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Merriam v. Wanger
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 159
Docket:	Oxf-99-731
Argued:	June 5, 2000
Decided:	August 15, 2000




	[¶1]  William Wanger, M.D., appeals from the judgment entered in
the Superior Court (Oxford County, Kravchuk, J.) on a jury verdict in favor of
Laurel Merriam in her medical malpractice action against him.  On appeal,
Wanger claims that:  (1) there is insufficient evidence of proximate cause;
and (2) admission of certain portions of Merriam's expert testimony violated
the discovery rules and unfairly prejudiced him.  Because the record
contains no evidence of causation beyond what may be characterized as
speculation, we vacate the judgment.
	[¶2]  In 1992 and 1993, Laurel Merriam was exploring medical
procedures to restore her fertility.  On January 25, 1993, as part of this
process, Merriam underwent a procedure which Merriam acknowledged
created a risk of Pelvic Inflammatory Disease (PID).
	[¶3]   On February 23, 1993, Merriam visited the emergency room at
the Rumford Community Hospital complaining of abdominal pain.  Her pain
was so severe that she required the assistance of a friend to walk into the
emergency room.  At the emergency room, she was treated by Wanger who
took Merriam's history and examined her.  In the course of his examination,
Wanger found that Merriam had an elevated SED rate of 46, an elevated
white blood cell count of 16.6, a respiration rate of 20, and normal blood
pressure and temperature.  He also tested her for chlamydia and gonorrhea,
which are both sexually transmitted diseases.  Based on his examination,
Wanger diagnosed Merriam's condition as PID, prescribed an oral antibiotic,
and sent her home. 
	[¶4]  On March 16, 1993, Merriam was examined by another doctor
who discovered an abscess in her abdomen.  In April and May 1993,
Merriam underwent surgeries to alleviate the abscess.  Initially Merriam felt
better, but by August 1993 she was again suffering dull pains in her
abdomen.  Because of the removal of one of her ovaries and the scarring that
had occurred around the other in the earlier surgeries, Merriam underwent
a hysterectomy in May 1994, to relieve the abdominal pain she had
continued to suffer.
	[¶5]  At trial, Merriam presented the testimony of three expert
witnesses seeking to establish (i) that Wanger acted negligently on February
23; and (ii) that his negligence resulted in Merriam being required to
undergo further surgical procedures to alleviate the abdominal pain she was
suffering, including the total hysterectomy that eliminated the possibility
that she would regain her fertility.
	[¶6]  After hearing the evidence, the jury concluded that Wanger was
negligent, that his negligence was the proximate cause of Merriam's
injuries, and that Merriam had suffered $150,000 in damages as a result. 
On appeal, Wanger argues that there was insufficient evidence from which
the jury could have concluded that his negligence was a proximate cause of
the injuries Merriam suffered.  He also challenges two evidentiary rulings by
the trial court.
	[¶7]  This Court reviews a claim of insufficiency of the evidence to
support a verdict to "determine if any reasonable view of the evidence and
those inferences that are justifiably drawn from that evidence supports the
jury verdict."  Kaechele v. Kenyon Oil Co., Inc., 2000 ME 39, ¶ 17, 747 A.2d
167, 173 (quoting Bates v. Anderson, 614 A.2d 551, 552 (Me. 1992)).   "A
judgment as a matter of law is improper if 'any reasonable view of the
evidence could sustain a verdict for the opposing party.'" Id. (quoting
Currier v. Toys 'R' Us, Inc., 680 A.2d 453, 455 (Me. 1996)).
	[¶8]  "[T]o establish liability in a medical malpractice case, the
plaintiff must show that the defendant's departure from a recognized
standard of care was the proximate cause of the injury."  Phillips v. Eastern
Maine Med. Ctr., 565 A.2d 306, 307 (Me. 1989).{1}  Proximate cause is "that
cause which, in natural and continuous sequence, unbroken by an efficient
intervening cause, produces the injury, and without which the result would
not have occurred."  Webb v. Haas, 1999 ME 74, ¶ 20, 728 A.2d 1261, 1267
(quoting Searles v. Trustees of St. Joseph's College, 1997 ME 128, ¶ 8, 695
A.2d 1206, 1209)). 
Evidence is sufficient to support a finding of proximate cause
if the evidence and inferences that may reasonably be drawn
from the evidence indicate that the negligence played a
substantial part in bringing about or actually causing the
injury or damage and that the injury or damage was either a
direct result or a reasonably foreseeable consequence of the
negligence.  The mere possibility of such causation is not
enough, and when the matter remains one of pure
speculation or conjecture, or even if the probabilities are
evenly balanced, a defendant is entitled to a judgment.
See Crowe v. Shaw, 2000 ME 136, ¶ 10, --- A.2d ---, --- (internal citations
omitted).  See also Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 14,
742 A.2d 933, 940; Shaw v. Bolduc, 658 A.2d 229, 235-36 (Me. 1995); Wing
v. Morse, 300 A.2d 491, 495-96 (Me. 1973).  
	[¶9]  A consequence of negligence is reasonably foreseeable if the
negligence has created a risk which might reasonably be expected to result
in the injury or damage at issue, even if the exact nature of the injury need
not, itself, be foreseeable.  See Colvin v. A R Cable Services-ME, Inc., 1997
ME 163, ¶ 7, 697 A.2d 1289, 1290-91; Quinn v. Moore, 292 A.2d 846, 850
(Me. 1972).  However, reasonable foreseeability does not equal causation.  To
support a finding of proximate cause, there must be some evidence
indicating that a foreseeable injury did in fact result from the negligence.
	[¶10]   Proximate cause is generally a question of fact for the jury,
but the court has a duty to direct a verdict for the defendant if the jury's
deliberation rests only on speculation or conjecture.  See Cyr v. Adamar
Assocs., Ltd. Partn., 2000 ME 110, ¶ 6, 752 A.2d 603; Champagne v. Mid-
Maine Med. Ctr., 1998 ME 87, ¶ 10, 711 A.2d 842, 845.
	[¶11]  For purposes of our analysis here, Wanger's negligence is
established.  We assume also that Wanger's negligence created a reasonably
foreseeable risk of Merriam's damages.  The issue is whether there is
sufficient evidence to establish that it is more likely than not that Wanger's
negligence played a substantial part in bringing about Merriam's extended
period of pain and loss of fertility.   
	[¶12]  Each of Merriam's expert witnesses testified that she was
suffering from an abdominal infection on the night of February 23, when she
went to the emergency room.  In addition, there was testimony indicating
that Wanger could have and should have hospitalized Merriam and done
more tests and/or referred Merriam to a surgeon at the hospital for further
observation and evaluation.  Two experts testified that irreversible damage to
Merriam's reproductive system was a reasonably foreseeable risk of Wanger's
negligent diagnostic practices, but no expert testified that Merriam's
problems would certainly, or more likely than not, have been avoided had
Wanger acted properly.
	[¶13]  Addressing Wanger's failure to properly diagnose and treat
Merriam on February 23, Dr. John Irwin testified:
Clearly pelvic inflammatory disease, even the classic sense,
severely impairs the patient's ability to have children.  If it's
too far advanced and the patient is not treated, the patient
will lose tubes and ovaries.  It becomes abscessed.  It
progresses.  Even if you don't lose them, the tube itself can
be scarred from the infection and not be able to pass eggs. 
You have the ovaries on the outside, far outside.  The eggs
pass down the tube.  If the tube becomes narrow or scarred
because of the infectious process, then the egg can't get
through; and so the patient cannot have children; so, you
know, we don't want to be misled to thinking if somebody
comes in and have the diagnosis of PID that this simply
means fine, here's the antibiotic choice, let them go home.

