STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-I0-337 g f( .-" ( Ll, \ ) . I !;'G I i /
DOROTHY STANLEY, by her parent and legal guardian Laurie Stanley,
Plaintiff, ~. v. ~)i~~J' *~,c.,O ORDER ON MOTION FOR SPURWfNK SERVICES, I~q\(}(>~,~'\}\\ DISMISSAL :!..t{::- ~?:>' .~ to /".. ~{} .'\ \.) V rfj;,~~~~~.t·· (,. . . ,~,"13~/ '(./\ r'" ""'....., .~<. \) a'{,,~ ~.~."
Plaintiff Dorothy Stanley, by her parent ,md legal guardian Lauric Stanley,
brought this multi-count complaint alleging that the plaintiff was raped by tvvo
men due to the negligence of five of Spurwink Serv~ces' employees. Defendant
Spurwink Services, Inc., argues that Ms. Stanley's claims are subject to the
provisions of the Maine Health Security Act, and moves to dismiss this action
because the plaintiff has not filed a mandatory notice of claim and because her
claims arc time barred.
BACKGROUND
Ms. Stanley's complaint alleges the following. Plaintiff Dorothy Stanley is
a twenty-two year old woman with developmental disabilities. (Compl. ~r 6.) She
has been diagnosed with disruptive behavior disorder, bipolar disorder,
depressive disorder, and mental retardation. (Compl. ~[ 6.) In 2002, when Ms.
Stanley was age fourteen, her emotional and psychological development was
commensurate wi th that of a child between the ages of four and six. (Compl. (rr 7.)
Dr. Charles B. Whitehead evaluated Ms. St,lllley and wrote: "Although she is
1 emotionally extremely immature, her physical development is consistent with
her chronological age, and she is seeking to live a lifestyle (adolescent) that she is
entirely incapable of reasonably negotiating." (CompI. <[[ 8.)
Ms. Stanley was living in a therapeutic group home in Biddeford in the
years of 2003 and 2004. (Compl. err 9.) Starting in the 2003-2004 school year, the
Biddeford School Department placed Ms. Stanley at the Cummings School,
operated by Spurwink Services,' for dLly treabllent. 2 (Compl. ~19; M. Dismiss Ex.
Cat 1.) Before she began attending the school, Spurwink WLIS made aware of Ms.
Stanley's "risk of elopement in the community" and that sexual abuse would
likely result if she did escape into the community without supervision. (CompI.
9f 10.)
On January 26, 2004, Ms. Stanley's "Pupil Evaluation Team" (PET) met to
discuss and develop an Individual Service Plan for her while at the school.
(CompI. 9f~! 11, 13.) At this meeting, the PET discussed the risks involved wi th
transporting Ms. Stanley by bus from her group home to the Cummings School.
(Comp!. 9111.) The Individual Service Plan describes the appropriate level of
supervision for Ms. StLlnley as:
Eyesight supervision, within car shot due to inability to maintLlin safety. Due to history of trauma and sexualized behavior, [Ms. Stanley] is not to be left alone with male staff and it is recommended in any situation to have two staff availClble due to I Ms. StClnley's] quick escCllCltion to aggressive behaviors when upset.
1 The parties refer to the "Cummings School" Clnd the "Spurwink School" interchangeably. 2 The complaint quotes extensively from what it labels as the Jellluary 26,2004 Spurwink School Individual Service P1Cln. The defendClnt submitted a copy of this plLln for the court's considerCltion wi th its motion to dismiss. The court mClY consider the plm) without converting the motion into one for summary judgment because the cornplaint refers to this document Clnd there is no question CIS to its authenticity. Moody ZJ. Stnle Lirlllor ti Lot/ery COl/llll'Il, 2004 ME 20, 9f(]! 9-11, 843 A.2d 43, 47-48. 2 (CampI.
discuss Ms. Stanley's service plan. (CompJ. 9114.) At that meeting, the director of
Ms. Stanley's group home wrote the following:
[Ms. Stanley] has had several incidents of exiting off the school bus and eloping in to the community. This has put her at risk. The school department has placed two aides on the bus, however if [Ms. Stanley] gets off the bus, the aides are not permitted to leave the bus. The Team does not feel that the bus is a safe situation for [Ms. Stanley] at this tirne and feel that [Ms. Stanleyl needs to have a safer situation. At this time, [Ms. Stanley] is not happy about going to school with staff, however her Team feels thLlt her unsafe behavior must be LI priority.
