Champagne v. Mid-Maine M.C.
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 	1998 ME 87
Docket:	Ken-97-79
Argued:	October 7, 1997
Decided:	April 30, 1998

Panel:   WATHEN, C.J., and ROBERTS,  CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.  

KAREN CHAMPAGNE
 
v.

MID-MAINE MEDICAL CENTER, et al.

LIPEZ, J.
  
	[¶1]  Karen Champagne appeals from a judgment entered in the
Superior Court (Kennebec County, Alexander, J.) granting Defendant Mid-
Maine Medical Center's and Defendant Priscilla Hutchins' motions for a
summary judgment on Champagne's notices of claim filed pursuant to 24
M.R.S.A. § 2903 (1990 & Pamph. 1997).{1}  Champagne contends that her
notices of claim stated causes of action for negligent infliction of emotional
distress ("NIED"), intentional infliction of emotional distress ("IIED"),
battery, and invasion of privacy, and that there are genuine issues of material
fact concerning these claims.   Alternatively, she argues that the court
exceeded the bounds of its discretion by granting the Defendants' motions
for a summary judgment prematurely, without allowing her a continuance to
conduct additional discovery to oppose the motions.  We affirm the
judgment.  

I.

	[¶2]  The following facts are undisputed.  On November 24, 1992, at
1:23 a.m. Karen Quinlan Champagne gave birth to a son, Makita, at Mid-
Maine Medical Center.  At about 9:00 a.m., Priscilla Hutchins, a nursing
student who was participating in a clinical rotation program at MMMC, took
Makita out of the nursery and gave him to another maternity patient.  The
patient breast-fed Makita for three to five minutes before it was discovered
that the baby was not hers.  Makita was returned to the nursery and to date
has suffered no ill effects from the experience. Champagne was not present
when her baby was breast-fed by the patient and was unaware of the situation
until about 10:00 a.m., when a nurse told her what had happened.  
	[¶3]  Pursuant to 24 M.R.S.A. § 2903 and §§ 2851-59, Champagne
filed notices of claim against MMMC and Hutchins on behalf of herself and
Makita. With the approval of the Prelitigation Screening Panel, both
Defendants filed motions for a summary judgment with the Superior Court.{2} 
Champagne opposed the Defendants' motions, contending that her notices
of claim stated causes of action for invasion of privacy, battery, intentional
infliction of emotional distress, and negligent infliction of emotional
distress{3}; and that genuine issues of material fact existed concerning these
claims. Alternatively, Champagne moved that the court grant her a
continuance to permit her to conduct additional discovery. 
	[¶4]  In September 1996 the court granted MMMC's and Hutchins'
motions for a summary judgment "as to all [of Champagne's individual]
claims stated in the notice of claim," but left intact Makita's claims.  After
Champagne's motion to report the decision to this Court pursuant to
M.R. Civ. P. 72(c) was denied, the parties filed a stipulation of dismissal with
prejudice of Makita's claims. This appeal followed.

