RIGHT TO PRIVACY CASE
ESTATE OF BERTHIAUME v. PRATT, M.D.
Supreme Judicial Court of Maine
365 A.2d 792 (1976)
Administratrix of decedent's estate brought action for damages against
physician for invasion of decedent's right to privacy and for assault
and battery on him. The Superior Court, Kennebec County, granted the
physician's motion for directed verdict and administratrix appealed. The
Supreme Judicial Court, Pomeroy, J., held that if the decedent, while
on his death bed, had physically manifested his desire not to be
photographed by the physician for purposes of physician's records, the
decedent's wife had told the physician that the decedent did not wish to
be photographed, but nevertheless, the physician photographed the
decedent after lifting his head to place a pillow thereunder, the
physician was liable for invasion of the decedent's privacy and for
assault and battery.
Appeal sustained; new trial ordered.
POMEROY, Justice.
The appellant, as administratrix, based her claim of right to damages on
an alleged invasion of her late husband's "right to privacy" and on an
alleged assault and battery of him. At the close of the evidence
produced at trial, a justice of the Superior Court granted defendant's
motion for a directed verdict.
Appellant's seasonable appeal brings the case to this court.
The appellee is a physician and surgeon practicing in Waterville, Maine.
It was established at trial without contradiction that the deceased,
Henry Berthiaume, was suffering from a cancer of his larynx. Appellee,
an otolaryngologist, had treated him twice surgically. A laryngectomy
was performed; and later, because of a tumor which had appeared in his
neck, a radical neck dissection on one side was done. No complaint is
made with respect to the surgical interventions.
During the period appellee was serving Mr. Berthiaume as a surgeon, many
photographs of Berthiaume had been taken by appellee or under his
direction. The jury was told that the sole use to which these
photographs were to be put was to make the medical record for the
appellee's use. There is nothing in the case to suggest that the
photographs were to be shown to students for teaching purposes or were
to be used as illustrative photographs in any text books or papers. The
only persons to whom the photographs were available were those members
of appellee's staff and the appropriate hospital personnel who had
duties to perform with respect to medical records.
Although at no time did the appellee receive any written consent for the
taking of photographs from Berthiaume or any members of his family, it
was appellee's testimony that Berthiaume had always consented to having
such photographs made.
At all times material hereto Mr. Berthiaume was the patient of a
physician other than appellee. Such other physician had referred the
patient to appellee for surgery. On September 2, 1970, appellee saw the
patient for the last time for the purpose of treatment or diagnosis. The
incident which gave rise to this lawsuit occurred on September 23,
1970.
It was also on that day Mr. Berthiaume died.
Although appellee disputed the evidence appellant produced at
trial in many material respects, the jury could have concluded from the
evidence that shortly before Mr. Berthiaume died on the 23rd, the
appellee and a nurse appeared in his hospital room. In the presence of
Mrs. Berthiaume and a visitor of the patient in the next bed, either Dr.
Pratt or the nurse, at his direction, raised the dying Mr. Berthiaume's
head and placed some blue operating room toweling under his head and
beside him on the bed. The appellee testified that this blue toweling
was placed there for the purpose of obtaining a color contrast for the
photographs which he proposed to take. He then proceeded to take several
photographs of Mr. Berthiaume.
The jury could have concluded from the testimony that Mr.
Berthiaume protested the taking of pictures by raising a clenched fist
and moving his head in an attempt to remove his head from the camera's
range. The appellee himself testified that before taking the pictures he
had been told by Mrs. Berthiaume when he talked with her in the
corridor before entering the room that she "didn't think that Henry
wanted his picture taken."
It is the raising of the deceased's head in order to put the operating
room towels under and around him that appellant claims was an assault
and battery. It is the taking of the pictures of the dying Mr.
Berthiaume that appellant claims constituted the actionable invasion of
Mr. Berthiaume's right to privacy.
At the close of all the evidence, the presiding justice, acting on
a motion seeking such action, directed a verdict for the defendant, as
he is permitted to do under the provisions of Rule 50(a), M.R.Civ.P.
This seasonably filed appeal followed.
We sustain the appeal.
The announced rationale of the presiding justice for the action
taken may best be summed up by quoting two statements he made when he
explained to the jury why he was withdrawing the case from their
consideration and directing a verdict. At one point, while addressing
the jury, he said:
"The mere fact the taking of pictures, under the best circumstances, in
other words, assuming that the pictures were taken without consent as
the plaintiff-administratrix complains, the mere taking of pictures is
not an invasion of privacy. There is no proof they were published; no
proof they were used for any purpose other than their intended use in
the record-keeping process by the doctor in the care of the patient that
he had."
