Vincent v. Molin

/

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DOCKET NO. CV-00-239

DEANNA VINCENT,

Plaintiff

v ORDER

MELINDA MOLIN, M.D., et al,

Defendants

‘JUL 26 2008

Before the court is defendant Mercy Hospital’s motion for summary judgment.

After the motion was fully submitted, plaintiff filed a motion for leave to supplement

her opposing statement of material facts to add references to certain deposition

testimony that had not been available at the time the motion was briefed. No

opposition was filed to that motion, and the court therefore accepts and has reviewed

plaintiff's supplemental opposing statement of material facts, filed May 14, 2004.

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties’ Rule 56(h) statements.

See Handy Boat Service, Inc. v. Professional Services, Inc., 1998 ME 134, 7 16, 711 A.2d

1306, 1310 (construing former Rule 7(d)). The facts must be considered in the light most

favorable to the non-moving party. E.g., Panasonic Communications & Systems Co. v.

State of Maine, 1997 ME 43, T10, 691 A.2d 190, 194. Thus, for purposes of summary

judgment, any factual disputes must be resolved against the movant. Nevertheless,

when the facts offered by a party in opposition to summary judgment would not, if

offered at trial, be sufficient to withstand a motion for judgment as a matter of law,

summary judgment should be granted. Harkness v. Fitzgerald, 1997 ME 207 { 5, 701

A.2d 370, 372.

In this action Vincent is claiming that a surgeon, Melinda Molin, and a plastic

surgeon, John Cederna, committed malpractice in a number of respects in connection

with a mastectomy operation that was performed on September 14, 1999. Vincent’s

claims against Mercy are primarily based on the allegation that Mercy’s nurses

committed professional negligence by not taking appropriate action in connection with

the process of obtaining informed consent to prevent Vincent from being subjected to

an operation to which she had not consented. Vincent also claims that Mercy should be

held vicariously liable for any professional negligence on the part of Dr. Molin.

Once again, the summary judgment submissions by the parties are far from

ideal." One might question whether the nine-page, 102-paragraph statement of material

facts submitted by Mercy constitutes a “short and concise” statement as required by

Rule 56 (h)(1). Any deficiencies in this respect, however, are eclipsed by the 67-page

responding statement of facts submitted by Vincent. Fifty-four pages of that

submission consist of responses to Mercy’s Statement of Material Facts. Many of those

pages contain largely unfounded objections and motions to strike contending that

Mercy’s statements are not supported by record references. “Some of the remaining

pages contain lengthy recitations of portions of the record which are favorable to

"See order filed June 10, 2004 on defendant Molin’s motion for partial summary judgment.

* In each case, the court has reviewed the record reference in question. In the majority of cases

Vincent's objections are without merit. See, e.g., Vincent’s objections to {{10, 24-26, 32-34, 36,

39, 41, 54, 58, 65, 73, 76, 79, 86 of Mercy’s SMF.

fo

Vincent's case, whether or not those are in any way responsive to the specific numbered

paragraphs which Vincent is purportedly addressing.? The remaining thirteen pages of

Vincent's Statement of Material Facts consist of 103 paragraphs of additional facts

submitted by Vincent.

Notwithstanding the deficiencies in the parties’ submissions, the court has

considered the factual statements submitted by the parties, the record support (or lack

of same) for the facts asserted, and the respective objections of the parties as to whether

evidence is admissible. In ruling on this motion, it has disregarded any factual

statements not supported by the cited record references or not supported by admissible

evidence.*

Because the vicarious liability issue is more straightforward, it will be considered

first.

1. Vicarious Liability - Agency

The court concludes that there is no dispute that Dr. Molin is an independent

contractor rather than an employee of Mercy Hospital. As Vincent points out, however,

that does not necessarily end the inquiry as to whether Molin was nevertheless an agent

of Mercy. Notwithstanding the existence of an independent contractor relationship, a

party can expressly or impliedly authorize someone to act as its agent by manifesting

* See, e.g., Vincent SMF [J 2-5, 7, 9, 33-35, 37, 51, 58, 60, 63-64, 82-85, 90-92. In those instances

where she is on target, Vincent has raised a number of genuinely disputed facts. However, her

consistent approach has been to employ a blunderbuss instead of the rifle contemplated by Rule

56.

* The court has undertaken this exercise notwithstanding the problems presented by the parties’

submissions for two reasons. First, the trial of this case has the potential, with three defendants

and an expected trial length of longer than one week, to be unwieldy, and if there are issues or

parties that should be eliminated prior to trial, it is in the interest of clarity and efficiency to do

so. Second, since the majority of deficiencies are attributable to Vincent, who is opposing

summary judgment, it would be unfair to penalize Mercy as the movant by declining to

consider the motion prior to trial.

consent that the person act on its behalf and subject to its control. See, e.g., Libby v.

Concord General Mutual Insurance Co., 452 A.2d 979, 891-82 (Me. 1982). No evidence

has been offered that Dr. Molin was ever expressly authorized to act as Mercy’s agent,

but Vincent argues that there is a genuine issue for trial as to whether Dr. Molin was

impliedly authorized to act as Mercy’s agent.