II.  
Negligent Infliction of Emotional Distress:  Direct Victim

	[¶5]  Champagne first contends that her notices of claim stated a
cause of action for negligent infliction of emotional distress, and that the
existence of genuine issues of material fact concerning her NIED claim
precluded the entry of summary judgments.  In reviewing a summary
judgment, we examine the evidence in the light most favorable to the
nonprevailing party to determine whether the record supports the
conclusion that there is no genuine issue of material fact and that the
prevailing party is entitled to a judgment as a matter of law.  See Petillo v.
City of Portland, 657 A.2d 325, 326 (Me. 1995).  In testing the propriety of
a summary judgment, we accept as true the uncontroverted facts properly
appearing in the record.  See Gerber v. Peters, 584 A.2d 605, 607 (Me.
1990) (citing Field, McKusick & Wroth, Maine Civil Practice § 56.4 at 357
(2d ed. Supp. 1981)).  
	[¶6]  We have recognized that the victim of negligent conduct has a
legally protected interest in her psychic health, with different rules
governing recovery depending on whether she is characterized as a "direct"
or an "indirect" victim.  See Cameron v. Pepin, 610 A.2d 279, 280-81 (Me.
1992).  A plaintiff is a direct victim if she was the object of the defendant's
negligent conduct. See, e.g., Gammon v. Osteopathic Hosp. of Me., Inc., 534
A.2d 1282 (Me. 1987) (plaintiff who discovered severed human leg in bag
that he thought contained his recently deceased father's belongings was
direct victim of hospital's and funeral home's alleged negligent conduct).  In
contrast, a plaintiff is an indirect victim if the claimed negligence
underlying the NIED claim was directed not at her, but instead at someone
she loved and to whom she was close.  See Nelson v. Flanagan, 677 A.2d
545, 547 n.3 (Me. 1996); see, e.g., Culbert v. Sampson's Supermarkets, Inc.,
444 A.2d 433, 438 (Me. 1982) (mother who observed her child choking on
a foreign object in baby food manufactured by defendant was indirect victim
of defendant's negligent conduct).
	[¶7]  Relying on Gammon, 534 A.2d 1282, Champagne argues that she
was a direct victim of the Defendants' negligence in allowing Makita to
nurse from the wrong mother.  This claim is unpersuasive.  The Defendants'
negligence in allowing Makita to be nursed by the wrong mother was
directed towards Makita, not his mother.  The fact that Champagne had
recently given birth to Makita cannot transform her status to that of a direct
victim, and her reliance on Gammon as a basis for recovery is misplaced. 
See, e.g., Gendek v. Poblete, 654 A.2d 970, 974-75 (N.J. 1995) (mother
cannot be characterized as a direct victim of provider's negligent treatment
of newborn shortly after birth).  
	[¶8]  Although the gravamen of Champagne's notices of claim concerns
the Defendants' act of allowing Makita to nurse from the wrong mother, her
notice of claim against Hutchins{4} contains an allegation that Hutchins failed
to inform Champagne of the potential risks posed by the breast-feeding
incident. Thus, although Champagne cannot be characterized as a direct
victim of the Defendants' negligence in taking Makita to the wrong mother,
Champagne does cast herself as a direct victim of the discrete "failure to
inform" conduct.  Assuming without deciding that Hutchins owed a duty to
inform Champagne of the risks posed by her son's exposure to another
patient's breast milk, we nevertheless conclude that Champagne failed to
produce sufficient evidence of causation on her failure-to-inform NIED claim
to withstand summary judgment. 	
	[¶9]  Where a plaintiff will have the burden of proof on an essential
issue at trial, and it is clear that the defendant would be entitled to a
judgment as a matter of law at trial if the plaintiff presented nothing more
than was before the court at the hearing on the motion for a summary
judgment, the court may properly grant a defendant's motion for a summary
judgment.  See Town of Lisbon v. Thayer Corp. 675 A.2d 514, 517 (Me.
1996); Gerber, 584 A.2d at 607; see also M.R. Civ. P. 50(a).  To avoid a
judgment as a matter of law for a defendant, a plaintiff must establish a
prima facie case for each element of her cause of action.  See Fleming v.
Gardner, 658 A.2d 1074, 1076 (Me. 1995).  A judgment as a matter of law in
a defendant's favor is proper when any jury verdict for the plaintiff would be
based on conjecture or speculation.  See id.; Barnes v. Zappia, 658 A.2d
1086, 1089 (Me. 1995). 
	[¶10]  All actions sounding in negligence, including NIED, require a
plaintiff to establish by a preponderance of the evidence that a defendant's
negligent conduct was a proximate cause of her injuries.  See Prosser &
Keeton, Torts §§ 30, 38 (5th ed. 1984).  Thus, to warrant submission of her
case to a factfinder and to avoid judgment as a matter of law in the
defendant's favor, a plaintiff seeking to recover for a defendant's negligence
must first establish a prima facie case for each element of the cause of
action, including causation.  "The mere possibility of such causation is not
enough; and when the matter remains one of pure speculation or
conjecture, or the probabilities are at best evenly balanced, it becomes the
duty of the court to direct a verdict for the defendant."  Restatement
(Second) of Torts § 433B cmt. a, at 442 (1965); see also Unobskey v.
Continental Ins. Co., 147 Me. 249, 257-58, 86 A.2d 160, 164 (1952)
("Conjecture, choice of possibilities, or quantitative probability is not proof. 
There must be something more to lead a reasoning mind to one conclusion
rather than to the other.") (quotations omitted).  
	[¶11]  In addition to alleging throughout her notices of claim that
MMMC and Hutchins were negligent in allowing Makita to be breast-fed by
the wrong mother, Champagne alleges in paragraph six that Hutchins was
negligent "in informing  and educating [Champagne] about the risks and
consequences of the incident."  By deposition and affidavit, Champagne
alleged, inter alia, that she suffered periodic crying spells; that she did not
eat or sleep regularly for several months; and that she felt humiliated, angry,
dirty, extremely violated, confused, very upset, and very worried after the
incident.{5}  The evidence before the court at the time of the summary
judgment motions, however, did not provide any basis for a factfinder to
determine whether these feelings were attributable to Hutchins' act of
allowing Makita to breast-feed from the wrong mother, for which
Champagne has no cause of action for direct NIED, or whether these
feelings were attributable to Hutchins' failure to inform her of the risks
posed by the breast-feeding incident, for which we assume without deciding
that there is a possibility of  a direct NIED claim.{6}
	[¶12]  If a plaintiff makes an undifferentiated claim of injuries based
on two discrete acts, and one of the acts cannot provide a basis for recovery
as a matter of law, a factfinder cannot speculate about the causal link
between the surviving act and the injuries alleged.  Cf. Unobskey, 147 Me. at
257-58, 86 A.2d at 164.  In the absence of evidence attributing Champagne's
injuries to actionable conduct rather than nonactionable conduct, a trier of
fact would be required to resort to mere guesswork to return a verdict in
her favor.  In these circumstances, we conclude that Champagne failed to
produce sufficient evidence to create a genuine issue of material fact on the
causal relationship between Hutchins' alleged failure to inform her of the
risks created by the breast-feeding incident and the emotional distress she
claims.