(Compi. err 14.) Prior to Novernber 2004, on several occLlsions Ms. Stanley did
leave or Llttempt to leave the Cummings School's grounds and had to be pursued
or restrained by Spurwink staff. (Compi. err 15.)
On November 29,2004, Ms. Stanley rode the bus from her group home to
the Cunll11ings School per her uSl1L11 routine. (CampI. 9[16.) She WLIS sixteen years
old at this time. (Com pI. 91 16.) At approximately R:OO Cl.m., she exited the bus at
the Cummings School where she was met by Robert Cooke and Aaron Sawyer,
two educationCll technicians employed by Spurwink. (Comp1. 9117.) Mr. Cooke
and Mr. Sawyer were to rneet the bus when it arrived and ensure thClt Ms.
StClnley rernained on school grounds under close supervision. (Comp1. 9f lR.)
According to Spurwink's Incident Report, on exiting the bus Ms. StClnley
informed Mr. Cooke thClt she WClS "not going to schooL" (Compl. 9119.) She then
left the school's grounds on foot, trLlveling in the direction of Washington
Avenue. (CampI. err 19.) Neither Mr. Cooke nor Mr. SClwyer follov\'ed Ms. Ste1nley
off the property. (Comp1. 9120.) InsteCld, Mr. Cooke borrowedMr. SClwyer's cell
phone to Celli Wayne Holden. (CampI.
Spurwink as a teacher at the Cummings School, and is listed ClS one of the
3 individuals who Clttended the JanuClry 26,2004 meeting to discuss Ms. StClnley's
fndivlduCll Service PlCln. (Compl. 9I 20; M. Dismiss Ex. C at 1.)
Ms. StClnley could be seen crossing OceCln Avenue in the direction of
Washington Avenue by the time Mr. Holden Clrrived outside the school. (Compl.
9I 21.) Mr. Holden, like Mr. Cooke Clnd Mr. Sawyer, declined to folIow Ms. StClnley off the grounds. (Compl. (Il 22.) Instead, he instructed Mr. Sawyer to cClll
Robin T-ferrick <1ssociate director of the Cummings School, and Piper Carey, a
generalist Clt the school. (CompJ. 91 22.) }'.1s. Herrick and Ms. Carey were both
employed by Spurwink, and Ms. Herrick had Clttended the JelllUClrY 26,2004
meeting with Mr. Holden. (Compl. (II 22; M. Disrniss Ex. C Clt 1.) While the CCllls
were being mClde, Ms. StClnley could be seen entering the CigClrette Shopper, a
retail operCltion on the far side of Washington Avenue. (Compl. (II 23.)
By the time Ms. Herrick joined the men outside the school, Ms. StClnley
WclS no longer visible. (Compl. (j[ 24.) Ms. Herrick and Mr. Holden left the school
in a car to search for Ms. Stanley, but were unable to find her Clnd were instructed
to return to the school Clfter Cl few minutes. (CompJ. (119125-26.) Ms. Carey called
the police, Clnd Ms. StClnley's mother WclS notified at approximCltely R:15 Cl.111.
(Compl. (n 27.) Ms. StClnley reClppeared Clt her group home in Biddeford the next
dCly, November 30, 2004. (COlT1pl. 91 2R.)
On her return, Ms. StClnley infornlCd the group home stClff that she hCld
been sexually assClulted, and later reported two sessions of orClI and vClgini11
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-I0-337 g f( .-" ( Ll, \ ) . I !;'G I i /
DOROTHY STANLEY, by her parent and legal guardian Laurie Stanley,
Plaintiff, ~. v. ~)i~~J' *~,c.,O ORDER ON MOTION FOR SPURWfNK SERVICES, I~q\(}(>~,~'\}\\ DISMISSAL :!..t{::- ~?:>' .~ to /".. ~{} .'\ \.) V rfj;,~~~~~.t·· (,. . . ,~,"13~/ '(./\ r'" ""'....., .~<. \) a'{,,~ ~.~."
