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NELSON v. FLANAGAN6/7/1996
This case is before us on report, pursuant to M.R.Civ.P. 72(c), of an interlocutory order entered in the Superior Court (Kennebec County, Atwood, J.) granting the defendants' motion for a summary judgment against Alfred Nelson, Sr., and his son, Alfred, Jr. on their claims for negligent infliction of emotional distress (NIED). The Nelsons argue that the court (Crowley, J.) incorrectly applied Maine law with regard to such claims or in the alternative that Maine should recognize a distinction between NIED claims that result from medical misdiagnosis and other NIED claims. We affirm the judgment.
Joyce Nelson, the wife and mother of the two plaintiffs, died sometime around midnight on June 12, 1987. The events leading to her death may be summarized as follows. In September 1986 Joyce injured her back. In February 1987 Joyce began complaining that the pain in her back was traveling to her stomach area. Joyce complained about the pain in her stomach approximately once a week. Throughout this time Joyce was examined by at least two doctors, neither of whom was able to diagnose her condition. On June 11, 1987, Joyce was bedridden with pain for the first time. Alfred, Sr., cared for her throughout the day and evening. At approximately 12:45 a.m. on June 12 Alfred, Sr., called Alfred, Jr., an emergency medical technician with the Augusta Fire Department, seeking advice. Alfred, Jr., told his father to call an ambulance and have Joyce taken to the emergency room at Kennebec Valley Medical Center.
At the hospital Joyce was treated by Dr. Flanagan. Alfred, Sr., sat approximately eight to ten feet away from Joyce while she was examined by Flanagan, and overheard his wife tell Flanagan that her pain went from her back to her stomach area. Alfred, Sr., did not speak directly to Flanagan, the nurses, or the ambulance crew that drove Joyce to the hospital. Alfred, Sr., stated that he did not hear anything Flanagan said to his wife during the examination because they were speaking in hushed tones. Flanagan gave Joyce a shot of Demarol and told her that it was important for her to call her regular doctor, Dr. Davis, in the morning. Joyce was then discharged from the emergency room and taken home by ambulance. Later that morning Alfred, Jr., while at the emergency room as part of his job , approached Flanagan about his mother's visit. Alfred, Jr., stated that Flanagan told him that his mother had been in a lot of pain and that he had given her some Demarol to get her through the night.
Alfred, Sr., sat at Joyce's bedside from the time they returned from the hospital until approximately 10:30 p.m. They talked, but Alfred, Sr., does not remember the contents of their conversation. Alfred, Jr., did not visit his mother that day because he was working. Alfred, Sr., tried to call Dr. Davis in the morning but was told that Davis would not be in that day. Alfred, Jr., spoke with Davis on the afternoon of June 12 and informed him that his mother had been to the emergency room. Davis told him that his treatment at that time consisted of ongoing tests. At approximately 10:30 p.m. Joyce told her husband that she felt relaxed enough to go to sleep. Alfred, Sr., went into another room and fell asleep until approximately midnight. When he then checked on his wife she was dead.
Father and son filed a notice of a claim and a complaint in their personal capacities and also as co-personal representatives of the estate of Joyce Nelson. The defendants moved for a partial summary judgment as to their NIED claims. The court, relying on Cameron v. Pepin, 610 A.2d 279 (Me. 1992), ruled that Alfred, Jr.'s, claim was barred because he was not present at the hospital with his mother. The court concluded that Alfre
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