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Moylan v. Wu

Superior Court of Maine, Cumberland

December 16, 2016

CORNELIUS MOYLAN, et al., Plaintiffs,
LESLIE WU, M.D., et al., Defendants.



          Before the court is a motion for partial summary judgment by defendants Leslie Wu, M.D., and Maine Surgical Care Group.

         Defendants 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.

         Defendant 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.

         Summary judgment

         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. 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 924.

         Cornelius Moylan's NIED Claim

         This 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).[1] Accord, Plaintiffs' Statement of Additional Facts [Plaintiffs' SAMF) ¶¶ 1, 30.

         In 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.

         Although 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, [2]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.

         That is 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.

         Accordingly, 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.

         Patricia ...

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