Negligent Infliction of Emotional Distress:  Indirect Victim

	[¶13]  Champagne next contends that she was an indirect victim of
the Defendants' alleged negligence, and that her notices of claim therefore
stated viable causes of action for NIED.  In order for a bystander to recover
for emotional distress proximately caused by a defendant's negligence
toward another person, the bystander must demonstrate that she was
present at the scene of the accident; that she suffered serious mental
distress as a result of contemporaneously perceiving the accident; and that
she was closely related to the victim.  See Nelson, 677 A.2d at 548;
Cameron, 610 A.2d at 283-84 (rejecting a pure foreseeability test and
explaining that circumscribed duty of care in the context of claims made by
bystanders for psychic injury reflects policy considerations). 
	[¶14]  It is undisputed that Champagne did not witness Makita being
nursed by the wrong mother and that she did not learn about the incident
until about one hour afterward.  In these circumstances, Champagne has not
established a cause of action for NIED as a bystander to the Defendants'
alleged negligence.  Compare, e.g., Cameron, 610 A.2d at 284-85 (holding
that parents who were not at scene of son's car accident but who later
witnessed his pain and suffering at the hospital cannot recover damages for
NIED from negligent tortfeasor) with Culbert, 444 A.2d at 438 (vacating
dismissal of NIED claim where mother observed her child choking on a
foreign object in baby food manufactured by defendant).     

