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Powell v. Catholic Medical Center3/21/2000
Hillsborough-northern judicial district
The defendants, Catholic Medical Center (CMC) and Lynn Curtis, M.D. (Dr. Curtis), appeal from a judgment of the Superior Court (Sullivan, J.) entered on a jury verdict for the plaintiff, Cheryl L. Powell. The defendants contend that the trial court erroneously: (1) ruled that RSA 329:31 (1995) did not preempt the plaintiff's common law claim of duty to warn; (2) instructed the jury regarding that common law duty; (3) failed to require expert testimony on the physician's duty to warn; and (4) admitted into evidence medical reports that post-dated the underlying assault involved in this action. We affirm.
On June 8, 1993, a seventy-six-year-old patient was admitted into the rehabilitation medicine unit (RMU) at CMC after suffering a stroke. At the time of his admission, the patient suffered from memory problems, confusion, fluctuating mental status, multiple skin lesions, and partial paralysis on his left side. Dr. Curtis, medical director of the RMU, was the patient's treating physician and examined him daily. Progress reports for the period prior to the assault show that the patient was "lunging forward and pushing away" and becoming agitated. Other reports prior to the assault state that the patient was "very restless requiring 1:1 supervision for safety," reported to be banging into people with his wheelchair, threatening to kick and/or hit, and pushing nurses and therapists aside.
The plaintiff, a phlebotomist employed by New Hampshire Medical Laboratories (NHML), was under contract to draw blood samples from patients throughout CMC. The plaintiff drew blood from the patient on June 11 and 17 without incident. On June 19, the plaintiff attempted a routine blood draw from the patient. The patient assaulted her, causing injury to her left arm. The plaintiff received no warning regarding the patient's violent propensities prior to the assault.
The plaintiff brought suit, alleging that both CMC and Dr. Curtis breached their duty to warn her of the patient's potentially assaultive behavior about which the defendants knew or should have known. The jury returned a verdict for the plaintiff and apportioned liability between CMC and Dr. Curtis. Both defendants moved for judgment notwithstanding the verdict. The trial court denied these motions, and this appeal followed.
I. RSA 329:31
The defendants first argue that the plaintiff's common law duty to warn claim was preempted by RSA 329:31. The trial court found that the statute did not apply because the patient did not communicate an intent to harm a reasonably identifiable victim.
"The interpretation of a statute is to be decided ultimately by this court." Petition of Walker, 138 N.H. 471, 474, 641 A.2d 1021, 1024 (1994). We begin "by examining the plain language of the statute using the ordinary meanings of the words to determine legislative intent." Id.
RSA 329:31 states:
I. A physician licensed under this chapter has a duty to warn of, or to take reasonable precautions to provide protection from, a client's violent behavior when the client has communicated to such physician a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property.
II. The duty may be discharged by, and no monetary liability or cause of action may arise against, a physician licensed under this chapter if the physician makes reasonable efforts to communicate the threat to the victim or victims, notifies the police department closest to the client's or potential victim's residence, or obtains civil commitment of the
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