 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
WELCH v. MCCARTHY6/17/1996
pursuant to a M.R.Civ.P. 12(b)(6) motion to dismiss.
24 M.R.S.A. § 2853(5) (Pamph. 1995).
We have not expressly determined whether section 2853(5) contemplates the Superior Court's consideration of motions for a summary judgment. See Gubellini v. Wilson, 541 A.2d 1290, 1290 n. 2 (1988) (affirming a summary judgment on statute of limitations basis, without intimating an opinion on the procedure); see also Ogden v. Berry, 572 A.2d 1082, 1083-84 (1990) (affirming a summary judgment on the basis of statute of limitations without addressing whether the Superior Court was precluded from considering the motion).
In the instant case the pre-litigation panel chair granted McCarthy's request to litigate in court the statute of limitations defense. Based on the plain meaning of the language of 24 M.R.S.A. § 2853(5) the Superior Court was not precluded from considering a motion for a summary judgment based on the affirmative defense of the statute of limitations prior to the panel's consideration of the case. M.R.Civ.P. 8(c).
II.
The Welches contend that McCarthy negligently failed to warn Joanne within the
The statute of limitations for 24 M.R.S.A. § 2902 (1990) (emphasis added). The plaintiff in an action alleging professional negligence must prove that the defendant had a duty to the plaintiff to conform to a certain standard of conduct and that a breach of that duty proximately caused the plaintiff's injury. Fisherman's Wharf Assocs. II v. Verrill & Dana, 645 A.2d 1133, 1136 (Me. 1994). In medical malpractice actions expert testimony is ordinarily required to establish the appropriate standard of medical care, that the defendant departed from that standard, and that the plaintiff's injury was proximately caused by the negligent conduct. Chasse v. Mazerolle, 622 A.2d 1180, 1182 (Me. 1993).
Whether a party owes a duty of care to another is a question of law. Williams v. Inverness Corp., 664 A.2d 1244, 1246 (Me. 1995). The breach and proximate cause issues are questions of fact. Green-street v. Brown, 623 A.2d 1270, 1272 (Me. 1993); Seiders v. Testa, 464 A.2d 933, 935 (Me. 1983). A person who undertakes to render services in the practice of a profession owes a duty to exercise that degree of skill, care and diligence exercised by members of that same profession. Fisherman's Wharf Assocs., 645 A.2d at 1136. Under the circumstances of this case it is a question of fact whether McCarthy breached that duty by failing to warn Joanne about later discovered dangers of the implants he inserted in her body.
In Tresemer v. Barke, 86 Cal.App.3d 656, 150 Cal.Rptr. 384, 392-94 (1978), the court found that the plaintiff stated a cause of action against the physician, who had inserted an intrauterine device, on the theory that the physician had failed to warn her of dangerous effects of the device, when subsequent to the insertion the physician obtained factual knowledge of its hazards. Such failure constituted a negligent breach of the duty to warn arising by virtue of the confidential relationship between the physician and the plaintiff. Id. 150 Cal.Rptr. at 394; cf. Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992) (manufacturer's duty to warn extends only to physician, who then has the duty to warn patients of risks associated with prescription drugs or medical devices).
The affidavit of the Welches' expert states that between November 9, 1987, and August 26, 1992, McCarthy had an affirmative duty to contact Joanne to schedule an appointment to x-ray her jaw and recommend removal of the implants because of the oral surgical literature reporting problems with these implants. In the expert's opinio
Page 1 2 3 Maine Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|