Plaintiff Dorothy Stanley, by her parent ,md legal guardian Lauric Stanley,
brought this multi-count complaint alleging that the plaintiff was raped by tvvo
men due to the negligence of five of Spurwink Serv~ces' employees. Defendant
Spurwink Services, Inc., argues that Ms. Stanley's claims are subject to the
provisions of the Maine Health Security Act, and moves to dismiss this action
because the plaintiff has not filed a mandatory notice of claim and because her
claims arc time barred.
BACKGROUND
Ms. Stanley's complaint alleges the following. Plaintiff Dorothy Stanley is
a twenty-two year old woman with developmental disabilities. (Compl. ~r 6.) She
has been diagnosed with disruptive behavior disorder, bipolar disorder,
depressive disorder, and mental retardation. (Compl. ~[ 6.) In 2002, when Ms.
Stanley was age fourteen, her emotional and psychological development was
commensurate wi th that of a child between the ages of four and six. (Compl. (rr 7.)
Dr. Charles B. Whitehead evaluated Ms. St,lllley and wrote: "Although she is
1 emotionally extremely immature, her physical development is consistent with
her chronological age, and she is seeking to live a lifestyle (adolescent) that she is
entirely incapable of reasonably negotiating." (CompI. <[[ 8.)
Ms. Stanley was living in a therapeutic group home in Biddeford in the
years of 2003 and 2004. (Compl. err 9.) Starting in the 2003-2004 school year, the
Biddeford School Department placed Ms. Stanley at the Cummings School,
operated by Spurwink Services,' for dLly treabllent. 2 (Compl. ~19; M. Dismiss Ex.
Cat 1.) Before she began attending the school, Spurwink WLIS made aware of Ms.
Stanley's "risk of elopement in the community" and that sexual abuse would
likely result if she did escape into the community without supervision. (CompI.
9f 10.)
On January 26, 2004, Ms. Stanley's "Pupil Evaluation Team" (PET) met to
discuss and develop an Individual Service Plan for her while at the school.
(CompI. 9f~! 11, 13.) At this meeting, the PET discussed the risks involved wi th
transporting Ms. Stanley by bus from her group home to the Cummings School.
(Comp!. 9111.) The Individual Service Plan describes the appropriate level of
supervision for Ms. StLlnley as:
Eyesight supervision, within car shot due to inability to maintLlin safety. Due to history of trauma and sexualized behavior, [Ms. Stanley] is not to be left alone with male staff and it is recommended in any situation to have two staff availClble due to I Ms. StClnley's] quick escCllCltion to aggressive behaviors when upset.
1 The parties refer to the "Cummings School" Clnd the "Spurwink School" interchangeably. 2 The complaint quotes extensively from what it labels as the Jellluary 26,2004 Spurwink School Individual Service P1Cln. The defendClnt submitted a copy of this plLln for the court's considerCltion wi th its motion to dismiss. The court mClY consider the plm) without converting the motion into one for summary judgment because the cornplaint refers to this document Clnd there is no question CIS to its authenticity. Moody ZJ. Stnle Lirlllor ti Lot/ery COl/llll'Il, 2004 ME 20, 9f(]! 9-11, 843 A.2d 43, 47-48. 2 (CampI.
discuss Ms. Stanley's service plan. (CompJ. 9114.) At that meeting, the director of
Ms. Stanley's group home wrote the following:
[Ms. Stanley] has had several incidents of exiting off the school bus and eloping in to the community. This has put her at risk. The school department has placed two aides on the bus, however if [Ms. Stanley] gets off the bus, the aides are not permitted to leave the bus. The Team does not feel that the bus is a safe situation for [Ms. Stanley] at this tirne and feel that [Ms. Stanleyl needs to have a safer situation. At this time, [Ms. Stanley] is not happy about going to school with staff, however her Team feels thLlt her unsafe behavior must be LI priority.
(Compi. err 14.) Prior to Novernber 2004, on several occLlsions Ms. Stanley did
leave or Llttempt to leave the Cummings School's grounds and had to be pursued
or restrained by Spurwink staff. (Compi. err 15.)
