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BOLTON v. CAINE12/18/1990
Plaintiff Judith Bolton, personal representative of the estate of Margery MacDonald, appeals the summary judgments entered in favor of defendants Brian J. Caine, M.D. and Frank Cruickshank, M.D. in the Superior Court (Hancock County, Browne, J.). Plaintiff contends that her complaint contains an actionable claim for negligent infliction of emotional distress even if summary judgment was appropriately granted on her claims under the wrongful death statute, 18-A M.R.S.A. § 2-804 (1981 & Supp. 1984). We agree and vacate the judgments on Counts IV and V of plaintiff's complaint.
The following uncontroverted facts were developed in connection with the motions for summary judgment. On October 7, 1983, defendant Brian J. Caine, M.D. treated plaintiff's decedent Margery MacDonald for an injured hip and wrist in the emergency room of the Mount Desert Island Hospital in Bar Harbor. As part of the treatment, defendant Caine ordered x-rays which were reviewed and interpreted by defendant Frank Cruickshank, M.D., a radiologist at the hospital. In his report of the x-rays, defendant Cruickshank noted the presence of "an ill-defined density in the upper left lobe" of the chest and recommended further investigation and careful monitoring. Neither defendant communicated the presence of this density to Mrs. MacDonald.
On July 19, 1984, a chest x-ray taken in her home state of California revealed that Mrs. MacDonald had cancer of the left lung. Her California physician, Robert Spencer, M.D., sent for the x-rays taken in Bar Harbor and, after studying them, informed her that the cancerous lesion had been visible on those films taken nine months before he made his diagnosis. According to Dr. Spencer's affidavit, " er distress at not having had the information in a timely manner and the doubt it raised in her mind as to whether or not treatment opportunities had been missed were very real." Mrs. MacDonald died of cancer on June 17, 1985. Pathology reports, available only after her death, indicated that her cancer was in such an advanced state at the time of the Bar Harbor x-rays that earlier diagnosis and treatment would have been to no avail.
Initially believing that defendants' negligence had caused Mrs. MacDonald's death, plaintiff filed a wrongful death action, pursuant to 18-A M.R.S.A. § 2-804. When the autopsy report later revealed that Mrs. MacDonald's death was not, in fact, caused by defendants' inaction, plaintiff conceded the invalidity of her wrongful death claim, but asserted that Counts IV and V included a claim for negligent infliction of emotional distress. Those counts seek "damages recoverable at common law for [Mrs. MacDonald's] conscious suffering." In granting defendants' motions for summary judgment, the Superior Court accepted their argument that plaintiff's claim is governed solely by the wrongful death statute with 18-A M.R.S.A. § 2-804(c) providing the exclusive remedy for any psychological injuries suffered by the decedent prior to her death.
All parties agree that no causal connection exists between defendants' alleged negligence and the decedent's death. Because the wrongful death statute only applies when a person's death is "caused by a wrongful act, neglect or default" of another person, it has no application to the cause of action plaintiff now asserts. 18-A M.R.S.A. § 2-804(a). The Superior Court correctly granted summary judgment on the
Defendants now argue that plaintiff's claim for negligent infliction of emotional distress must fail due to the terminology used in the complaint. The phrase "conscious suffering" is generally understood as referring to the physical suffering of a conscious person. Under the wrongful death statute, recov
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