken.Minott v. F.W. Cunningham & Sons, 413 A.2d 1325, 1333(Me.1980).In an opening statement counsel should properly outline for the jury only evidence that he intends in good faith to introduce and that he reasonably believes will be admitted.75 Am.Jur.2dTrial§§ 208, 209(1974);Smith v. Covell, 100 Cal.App.3d 947, 959, 161 Cal.Rptr. 377, 384(1980);Schwedler v. Galvan, 46 Ill.App.3d 630, 639-640, 4 Ill.Dec. 891, 898, 360 N.E.2d 1324, 1331(1970).Here, the trial court had provisionally ruled that the plaintiffs' claim of conspiracy could remain in the case.⁵It was only after several days of trial of the plaintiffs' case, but...