On November 29,2004, Ms. Stanley rode the bus from her group home to
the Cunll11ings School per her uSl1L11 routine. (CampI. 9[16.) She WLIS sixteen years
old at this time. (Com pI. 91 16.) At approximately R:OO Cl.m., she exited the bus at
the Cummings School where she was met by Robert Cooke and Aaron Sawyer,
two educationCll technicians employed by Spurwink. (Comp1. 9117.) Mr. Cooke
and Mr. Sawyer were to rneet the bus when it arrived and ensure thClt Ms.
StClnley rernained on school grounds under close supervision. (Comp1. 9f lR.)
According to Spurwink's Incident Report, on exiting the bus Ms. StClnley
informed Mr. Cooke thClt she WClS "not going to schooL" (Compl. 9119.) She then
left the school's grounds on foot, trLlveling in the direction of Washington
Avenue. (CampI. err 19.) Neither Mr. Cooke nor Mr. SClwyer follov\'ed Ms. Ste1nley
off the property. (Comp1. 9120.) InsteCld, Mr. Cooke borrowedMr. SClwyer's cell
phone to Celli Wayne Holden. (CampI.
Spurwink as a teacher at the Cummings School, and is listed ClS one of the
3 individuals who Clttended the JanuClry 26,2004 meeting to discuss Ms. StClnley's
fndivlduCll Service PlCln. (Compl. 9I 20; M. Dismiss Ex. C at 1.)
Ms. StClnley could be seen crossing OceCln Avenue in the direction of
Washington Avenue by the time Mr. Holden Clrrived outside the school. (Compl.
9I 21.) Mr. Holden, like Mr. Cooke Clnd Mr. Sawyer, declined to folIow Ms. StClnley off the grounds. (Compl. (Il 22.) Instead, he instructed Mr. Sawyer to cClll
Robin T-ferrick <1ssociate director of the Cummings School, and Piper Carey, a
generalist Clt the school. (CompJ. 91 22.) }'.1s. Herrick and Ms. Carey were both
employed by Spurwink, and Ms. Herrick had Clttended the JelllUClrY 26,2004
meeting with Mr. Holden. (Compl. (II 22; M. Disrniss Ex. C Clt 1.) While the CCllls
were being mClde, Ms. StClnley could be seen entering the CigClrette Shopper, a
retail operCltion on the far side of Washington Avenue. (Compl. (II 23.)
By the time Ms. Herrick joined the men outside the school, Ms. StClnley
WclS no longer visible. (Compl. (j[ 24.) Ms. Herrick and Mr. Holden left the school
in a car to search for Ms. Stanley, but were unable to find her Clnd were instructed
to return to the school Clfter Cl few minutes. (CompJ. (119125-26.) Ms. Carey called
the police, Clnd Ms. StClnley's mother WclS notified at approximCltely R:15 Cl.111.
(Compl. (n 27.) Ms. StClnley reClppeared Clt her group home in Biddeford the next
dCly, November 30, 2004. (COlT1pl. 91 2R.)
On her return, Ms. StClnley infornlCd the group home stClff that she hCld
been sexually assClulted, and later reported two sessions of orClI and vClgini11
penetration by two different men, with a shower between the two events.
(Compl. 919129-30.) An eXClmination at Maine MedicCl] Center confirmed that .she
had been i1.ssauHcd, and reveClled thClt her left nipple hCld been torn. (Compl.
91131-32.) Ms. Stcl1l[ey h
4 this incident. (Compl. 9f(JI35-36.) On July 28, 2010, Ms. Stanley filed a five-count
c01l1plaint agllinst Spurwink Services to recover for damllges llrising out of the
November 29, 2004 incident.
DISCUSSION
"A motion to dismiss tests the legal sufficiency of the complaint." Heher v.
