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Walker v. MaineGeneral Medical Center3/27/2002
e occasion for the medical malpractice, and it concluded that this Court would agree with the majority rule. Id. at 35-37.
Although we have not addressed the fourth category of cases discussed in Harvey, we have decided cases involving the first and second categories. In Merrill v. Odiorne, 113 Me. 424, 425, 94 A. 753, 753 (1915), we held that it was a patient's duty to follow the physician's reasonable instructions and submit to reasonable treatment. The malpractice claim of a patient who breached the duty and whose negligence directly contributed to the injury was barred at common law before the enactment of comparative negligence. We granted the doctor's motion for a new trial in Merrill because the jury did not give due consideration to the evidence of the plaintiff's negligence. Id. at 425, 94 A. at 754.
The rule of Merrill has been applied consistently, although it has not barred recovery or led to a reduction of damages in any of the subsequent reported decisions. See Hauser v. Bhatnager, 537 A.2d 599, 601 (Me. 1988) (jury not compelled to find plaintiff negligent because failure to keep scheduled follow-up appointment may not have caused or contributed to injury); Crosby v. Grandview Nursing Home, 290 A.2d 375, 381-82 (Me. 1972) (uncontested evidence showed patient not negligent in failing to follow instructions to wear supportive shoes after treatment of foot injury); Josselyn v. Dearborn, 143 Me. 328, 340, 62 A.2d 174, 181 (1948) (contributory negligence instruction not generated where plaintiff followed instructions and did not mislead doctor). These cases indicate that the federal court correctly summarized our law when it stated: "under Maine law a jury may limit or deny a plaintiff's recovery in a medical malpractice action when he or she is found to have acted negligently in the course of his or her medical treatment." Harvey, 36 F. Supp. 2d at 37.
Patricia does not contest that this is a correct statement of Maine law, and she agrees that it was applicable in her case against Dr. Omsberg. Patricia, however, contends that, as far as the hospital is concerned, any negligence by Ralph merely provided the occasion for the hospital's negligent treatment, which under Harvey would not warrant submitting the hospital's comparative fault defense to the jury.
Thus, the crux of Patricia's argument is her attempt to distinguish the position of the hospital on the issue of comparative negligence from that of Dr. Omsberg. This, however, is a distinction she never raised during the trial. She did not make a motion for judgment as a matter of law at the close of the evidence pursuant to M.R. Civ. P. 50(a). Her general objection to the comparative negligence instruction did not bring her present argument to the court's attention.
When the grounds for an objection were not "stat distinctly," M.R. Civ. P. 51(b), our review is for obvious error. Reno v. Townsend, 1997 ME 198, 4, 704 A.2d 309, 311; Fuller v. Cent. Me. Power Co., 598 A.2d 457, 460 (Me. 1991). Patricia raised her argument for the first time after trial in a motion for judgment as a matter of law, purportedly pursuant to M.R. Civ. P. 50(b). A Rule 50(b) motion, however, is properly a renewal of the earlier motion; failure to make a timely Rule 50(a) motion therefore waives appellate review of the denial of the post-trial motion. Nordic Sugar Corp. v. Me. Guar. Auth., 447 A.2d 1239, 1241 (Me. 1982); see also 9 Moore's Federal Practice § 50.91 (3d ed. 2001); 9A Wright & Miller, Federal Practice & Procedure § 2540, at 368 (2d ed. 1995). Patricia has waived any appellate review of the denial of her motion for the judgment as a matter of law, and we review the court's decision to g
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