Intentional Infliction of Emotional Distress

	[¶15]  Champagne contends that the court erred in granting a
summary judgment to the Defendants on her claim for intentional infliction
of emotional distress.  To withstand summary judgment on an IIED claim, a
plaintiff must present facts tending to show that the defendant intentionally
or recklessly inflicted severe emotional distress or was certain or
substantially certain that such distress would result from its conduct; that
"the conduct was so extreme and outrageous as to exceed all possible
bounds of decency and must be regarded as atrocious, utterly intolerable in a
civilized community"; that the actions of the defendant caused the plaintiff's
emotional distress; and that the emotional distress suffered by the plaintiff
was "so severe that no reasonable [person] could be expected to endure it." 
Loe v. Town of Thomaston, 600 A.2d 1090, 1093 (Me. 1991) (quoting Finn
v. Lipman, 526 A.2d 1380, 1382 (Me. 1987)); see Vicnire v. Ford Motor
Credit Co., 401 A.2d 148, 154 (Me. 1979). 
	[¶16]  In the context of an IIED claim, "it is for the court to
determine in the first instance whether the defendant's conduct may
reasonably be regarded as so extreme and outrageous to permit recovery, or
whether it is necessarily so."  Colford v. Chubb Life Ins. Co. of Am., 687 A.2d
609, 616 (Me. 1996) (quoting Rubin v. Matthews Int'l Corp., 503 A.2d 694,
699 (Me. 1986)).  Thus, while the jury must determine whether the
elements of the tort were in fact satisfied, the court must first determine
whether, as a matter of law, the facts alleged are sufficient to satisfy the
elements.  See id.; see also Gray v. State, 624 A.2d 479, 484 (Me. 1993). 	It
is undisputed that Hutchins brought Makita to a maternity patient who was
not his mother; that Makita was permitted to nurse from the maternity
patient for three to five minutes; that Makita was returned promptly and
unharmed to the nursery when the error was discovered; and that
Champagne was notified of the incident about one hour after it occurred.
Such conduct, while troubling and unfortunate, cannot be characterized as
"so extreme and outrageous as to exceed all possible bounds of decency in a
civilized community." Loe, 600 A.2d at 1093.  The court did not err in
determining as a matter of law that Champagne had failed to state a cause of
action for intentional infliction of emotional distress.  

Privacy and Battery Claims

	[¶17]  Champagne next contends that her notices of claim stated
causes of action for invasion of privacy and for battery, and that the existence
of genuine issues of material fact with respect to these claims precluded the
entry of a summary judgment.  Pursuant to 24 M.R.S.A. §§ 2903 and 2853, a
notice of claim must set forth in writing and under oath "the professional
negligence alleged and the nature and circumstances of the injuries and
damages alleged . . . ."  We have construed this phrase to require only
ordinary notice-pleading.  See, e.g., Dutil v. Burns, 687 A.2d 639, 642 (Me.
1997); Jagoe v. Blocksom, 440 A.2d 1022, 1025 (Me. 1982).  Notice-
pleading simply requires that a defendant be provided with fair notice of the
claim against him, and is "sufficiently performed by a rather generalized
statement."  Richards v. Soucy, 610 A.2d 268, 270 (Me. 1992) (quoting 1
Field, McKusick & Wroth, Maine Civil Practice § 8.2 at 192-93 (2d ed. 1970)).  
	[¶18]  Although Champagne's notices of claim satisfied ordinary
notice-pleading requirements for her emotional distress claims,{7} they failed
to notify the Defendants adequately that Champagne intended to bring
claims for invasion of privacy and battery.  Neither notice of claim averred
the essential elements for invasion of privacy or for battery, nor did they
supply adequate factual information to disclose the basis of an invasion of
privacy or battery claim. See Loe, 600 A.2d at 1093 (claim for intrusion upon
physical or mental solitude requires "a physical intrusion upon premises
occupied privately by a plaintiff for purposes of seclusion") (citing Nelson v.
Times, 373 A.2d 1221, 1223 (Me. 1977)); Zillman, Simmons, & Gregory,
Maine Tort Law § 1.01 (1997) (central element of the tort of battery is a
physical touching).  Hence, the notices of claim did not state claims for
invasion of privacy or battery.

III.

	[¶19]  Finally, Champagne argues that the court exceeded the bounds
of its discretion in denying her request for a continuance to permit her to
conduct additional discovery in opposition to the Defendants' motions for a
summary judgment.  A party seeking a continuance has the burden of
showing sufficient grounds for granting the motion, and the ruling of the
presiding justice is reviewable only for abuse of discretion.  See Farrell v.
Theriault, 464 A.2d 188, 191 (Me. 1983).  There is nothing in the record to
suggest that the court "was given any substantial reason whereby justice
would be advanced by the grant of the continuance," id. at 192, and the
court did not exceed the bounds of its discretion in denying Champagne's
request for a continuance.      
	The entry is:
			Judgment affirmed. 
                                                        
Attorney for plaintiffs:
Louis J. Shiro, Esq., (orally)
Shiro & Shiro
P O Box 706
Waterville, ME 04903-0706

Attorneys for defendants:

Penny Littell, Esq., (orally)
Daniel Rappaport, Esq.
Preti, Flaherty, Beliveau & Pachios, LLC
P O Box 11410
Portland, ME 04104-7410
(for Mid-Maine Med. Ctr.)