Lllccrne-ill-Mn;lIc VilLnge Corp., 2000 ME 137, 9f 7,755 A.2d 1064, 1066 (quoting
McAfec v. Cole, tS37 A.2d 463,465 (Me. 1994)). The court examines "the complaint
in the light most bvorable to the plainti ff to determine whether it sets forth
elements of a cause of action or llileges facts that would entitle the plaintiff to
relief pursuant to some legal theory." rd. (quoting McAfec, 637 A.2d at 465). "For
purposes of a 12(b)(0) motion, the 111aterial allegations of the complaint must be
taken as admitted." McAfcc, tS37 A.2d at 465. "Dis1l1issal is warranted when it
appears beyond a doubt that the plaintiff is entitled to no relief under any set of
facts that [s]he might prove in support of [her1 claim." {o!lnIl5011 v. OllllllillgtOll,
2001 ME 109, 9f 5, 785 A.2d 1244, I 245-4tS.
Spurwink Services moves to dislTliss Ms. StClnley's claims as being time
bClrred by the statute of limitations contClined in the MCline r--IeCllth Security Act
(MJ-TSA). The MHSA requires aJ1 Clctions by cl minor for professional negligence
to "be commenced within 0 years after the cause of action ,1CCrLteS or within 3
ye,1rs Clfter the minor reaches the age of mi1jority, whichever first occurs." 24
M.R.S. ~ 2902 (2004). Ms. Stanley's Individual Service Plan indicates that she was c "
born on April II, 1988, meaning thClt the she turned eighteen on Apri I II, 2006.
(M. Dismiss Ex. c:. at 1.) The stCltute of limitations would have run on any cl'lims
subject to the MHSA on April 11, 2009, more than a year before this action was
initiated.
s The MHSA's I/[s]tatute of limitations for health care providers and health
care practitioners" applies to "[a 1cti ems for professionCl] negligence .... " 24
M.R.S. § 2902. The IClw defines an "[a1ction for professional negligence" to mean
"any action for damages for injury ... against any health C<1re provider, its agents
or employees ... whether b<1sed upon tort or breach of contrClct or otherwise,
<1rising out of the provision or fClilure to provide health care services." 24 M.R.S.
§ 2502(6) (2004). The Law Court h,lS described this definition as "very bro
worded and all-encompassing," reflecting "(1 1cgislCltive intent that the IvIHSA
'occupy the field with regard to Clctions against health care providers.'" Saunders
v. Tisher, 2006 ME 94, ~I~r 9,13,902 A.2d R30, R33 (quoting Musk v. Nelson, 647
A.2d '1198, 1201 (Me. 1994)).
A "[h ]e<1lth care provider" is "<1ny hospit<1l, clinic, nursing home, or other
facility in which skilled nursing C<1re or medicClI services are prescribed by or
performed under the generClI di recti on of persons licensed to practice medicine
... in this State <111d which is licensed or othenvise <1uthorized by the 1<1,'vs of this
State." 24 M.R5. § 2502(2) (2004). This definition includes bcilities th<1t tre,lt
mental illness. Sal/llders, 200(l ME 94, (II 14,902 A.2d at R34.
Spurwink Clrgues th,lt it is ZI health care provider within the meaning of
the statute. At the time of the incident, the Spurwink School did hold <1 Ment<11
Health Agency license from Maine's Department of He<11th <1m] Human
Services.:> (M. Dismiss Ex. F.) This docs not, however, show th<1t "skilled nursing
cClre or medic<1l services" vvere in f<1et being "prescribed by or performed under
the general direction" of licen.sed medic<1] pr<1ctitiollers <1t the school.
Furthermore, the compl<1int <1nd the public documents pl<1ced in the record do
:> The license is <1 public document th<1t lll<1y be considered on <1 motion to dismiss. l'vloody, 2004 ME 20, ~1(lr 9-11, K43 A2d <1t 47-4R. (l not show that Ms. St(mley was placed in the Cummings School to receive such
care and treatment.
On a motion to dismiss, the court's review is narrow and deferential to the
plaintiff. It would be premature to determine conclusively whether the
Cummings School was a health care provider or whether Ms. Stanley's presence
there was connected to the provision of health care services, based solely the
complaint and few extraneous documents properly before the court at this stage
of proceedings.
