D. WARREN JUSTICE SUPERIOR COURT
the court is a motion for partial summary judgment by
defendants Leslie Wu, M.D., and Maine Surgical Care Group.
are seeking summary judgment on the independent claims for
negligent infliction of emotional distress (NIED) brought by
both plaintiff Cornelius Moylan and by Patricia Moylan.
Maine Surgical Care Group is also seeking partial summary
judgment on all claims except a claim of vicarious liability
for the alleged negligence of Dr. Wu. Plaintiff does not
oppose this aspect of defendants' motion, and accordingly
plaintiffs' claim against Maine Surgical Care Group will
be limited to their claim of vicarious liability.
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. E.g., Johnson v.
McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts
must be considered in the light most favorable to the
non-moving party. Id. 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.
Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d
Moylan's NIED Claim
lawsuit arises from a laparoscopic hernia repair performed on
plaintiff Cornelius Moylan by Dr. Wu on October 16, 2011. Mr.
Moylan's expert witness has alleged that Dr. Wu was
professionally negligent in two respects. The first is that
she allegedly violated the standard of care by failing to
inspect Mr. Moylan's bowel more closely after surgery to
ensure that she had not caused an enterotomy [perforation) of
the bowel. The second is that she allegedly violated the
standard of care by failing to perform a follow up
exploratory surgery sooner than she did when Mr. Moylan began
exhibiting signs and symptoms indicating that a perforation
had occurred. Defendants' Statement of Material Facts
dated July 28, 2016 [Defendants' SMF) ¶ 4, as
qualified by Plaintiffs' Statement of Material Facts
[Plaintiffs' SMF). Accord, Plaintiffs' Statement
of Additional Facts [Plaintiffs' SAMF) ¶¶ 1,
addition to his claim against Dr. Wu for professional
negligence and his vicarious liability claim against the
Surgical Care Group, Mr. Moylan has asserted a separate NIED
claim against Dr. Wu. However, any and all emotional distress
that Mr. Moylan suffered as a result of Dr. Wu's alleged
professional negligence will be compensable in the damages
recoverable if Dr. Wu is found liable for professional
negligence. Where damages for emotional distress are already
available if a defendant is found liable for a separate tort,
the NIED claim is usually subsumed in any award entered on
the separate tort. Curtis v. Porter, 2001 ME 158
¶ 19, 784 A.2d 18.
Plaintiffs argue that this case falls within the exception
allowing recovery for negligent infliction of emotional
distress when a special relationship exists between the
alleged tortfeasor and person emotionally harmed. See
Curtis v. Porter, 2001 ME 158 ¶ 19. In this
connection they cite Bolton v. Came, 584 A.2d 615
(Me. 1990), which permitted a patient to pursue a NIED claim
based on negligence by her radiologist in not making a timely
lung cancer diagnosis when the evidence also showed that the
cancer was in such an advanced state that earlier diagnosis
and treatment would not have made any difference in the
outcome. 584 A.2d at 616. In Bolton the Law Court
found that the plaintiff could potentially recover damages
for emotional distress in not having the diagnosis in a
timely manner and from worry as to whether or not treatment
opportunities had been missed. Id.
the Bolton opinion relies on Gammon v,
Osteopathic Hospital of Maine, 534 A.2d 1282 (Me. 1987)
and the foreseeability analysis in Gammon has since
been limited, Bolton remains good law.
Bolton, however, involves a situation where it
appears that the patient could prove that her radiologist had
been negligent but could not prove that she had suffered any
resulting medical injury.
not this case. As set forth above, plaintiffs allege that as
a result of Dr. Wu's negligence, the perforation of Mr.
Moylan's bowel was not discovered at the time of Dr,
Wu's original surgery and that Dr. Wu was also negligent
in not more promptly performing a second surgery - which led
to infection and a significant deterioration of Mr.
Moylan's condition. Plaintiffs' SMF ¶¶ 1,
3, 20, 30-34, 46-49, 54-55, 58. Mr. Moylan is not alleging
that Dr. Wu was negligent and caused him severe emotional
distress but that her negligence did not cause him to
experience any injury other than emotional distress. Nowhere
in the summary judgment record is there any suggestion that,
if Mr. Moylan proves that Dr. Wu was negligent, there would
nevertheless be a basis for a finding that Dr. Wu's
negligence did not cause any physical injury to Mr. Moylan.
this case does not fit within Bolton's narrow
exception for cases where if negligence can be proven,
recovery for emotional distress would be available because
there can be no recovery for any physical injury. Under those
circumstances, Mr. Moylan's freestanding NIED claim is
not viable. He will nevertheless be able to recover for any
emotional distress he experienced as well as any pain and
suffering he experienced caused by professional negligence on
the part of Dr. Wu.