Later, while addressing the jury, he said:
"The law says in the course of his treating a patient, the doctor has
the right to lay his hand on you in order to provide you with treatment
for which you have sought his advice, and his attention and care and
treatment.
"Although the taking of pictures is not necessarily a treatment,
it is part of the overall medical care, an association, a relationship
between the doctor and the patient, and as the doctor has testified, I
think medical science must have some information in its effort to track
down and search for a cure."
We have not previously had occasion to discuss the right to
privacy, nor have we ever declared that if there is such right, its
violation constitutes an actionable tort.
Warren and Brandeis are credited by most textwriters with seeding
the thought for the development of the invasion of the right to privacy
as an independent and distinct tort. 4 Harv.L.Rev. 193 (1890).
[1] By our decision in this case we join a majority of the
jurisdictions in the country in recognizing a "right to privacy." We
also declare it to be the rule in Maine that a violation of this legally
protected right is an actionable tort.
Specifically in this case we rule an unauthorized intrusion upon a
person's physical and mental solitude or seclusion is a tort for the
commission of which money damages may be had.
[2] The law of privacy addresses the invasion of four distinct
interests of the individual. Each of the four different interests, taken
as a whole, represent an individual's right "to be let alone." These four kinds of invasion are:
(1) intrusion upon the plaintiff's physical and mental solitude or seclusion;
(2) public disclosure of private facts;
(3) publicity which places the plaintiff in a false light in the public eye;
(4) appropriation for the defendant's benefit or advantage of the plaintiff's name or likeness.
As Prosser explains it:
"As it has appeared in the cases thus far decided, it is not one tort,
but a complex of four. To date the law of privacy comprises four
distinct kinds of invasion of four different interests of the plaintiff,
which are tied together by the common name, but otherwise have almost
nothing in common except that each represents an interference with the
right of the plaintiff 'to be let alone.'" W. Prosser, Law of Torts, 804 (4th ed. 1971).
Continuing, it is written in Prosser:
"Taking them in order---intrusion, disclosure, false light, and
appropriation---the first and second require the invasion of something
secret, secluded or private pertaining to the plaintiff; the third and
fourth do not. The second and third depend upon publicity, while the
first does not, nor does the fourth, although it usually involves it.
The third requires falsity or fiction; the other three do not. The
fourth involves a use for the defendant's advantage, which is not true
of the rest." Id., at 814.
[3] All cases so far decided on the point agree that the plaintiff need not plead or prove special damages. Punitive damages can be awarded on the same basis as in other torts where a wrongful motive or state of mind appears [Allen v. Rossi,
128 Me. 201, 146 A. 692, 693 (1929)], but not in cases where the
defendant has acted innocently as, for example, in the mistaken but good
faith belief that the plaintiff has given his consent. Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942).
[4] In this case we are concerned only with a claimed intrusion
upon the plaintiff's intestate's physical and mental solitude or
seclusion. The jury had a right to conclude from the evidence that
plaintiff's intestate was dying. It could have concluded he desired not
to be photographed in his hospital bed in such condition and that he
manifested such desire by his physical motions. The jury should have
been instructed, if it found these facts, that the taking of pictures
without decedent's consent or over his objection was an invasion of his
legally protected right to privacy, which invasion was an actionable
tort for which money damages could be recovered.
Instead, a directed verdict for the defendant was entered,
obviously premised on the presiding justice's announced incorrect
conclusion that the taking of pictures without consent did not
constitute an invasion of privacy and the further erroneous conclusion
that no tort was committed in the absence of "proof they [the
photographs] were published."