The entry is:
Defendant Spurwink Services' rnotion to
DATE:~201i
7 LAURIE STANLEY (PARENT & GUARDIAN OF DOROTHY STANLEY) VS SPURWINK SERVICES INC UTN:AOCSsr -2010-0070819 CASE #:PORSC-CV-2010-00337
01 0000001195 . .;.;L. .;.;A-,-V0..:. . : :.cIE:: : . .r-f--:MA=R..;;;;K-'---- _ 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 F SPURWINK SERVICES INC DEF RTND 08/09/2010
02 0000009777 .=.,D.; ;.O.; ;.UG.=.,L=A;,; ;S:f. L-.,;T:.,:H.:.;O;;.:.MA=S;.....=:L:........ _ 75 PEARL STREET PO BOX 9785 PORTLAND ME 04104-5085 I LAURIE STANLEY (PARENT & GUARDIAN) PL RTND 07/12/2010 F DOROTHY STANLEY PL RTND 07/12/2010 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-1~-J!7J 5/ fl.. ft(_ - (_ lAtfl- ~/?:.bl t DOROTHY STANLEY, by her parent and legal guardian LAURIE STANLEY
Plaintiff,
v.
SPURWINK SERVICES, INC.
Defendant.
There are two motions before the court: the defendant's Motion for Summary
Judgment and the defendant's Motion to Compel. Due to the disposition of the case
through the Motion for Summary Judgment the court does not consider the Motion to
Compel at this time.
BACKGROUND This cause of action is based on Dorothy Stanley's allegation "that Spurwink
Services, Inc., [(Spurwink)] breached its duty of care to her and allowed her to elope
from its Cummings Program on November 29, 2004, allegedly resulting in a sexual
assault by two strangers who she met while out of Spurwink's custody." (S.M.F. <_[ 1.)
Ms. Stanley has been diagnosed with a number of disabilities and disorders and was
living at Community Partners, a therapeutic group home in Biddeford. (S.M.F. <_[<_[ 2, 3.)
She attended the Cummings Program, which is an education services/ day treatment
program operated by Spurwink. (S.M.F. <_[<_[ 4, 5.) When Ms. Stanley was admitted to
the Cummings Program, Laurie Stanley claims she understood that Spurwink provided
a range of services to her daughter and that her daughter needed special care. (S.M.F.
<_[<_[ 83, 84.)
1 Spurwink is a duly accredited organization that provides behavioral health,
educational, and residential services for children, adolescents, adults and families.
(S.M.F.
operated in Portland since 1998 and it provides education in a highly structured
therapeutic environment for 13-20 year olds with behavioral and developmental
challenges. (S.M.F.
residential homes and a day treatment and educational center. (S.M.F.
Individuals in the program have various disabilities and disorders. (S.M.F.
In order to be admitted to the program a student must have a serious disorder
that requires a higher level of service than what public schools can offer. (S.M.F.
Ms. Stanley's records indicate that she was admitted to the day treatment program
because "she had a serious disorder that could benefit from a day treatment setting,
public school was an inadequate placement for her and could not meet her needs, and
she had a history of behavior that was harmful to herself or others." (S.M.F.
After she was admitted, Spurwink developed an individualized treatment or
service plan (ISP) for Ms. Stanley. (S.M.F.
psychiatrist for Spurwink, assisted in developing the ISP. (S.M.F.
evaluation, Dr. Waite noted Ms. Stanley's history of mental disabilities and her prior
discharge from a residential treatment at Lake View. (S.M.F.
she had a history of sexualized behaviors and running away. (S.M.F.
on his evaluations Dr. Waite developed diagnoses and suggested a list of treatments.
(S.M.F.<]I
In 2004 a new ISP was developed for Ms. Stanley. Many individuals from
Spurwink were present for Ms. Stanley's new ISP development in order to determine if
her continued placement there was appropriate. (S.M.F.
2 approved the ISP and Spurwink put procedures in place to follow it and track Ms.
Stanley's development. (S.M.F.
also developed, but the parties dispute when the plan was developed and who was
involved with the development. Additionally, Spurwink established a safety plan that
included individualized elopement response procedures. (S.M.F.
"On November 29, 2004, at approximately 8 a.m., Ms. Stanley arrived at the
Cummings Program and immediately told one of Spurwink's employees, Robert Cook,
that she was 'not going to school."' (S.M.F.
Payson Park. (S.M.F.
employees quickly left to pursue her; it is unclear who was involved in the search.
(S.M.F.
employees were unable to locate Ms. Stanley that day. (S.M.F.
Ms. Stanley, who was sixteen at the time of this incident, alleges that after she left
the program she approached a vehicle and the male in the car invited her into the
vehicle. (S.M.F. Cf[
intercourse in Payson Park and then went to an apartment, where she had sexual
contact with him and a friend of his." (S.M.F.
apartment, the men took her to a social services agency and she was returned to her
group home. (S.M.F.
intercourse and suffered harm as a result of her elopement. (S.M.F.