The court disagrees, Looking to the factors cited in Legassie v. Bangor

Publishing Co., 1999 ME 180 16, 741 A.2d 442 444 and n.1., which both sides have cited

in their memoranda, the “vital issue” is whether the hospital controlled, or had the right

to control, the manner in which Dr. Molin performed her duties. Id., quoting

Timberlake v. Frigon & Frigon, 438 A.2d 1294, 1296 (Me. 1982). To rebut Mercy’s

showing that it did not control or have the right to control Dr. Molin, see Mercy’s

Statement of Material Facts (SMB) filed February 17, 2004, 1188-97, Vincent cites only

two pieces of evidence relevant to the issue of control: a hospital policy requiring

physicians to obtain informed consent and a nurse’s testimony that there was also a of

hospital policy calling for an examination within 30 days of surgery. See Vincent's

Opposing SMF filed March 12, 2004, 7193-94, citing to Brown Dep. 19; Silverman

Affidavit {14 and Molin Dep. 79.5 The existence of such policies does not constitute the

kind of control that would make Dr. Molin an agent of the hospital.

Given the history of freedom from control enjoyed by doctors, the Law Court has

recognized that they “have traditionally been considered independent contractors”.

Gafner v. Down East Community Hospital, 1999 ME 130 143, 735 A.2d 969, 979, See

Andrews v. Davis, 128 Me. 464, 469, 148 A. 684, éfo (Me. 1930), quoting Pearl v. West

End Bay, 176 Mass. 177, 179, 57 N.E. 339 (1900) (Holmes, J.). Under these circumstances,

the court has some doubt that it needs to consider the other factors cited in the Legassie

° None of the other portions of the record cited by Vincent in response to [988-97 of Mercy’s

SMF have any bearing on the issue of control.

case as relevant to the determination of whether a specific occupation creates an agency

or independent contractor relationship. In the court's view, Legassie primarily

addresses the issue of how to evaluate an unknown job category, not a known

profession.

Nevertheless, even if all the Legasse factors are scrutinized, the facts offered by

Vincent are insufficient to create a disputed issue for trial in light of lack of Mercy’s

control over Molin and the traditional independent contractor status of doctors.°

2. Vicarious Liability ~ Apparent Agency

Whether or not Dr. Molin was actually an agent of Mercy Hospital, Mercy can be

held vicariously liable for her negligent acts if Mercy’s conduct justifiably led Vincent to

believe that Dr. Molin was the hospital’s agent. See Steelstone Industries v. North

Ridge Ltd., 1999 ME 132 113, 735 A.2d 980, 983; Williams v. Inverness Corp., 664 A.2d

1244, 1246 (Me. 1995); Restatement, Second, Agency §§27, 267 (1958). On this issue the

court concludes that there is a disputed issue of fact for trial. Although the evidence in

the summary judgment record is far from detailed on this issue, there is evidence that

Dr. Molin was the director of the Mercy Hospital Breast Health Resource Center, that

Dr. Molin’s office was located in Mercy Hospital, that Dr. Molin was understood by

Vincent to be the head of Mercy’s breast cancer center, and that Vincent relied on Dr.

Molin’s connection with Mercy. See Vincent’s Opposing SME {88 , citing Molin Dep. 8,

10, and Vincent Dep. 38, 78-79,”

If Mercy vested Dr. Molin with the title of director of the “Mercy Hospital Breast

Health Resource Center,” there is an issue for trial as to whether Marcy led Vincent to

justifiably believe that Dr. Molin was an agent of the hospital. On an apparent agency

theory, Mercy’s motion for summary judgment is denied with respect to count VI of the

complaint.

3. Direct Liability for N egligence by Nurses

The remaining major issue on the pending motion is whether Mercy should be

granted summary judgment on Vincent’s claims that the Mercy Hospital operating

room nurses engaged in professional negligence. That issue primarily revolves around

the issue of expert testimony — whether the expert offered by Vincent with respect to

the standard of care applicable to nurses is qualified to render an opinion that the

Mercy nurses violated the applicable standard of care and if not, whether Vincent can

establish the relevant standard of care in some other fashion.

Vincent argues that any challenges to her nursing expert’s qualifications should

be raised on a motion in limine rather than on a motion for summary judgment. The

court is inclined to disagree. However, there is some doubt on this issue given that the

standard for appellate review of a decision to exclude an expert differs from the

standard for appellate review of a decision on summary judgment. See, e.g., General

Electric Corp v. Joiner, 522 U.S. 136, 138-39 (1997)(decision to admit or exclude expert

testimony renewed under abuse of discretion standard); Curtis v. Porter, 2001 ME 158

’ Vincent has also cited to a brochure for the Breast Health Resource Center at the Hospital, but

the court agrees with Mercy that the brochure has never been authenticated and is not

admissible evidence for purposes of summary judgment.