Another claimed basis for appellant's assertion that a right to
recover damages was demonstrated by the evidence is the allegations in
her complaint sounding in the tort of assault and battery. As
earlier indicated, the presiding justice announced as his conclusion
that consent to a battery is implied from the existence of a
physician-patient relationship. While we do not acknowledge the
correctness of this pronouncement by the justice presiding because in
our view it is so broad as to be inaccurate, even if the statement were
true, the action taken by the presiding justice was not legally
justified. It was based on a major premise that a physician-patient
relationship existed at the time of the actions complained of. The jury
had not yet had the opportunity to decide if such a relationship had
been established. The evidence in the case at the time of the justice's
action clearly established that plaintiff's intestate was under the care
of another physician. The patient had been referred to appellee for
surgery on two occasions. The only other occasion for direct contact
with the patient occurred substantially before the alleged invasion of
the right to privacy when appellee examined plaintiff's intestate
preliminarily to giving his opinion to the attending physician only as
to the advisability of proposed therapy. There is nothing to suggest
that the appellee's visit to plaintiff's intestate's room on the day of
the alleged invasion of privacy was for any purpose relating to the treatment
of the patient. Appellee acknowledges that his sole purpose in going to
the Berthiaume hospital room and the taking of pictures was to conclude
the making of a photographic record to complete appellee's record of
the case. From the evidence, then, it is apparent that the jury had a
right to conclude that the physician-patient relationship once existing
between Dr. Pratt and Henry Berthiaume, the deceased, had terminated.
[5] As to the claimed assault and battery, on the state of the
evidence, the jury should have been permitted to consider the evidence
and return a verdict in accordance with its fact finding. It should have
been instructed that consent to a touching of the body of a patient may
be implied from the patient's consent to enter into a physician-patient
relationship whenever such touching is reasonably necessary for the
diagnosis and treatment of the patient's ailments while the
physician-patient relationship continues. Quite obviously also, there
would be no actionable assault and battery if the touching was expressly
consented to. Absent express consent by the patient or one
authorized to give consent on the patient's behalf, or absent consent
implied from the circumstances, including the physician-patient
relationship, the touching of the patient in the manner described by the
evidence in this case would constitute assault and battery if it was
part of an undertaking which, in legal effect, was an invasion of
plaintiff's intestate's "right to be let alone."
It has been urged upon us that great benefit inures to medical
science from the taking and preservation of photographs. The evidence
discloses that the appellee had taken photographs at various stages
during the course of Berthiaume's fatal illness and had made these
photographs a part of appellee's medical record of the case. It is
argued that by looking at Berthiaume's photographs appellee would be
better able to evaluate and predict the progress of a malignancy of the
same type and nature in other patients similarly afflicted. We are urged
to declare as a matter of law that it was the physician's right to
complete the photographic record by capturing on film Berthiaume's
appearance in his final dying hours, even without the patient's consent
or over his objections. This we are unwilling to do.
We recognize the benefit to the science of medicine which comes
from the making of photographs of the treatment and of medical
abnormalities found in patients. However, we agree with the reasoning
expressed by Alessandroni, J., sitting in the Court of Common Pleas in
Pennsylvania, when in writing of a fact situation almost identical to
that now before us, he said in Clayman v. Bernstein, 38 Pa.D. & C. 543 (1940):
"The court recognized that an individual has the right to decide whether that
which is his shall be given to the public and not only to restrict and
limit but also to withhold absolutely his talents, property, or other
subjects of the right of privacy from all dissemination. The facial
characteristics or peculiar caste of one's features, whether normal or
distorted, belong to the individual and may not be reproduced without
his permission. Even the photographer who is authorized to take a
portrait is not justified in making or retaining additional copies for
himself.
"A man may object to any invasion, as well as to an unlimited
invasion. Widespread distribution of a photograph is not essential nor
can it be said that publication in its common usage or in its legal
meaning is necessary. It may be conceded that the doctrine of privacy in
general is still suffering the pains of its birth and any doctrine in
its inception borrows from established precedent. An analogy to the laws
of libel, however, is not justified under the circumstances of this
case. The author of a libel is the creator and there can be no offense
until the contents are communicated to another. One cannot invade the
rights of another merely by expressing his thoughts on paper. Two
persons are necessary. One's right of privacy, however, may be invaded
by a single human agency. Plaintiff's picture was taken without her
authority or consent. Her right to decide whether her facial
characteristics should be recorded for another's benefit or by reason of
another's capriciousness has been violated. The scope of the
authorization defines the extent of the acts necessary to constitute a
violation. If plaintiff had consented to have her photograph taken only
for defendant's private files certainly he would have no right to
exhibit it to others without her permission. Can it be said that his
rights are equally extensive when even that limited consent has not been
given?" Id., at 546--47.
Because there were unresolved, disputed questions of fact, which,
if decided by the factfinder in favor of the plaintiff, would have
justified a verdict for the plaintiff, it was reversible error to have
directed a verdict for the defendant.
The entry must be:
Appeal sustained.
New trial ordered.
All Justices concurring.
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