Mr. Cook testified that he did not know of any special protocol regarding Ms.
Stanley, but he was required to be familiar with her ISP and safety plan. (Add'l S.M.F.
that day are unclear from the facts provided. (Add'l S.M.F.
unclear if there were enough Spurwink employees greeting students as they got off the
3 buses on the day of the elopement, partly because it is unclear how many people are
needed for bus duty. (Add'l S.M.F.
they have a duty to keep a student safe generally. (Add'l S.M.F.
1. Standard of Review
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
see also Levine v. R.B.K. Caly Corp., 2001 ME 77,
material fact exists when there is sufficient evidence to require a fact-finder to choose
between competing versions of the truth at trial." Inkell v. Livingston, 2005 ME 42,
869 A.2d 745 (quoting Lever v. Acadia Hosp. Corp., 2004 ME 35,
ambiguities must be resolved in favor of the non-moving party. Beaulieu v. The Aube
Corp., 2002 ME 79,
2. Maine Health Security Act
The defendant argues that the allegations in the plaintiff's complaint fall within
the scope of the Maine Health Security Act. (Mot. Summ. J. 3.) Therefore, the court
does not have jurisdiction over the claim because a malpractice advisory panel must
screen the case prior to litigation. (Id.); 24 M.R.S. § 2903(1) (2011). 1 In order to fall
within the scope of this statute the case must be an action for professional negligence.
The law defines an "[a]ction for professional negligence" to mean "any action for
damages for injury ... against any health care provider, its agents or employees
1 "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 [24 M.R.S.A. § 2851 et seq]; and C. Determined that the time periods provided in section 2859 have expired." 24 M.R.S. § 2903 (2011). These provisions require involvement of the mandatory pre-litigation screening and mediation panels.
4 ... whether based upon tort or breach of contract or otherwise, arising out of the
provision or failure to provide health care services." 24 M.R.S. § 2502(6) (2011). The
Law Court has described this definition as "very broadly worded and all-
encompassing," reflecting "a legislative intent that the MHSA 'occupy the field with
regard to actions against health care providers."' Saunders v. Tisher, 2006 ME 94, <]I<]I 9,
13, 902 A.2d 830 (quoting Musk v. Nelson, 647 A.2d 1198, 1201 (Me. 1994)); see also
Olszewski v. Mayo Reg'l Hosp., 2008 U.S. Dist. LEXIS 99887, *10 (D. Me. Dec. 9, 2008)
(noting the expansive reach of the MHSA).
A "[h]ealth care provider" is "any hospital, clinic, nursing home, or other facility
in which skilled nursing care or medical services are prescribed by or performed under
the general direction of persons licensed to practice medicine ... in this State and that is
licensed or otherwise authorized by the laws of this State." 24 M.R.S. § 2502(2) (2011).
This definition includes facilities that treat mental illness. Saunders, 2006 ME 94, <]I 14,
902 A.2d 830.
The plaintiff argues that this case does not fall within the ambit of MHSA
because it merely involves a private school and the poor judgment of Mr. Cook, who is
not a medical professional. (Opp. Mot. Summ. J. 11, 13.) The defendant retorts that the
Cummings Program is not merely a private school, but is instead a private Special
Purpose program approved by the Maine Department of Education. (Reply 1.) As
such, it provides special education and supportive services and it has a day treatment
programs with educational components. (Reply 2.) Additionally, Spurwink is able to
receive reimbursements for health services, as defined by MaineCare regulations. (Id.)
Some of these reimbursements apply to services performed in order to develop the
student's ISP. (Id.) The defendant also argues that Ms. Stanley's ISP and her safety plan
5 were developed in response to her mental health needs. (Reply 3.) Based on
Spurwink's certifications and the services it offers it is a health care provider.
Since Spurwink is a health care provider and the parties do not dispute that the
damages are based on tort, therefore, the remaining question is whether those damages
arise "out of the provision or failure to provide health care services." 24 M.R.S. §
2502(6) (2011).