If the patient has -- comes in with a vaginal discharge, not
too much pain, and just had a day or two of symptoms, fine,
initiate some treatment and schedule follow-up.  If the
patient comes in with peritonitis and bent over in pain and
you believe you have PID, that requires further evaluation
soon, immediately.  You can't -- if you dismiss it, then you run
the risk of a patient having permanently damaged [a] tube
and ovary.
	[¶14]  Another expert witness, Dr. William P. Carter, testified that if
an individual demonstrates peritoneal signs such as those Merriam
presented to Wanger, that indicates a serious infection which requires
hospitalization for further testing and evaluation.  He testified that if a
laparoscopy had been performed it would have disclosed appendicitis or the
abscess and surgery would have been performed.  With respect to Wanger's
decision to not hospitalize Merriam, Carter testified: 
[Y]ou've got to be very serious about treating this infection. 
You need to have this woman in the hospital.  You need to get
the appropriate physicians involved to take care of her and
you may stand some chance of, one, saving the tube or
preventing any of the complications which can occur with a
pelvic inflammatory disease and she certainly did have
complications requiring repeated drainage of an abscess. 
He's requiring a surgical procedure that ultimately removed
her uterus at some later date.
	[¶15]  However, neither expert testified that Merriam's damages
would have been avoided had Wanger acted properly, and neither was
directly asked that question.
	[¶16]  In this case, the jury was properly instructed on proximate
cause, but the record contains no evidence upon which the jury could have
found it more likely than not that Merriam's damages were proximately
caused by Wanger's negligence.  Without more, evidence of negligence and
foreseeability of a risk does not permit a jury to infer causation.
	[¶17]  Allowing a jury to infer causation on complex medical facts
without the aid of expert testimony on the subject and without some
showing that Wanger's conduct was "more likely than not" a cause of
Merriam's injury, stretches the jury's role beyond its capacity.  Standards for
demonstrating the elements of professional negligence do not differ from
profession to profession.  An attorney may not be subject to liability absent
actual evidence of causation.  See e.g., Corey, 1999 ME 196, ¶ 14, 742 A.2d
at 940.  Likewise, a medical professional may not be subject to liability
absent actual evidence of causation.  See Champagne, 1998 ME 87,
¶¶ 10­p;12, 711 A.2d at 845-46.   
	[¶18]  In the matter before us, not only is there a total absence of
evidence that it was more likely than not that Wanger's actions were a cause
of Merriam's harm, the evidence before the jury suggested several other
potential sources of harm.  Although there may be multiple causes of any one
injury, the existence of multiple possibilities makes the need for evidence of
Wanger's responsibility for causation all the more important.  	
	The entry is:
			Judgment vacated.  Remanded for entry
			of judgment for Wanger.

Attorneys for plaintiff: William D. Robitzek, Esq., (orally) Paul F. Macri, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorneys for defendant: George C. Schelling, Esq., (orally) Sandra L. Rothera, Esq. Gross, Minsky, & Mogul, P.A. P O Box 917 Bangor, ME 04402-0917
FOOTNOTES******************************** {1} . "Negligence alone on the part of an actor is not enough to impose liability. Negligence is actionable only if it proximately causes an injury to another--that is, if it 'is a substantial factor in bringing about the harm and . . . there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in harm.'" Taylor v. Hill, 464 A.2d 938, 944 n.2 (Me. 1983) (quoting Wing v. Morse, 300 A.2d 491, 495-96 (Me. 1973)).