6

16, 784 A.2d 18, 21 (decision on motion for summary judgment reviewed for errors of

law). The court does not have to resolve this issue because it concludes that even

without the testimony of Danny Ducello (Vincent’s nursing expert), Vincent has

demonstrated the existence of a genuine issue for trial.

AS an initial matter, the court agrees that it is questionable whether Ducello’s

expert opinions are admissible. Nurse Ducello is undoubtedly qualified to offer

opinions with respect to nursing issues with which he is familiar but that does not mean

he is qualified to offer opinions with respect to the standard of care applicable to

operating room nurses and whether that standard has been violated. Ducello candidly

admitted he has no operating room experience. Ducello Dep 27-28, 50, cited in Mercy’s

February 17, 2004 SMF 468.3 Without such experience, there is a significant question

whether Ducello is qualified to express opinions on how the general nursing principles

he sets forth should have been applied by the circulating operating room nurses in this

case,

This problem demonstrated by the fact that Ducello had to inquire of a

tepresentative of the American Association of Operating Room Nurses to determine

Whether there was any difference, with Tespect to informed consent, between the

responsibilities of Operating room circulating nurses and the responsibilities of other

nurses. Ducello Dep. 64-66, cited in Vincent’s March 12, 2004 SMF 780. Ducello

testified that he was told in a Phone call with a representative of the association that

there was no difference. Id. In the court’s view, Ducello’s need to make this inquiry not

* Mercy faults Ducello for not knowing the difference between a subcertaneous and a simple

mastectomy before he was contacted about this case. That is not a disqualifying factor given

that Ducello’s opinion is that nurses, when presented with unfamiliar medical procedures, are

supposed to research them in order to be able to understand them. Moreover, while Mercy’s

Own nursing expert had a general idea of the differences between the procedures in question

Prior to this case, he readily acknowledged that he did not know the different nuances of one

procedure versus the other. McFaden Dep. 17.

necessary in this case. Compare Walter v. Wal-Mart Stores, Inc. 2000 ME 63 31, 748

ret tores, Inc., J

oO

* In contrast to Forbes v. Osteopathic Hospital , 952 A.2d 16, 17-18 (Me 1988), this is not a case

where the hospital filed an unsupported motion that did not rule out the possibility that the

plaintiff could prevail without expert testimony. In this case, the Hospital’s motion offers

sufficient undisputed facts from which the court can conclude that the issue is one on which

plaintiff can only prevail if she offers expert testimony. :

8

violated.

Specifically, McFaden’s testimony that a nurse should confirm with the patient

Opposing SMF 913.”

*° Vincent’s ability to offer admissions by the Mercy nurses, who have not been designated as

experts, is problematic at best under Pitt v. Frawley, 1999 ME 5 119-10, 722 A.2d 358, 361-62.

With respect to Dr. Weinberg, Vincent has not on this record demonstrated that Dr. Weinberg is

qualified to offer opinions with respect to nurses. In addition, while Weinberg opined that

there was at least one breach of the standard of care, Weinberg Dep. 91, cited in Vincent's March

12, 2004 SMF 941, he did not offer any opinion that this breach caused injury to Vincent.

post-operative incident report in the file, which would have been too late to prevent any harm

to Vincent. Weinberg Dep. 95-96, cited in Vincent March 12, 2004 SMF 735.

“7 See McFaden Dep. 47, 100-01, 114-15, 131-32, cited in Vincent's Supplemental Opposing SMF

filed May 14, 2004 (18-12, 14.

* Vincent also notes that McFaden testified it was not appropriate for the nurses to have

accepted a history and physical examination form from Dr. Molin that was dated more than 30

that this caused harm to Vincent. This is not a case where Vincent's physical condition or

history had changed during the period between July 1999 and the September 1999 operation in

a way that had a negative impact on the outcome of the procedure.

9

4, Other Issues

any medical procedures against Vincent’s will. These are the requisites for battery. Se

—=—

Woolley v. Henderson, 418 A.2d 1123, 1133 (Me. 1980). Similarly, Vincent has not

raised a genuine issue for trial as to whether Mercy’s actions were either intentional,

reckless, extreme, or outrageous within the meaning of Restatement, Second, Torts §46,

and summary judgment is therefore granted as to count IV.

The court also agrees with Mercy that Vincent has not stated a Separate claim for

negligent infliction of emotional distress nor raised a genuine issue for trial on such a

claim. This requires that summary judgment to be granted for Mercy as to count V.

This ruling will in no Way preclude Vincent from Tecovery of damages for emotional

distress if she prevails on Counts I and VI.

The entry shall be:

10

The motion by defendant Mercy Hospital for summary judgment is granted in

part and denied in part. As to counts IT (Negligence) and VI (Vicarious Liability for Dr,

Molin), the motion is denied. As to counts HI, IV, and V of the complaint (Battery,

clerk is directed to incorporate this order in the docket by reference pursuant to Rule

79a).

Dated: Je Z3, wor

Thomas D. Wa

tren

Justice, Superior Court

ll

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