Wendell Large, Esq.
Anne Cressey, Esq.
Richardson, Whitman, Large & Badger, P.C.
P O Box 9545
Portland, ME 04112-9545
(for Priscilla Hutchins)

FOOTNOTES******************************** {1} 24 M.R.S.A. § 2903, which is part of the Maine Health Security Act, provides in pertinent part: 1. Commencement of action. No action for professional negligence may be commenced until the plaintiff has: A. Served and filed written notice of claim in accordance with section 2853; B. Complied with the provisions of subchapter IV-A; and C. Determined that the time periods provided in section 2859 have expired. Subchapter IV-A, which encompasses sections 2851-59 of title 24, establishes mandatory prelitigation screening and mediation panels for all claims of professional negligence against healthcare providers and practitioners. {2} Although the plaintiff in a medical malpractice action must present her claim to a prelitigation screening panel before pursuing the claim in court, the parties may litigate certain preliminary legal affirmative defenses or issues in Superior Court prior to submission of the case to the panel. See 24 M.R.S.A. § 2853(5); Welch v. McCarthy, 677 A.2d 1066, 1068 (Me. 1996). {3} On appeal Champagne argues that she has stated a cause of action for "professional negligence" in addition to her negligent infliction of emotional distress claim. NIED, however, is simply a type of professional negligence claim. In the absence of any allegation of physical injury resulting from the Defendants' conduct, Champagne's cause of action for professional negligence is necessarily limited to NIED. {4} Champagne's notices of claim allege that Hutchins was negligent in failing to inform her of the risks and consequences of the breast-feeding incident, but do not make the same allegation against MMMC. We express no opinion as to whether MMMC could be held vicariously liable under the doctrine of respondeat superior for Hutchins' alleged negligence. {5} We also assume without deciding that Champagne's allegations of distress are "serious" as a matter of law. See Gayer v. Bath Iron Works Corp., 687 A.2d 617, 622 (Me. 1996) (to prevail on a claim of NIED, plaintiff must prove by a preponderance of the evidence that she suffered serious emotional distress that was a reasonably foreseeable result of the defendant's negligence; serious emotional distress exists "where a reasonable person normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the event"). {6} We note that Champagne's notice of claim alleged that she suffered severe emotional distress "as a result of the aforementioned act." This reference to a single "aforementioned act," combined with the incidental nature of the failure-to-inform claim (reflected by its complete omission from the notice of claim against MMMC), suggest that it was only Hutchins' conduct with respect to the breast-feeding incident itself that caused Champagne's severe emotional distress. Moreover, the record before the court at the time of the summary judgment hearing evinces no logical or temporal link between Champagne's symptoms of emotional distress and Hutchins' alleged failure to inform her of the potential risks. For example, when asked during the deposition how she felt when she was told that Makita had been breast-fed by the wrong mother, Champagne stated that she felt "angry," "very upset," "extremely violated," "shock," "disbelief," and "confusion." Champagne offered no evidence to link these emotions to Hutchins' failure to inform her of the consequences of the breast-feeding incident, rather than to Champagne's learning of the incident itself. {7} The notice of claim filed against MMMC alleged, inter alia, that MMMC was "negligent in failing to follow proper and sufficient procedures in the supervision and training of Priscilla Hutchins"; that it "did not follow appropriate standards of medical, hospital or nursing care in allowing Makita Champagne to be taken to [the wrong mother]"; and that it had "intentionally, negligently and recklessly inflicted severe emotional distress upon [Champagne]." Similarly, the notice of claim filed against Hutchins alleged, inter alia, that Hutchins was "negligent in that she did not follow proper and sufficient procedures in her education and training and did not follow appropriate standards of medical, hospital or nursing care in allowing Makita Champagne to be taken to [the wrong mother] and in informing [Champagne] about the risks and consequences of the incident"; and that she had "intentionally, negligently, and recklessly inflicted severe emotional distress upon [Champagne]."