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FORBES v. OSTEOPATHIC HOSP. OF MAINE12/19/1988
The plaintiffs Thomas Forbes and his wife Melanie Forbes appeal from a summary judgment entered in favor of the defendant, Osteopathic Hospital of Maine, Inc., by the Superior Court (Cumberland County, Brodrick, J.). The plaintiffs argue that because the record discloses a genuine issue of a material fact the trial court erred in granting the hospital's motion for a summary judgment. We agree and vacate the judgment.
The record reflects the following: By their original complaint against the hospital, the plaintiffs sought damages for the alleged negligent treatment of Thomas Forbes by two physicians, while acting as agents of the hospital. In its answer, the hospital denied that any agency relationship existed between the two physicians and the hospital. The plaintiffs and the two physicians entered into a settlement agreement resulting in the plaintiffs' release of the two physicians from further prosecution by the plaintiffs. The hospital moved for a summary judgment on the ground that the plaintiffs' claim against the hospital had been based solely on allegations of negligence of the two physicians alleged to have occurred while the physicians were acting as agents of the hospital, and thus the release of the two physicians barred any further action against the hospital. The parties stipulated the motion could be decided on the pleadings. The trial court stated that it "assume the allegations of the plaintiffs' complaint to be true for purposes of the motion for summary judgment" and granted the hospital's motion "unless the plaintiffs move to amend the complaint to allege independent
By their timely amended complaint, the plaintiffs sought damages from the hospital by reason of its alleged negligent diagnosis and treatment of a puncture injury to Thomas Forbes's foot. In its answer, the hospital, inter alia, denied any negligence on its part. The trial court in its pretrial order set December 1, 1987 as the general discovery deadline with the hospital having until December 31, 1987 to depose any expert designated by the plaintiffs. On December 7, 1987, the hospital moved for a summary judgment against the plaintiffs as a matter of law on the ground of plaintiffs' failure to "identify an expert medical witness on liability and causation issues," and also on the ground that a summary judgment against the plaintiffs was an appropriate sanction under M.R.Civ. 37(b)(2) for their failure to identify any such expert witnesses. Although the parties filed memoranda of law, at no time did either party file any affidavits in support of or in opposition to the motion. After a hearing, the trial court granted the hospital's motion, and the plaintiffs appeal.
The only issue raised by the plaintiffs is whether on the record before it the Superior Court erred in finding that there was no genuine issue of material fact as to whether, absent expert medical testimony, the plaintiffs could sustain their burden of proof at trial. The plaintiffs concede their failure to designate an expert medical liability witness, but contend that the Superior Court erred in granting the defendant's motion for summary judgment because the allegations in the pleadings raise a genuine issue of material fact as to whether expert medical testimony is required. We have previously noted that ordinarily a plaintiff can discharge his burden of proof for a claim of negligent medical care only by expert medical testimony establishing the appropriate standard of medical care, that the defendant departed from the standard, and that the negligent conduct proximately caused the plaintiff's injury. Humor v. Maine Coast Memorial Hosp., 483 A.2d 718, 722 (Me. 1984); Cox v. Dela Cruz, 406 A.2d 620, 622 (Me. 1979). We also recognized, howev
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