The Law Court has broadly defined "health care" for purposes of the MHSA as:
preventative, diagnostic, therapeutic, rehabilitative, maintenance or palliative care, services, treatment, procedures or counseling . . . that affects an individual's physical, mental or behavioral condition .... Health care includes prescribing, dispensing or furnishing to an individual drugs, biologicals, medical devices or health care equipment and supplies.
Saunders, 2006 ME 94,
Both parties rely on Thayer v. Jackson Brook Institute, Inc., 584 A.2d 653 (Me. 1991),
where a woman was attacked by a female patient while visiting her son in a locked unit
at the defendant institute. Id. at 653. The attacker's treating physicians had ordered
that she be kept under constant observation, meaning that staff would maintain visual
contact and never be further than six steps away. Id. The registered nurse on duty had
discretion to adjust the level of observation. Id. at 653-54. On the day of the attack, the
nurse assigned to the attacker had determined that it would be proper under the
circumstances to allow the attacker out of sight for a short period of time. Id. at 654.
The attack occurred within this short period. Id.
In Thayer the issue on appeal was whether the injuries the attacker inflicted on
the visiting woman arose out of patient care. Id. The plaintiff argued that the gravamen
of her complaint was "premises liability rather than professional negligence" and thus
not subject to the MHSA. Id. The Court rejected this argument. It reasoned:
6 Contact with nonpatients was an essential part of [the institute's] program of psychiatric care .... [The defendant's] alleged negligence thus cannot be divorced from the program of care this patient was receiving. If [the defendant] had a duty to protect [the plaintiff] while she was visiting its premises, that duty was executed by those who evaluated the patients and prescribed their relative freedom to interact with visitors. In this case the decision to allow both supervised and unsupervised contact with outsiders was made by persons who were caring for the assailant. Id. The decision thus arose out of patient care and was subject to the limitations of the
MHSA. Id.
The plaintiff argues that Thayer is distinguishable because the claims arose from
the alleged negligence of a nurse in exercising her professional judgment while
employed at a psychiatric hospital. Overall, she argues "Spurwink' s failures on
November 29, 2004 had nothing to do with [Ms. Stanley's] individualized 'treatment'
plan, but instead involved: 1. general administrative policies and procedures applicable
to all of the students; and 2. the poor non-professional judgment of Mr. Cook, who
cannot be classified as a health care provider or practitioner under the MHSA." (Opp.
Mot. Summ. J. 15-16.) The court finds that these arguments do not completely
distinguish this case from Thayer.
It is not clear that the nurse's professional status influenced the outcome in
Thayer. Instead it related to the implementation of the patient's treatment plan. Here,
the alleged negligence arose out of the failure to implement either the program's
policies or Ms. Stanley's treatment or safety plan. Since Spurwink is a health care
provider all of these plans are part of its overall goal of providing health care services.
The fact that these policies may also assist in providing educational services is
immaterial since all of the policies, at least in part, are in place to provide a safe and
therapeutic environment for the students in the program. 2
2 The plaintiff argues that Mr. Cook was simply using common sense when he acted. Simply because an action is common sense does not exclude it from also being professional judgment.
7 Since the defendant is a health care provider and its duty to Ms. Stanley arose
from the provision of health care services, Ms. Stanley's claims arise from "the
provision or failure to provide health care services." 24 M.R.S. § 2502(6) (2011). Her
complaint is therefore an action for professional negligence subject to the limitations of
the MHSA. 24 M.R.S. §§ 2902, 2903 (2011); (S.M.F.
the procedure required by this act, so the court does not currently have jurisdiction over
the case.
The Defendant's Motion for Summary Judgment is GRANTED.
2.1J I z_
8 LAURIE STANLEY (PARENT & GUARDIAN OF DOROTHY STANLEY) VS SPURWINK SERVICES INC UTN:AOCSsr -2010-0070819 CASE #:PORSC-CV-2010-00337
01 0000001195 LAVOIE MARK 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 F SPURWINK SERVICES INC DEF RTND 08/09/2010
02 0000009777 DOUGLAS THOMAS L 75 PEARL STREET PO BOX 9785 PORTLAND ME 04104-5085 F LAURIE STANLEY {PARENT & GUARDIAN~ PL RTND 07/12/2010 F DOROTHY STANLEY PL RTND 07/12/2010