Stanley V. Spurwink Svs., Inc.

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STATE OF MAINE CUMBERLAND, ss. SUPERIOR COURT CIVIL ACTION DOCKET NO: CV-I0-337 g f( !;'G .-" ( Ll, \ ) . i I I / DOROTHY STANLEY, by her parent and legal guardian Laurie Stanley, Plaintiff, ~. ~)i~~J' v. *~,c.,O SPURWfNK SERVICES, I~q\(}(>~,~'\}\\ :!..t{::- ~?:>' .~ to /".. V ~~~.t·· . ,~,"13~/ ~~ ~{} rfj;, ORDER ON MOTION FOR DISMISSAL .'\ \.) (,. . '(./\ r'" ""'....., .~<. \) 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. 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. 1 2 (CampI. <If 13; M. Dismiss Ex. C at 1.) Two days later another meeting was held to 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. <Jl20.) Mr. Holden WLIS employed by 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 (Compl. WclS (n 27.) Ms. StClnley reClppeared notified at approximCltely R:15 Cl.111. 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<ls exhibi ted signs of psychologicCl1 dClmClgc 4 clS cl resu H of 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<lCl1y 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 02 0000009777 .=.,D.; ;.O.; ;.UG.=.,L=A;,; ;S:fL-.,;T:.,:H.:.;O;;.:.MA=S;.....=:L:........ . 75 PEARL STREET PO BOX 9785 PORTLAND ME 04104-5085 I LAURIE STANLEY (PARENT & GUARDIAN) PL F DOROTHY STANLEY PL _ RTND 08/09/2010 _ RTND RTND 07/12/2010 07/12/2010 STATE OF MAINE CUMBERLAND, ss. SUPERIOR COURT CIVIL ACTION DOCKET NO: CV-1~-J!7J fl.. ft(_ - (_ lAtfl~/?:.bl t 5/ 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. <JI 21, 22 as qualified by Opp. S.M.F. <JI 21.) The Cummings Program has 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. <JI<JI 23, 24 as qualified Opp. S.M.F. <JI<JI 23, 24.) The program offers residential homes and a day treatment and educational center. (S.M.F. <JI 24.) Individuals in the program have various disabilities and disorders. (S.M.F. <JI 25.) 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. <JI 26.) 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. <JI 28.) After she was admitted, Spurwink developed an individualized treatment or service plan (ISP) for Ms. Stanley. (S.M.F. <JI<JI 32-35.) Dr. Timothy Waite, a consulting psychiatrist for Spurwink, assisted in developing the ISP. (S.M.F. <JI 35.) As part of his 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. <JI 36.) He also noted that she had a history of sexualized behaviors and running away. (S.M.F. <JI<JI 37-38.) Based on his evaluations Dr. Waite developed diagnoses and suggested a list of treatments. (S.M.F.<]I<JI 39-41.) This evaluation served as a basis for the ISP. 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. <JI<JI 42-47.) Dr. Waite 2 approved the ISP and Spurwink put procedures in place to follow it and track Ms. Stanley's development. (S.M.F. <JI<JI 61-66.) A plan for Ms. Stanley's supervision was 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. <JI<JI 66-67.) "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. <JI 11.) She then left and walked towards Payson Park. (S.M.F. <JI 12.) Mr. Cook alerted others to the situation and several employees quickly left to pursue her; it is unclear who was involved in the search. (S.M.F. <JI<JI 13, 14, 91, 92 qualified by Opp. S.M.F. <JI 13, 91, 92; Add'l S.M.F. CJI 7.) These employees were unable to locate Ms. Stanley that day. (S.M.F. <JI 15.) 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[<JI 16, 19.) "Ms. Stanley alleges that she and the stranger had sexual 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. <JI 17.) After spending the night at the apartment, the men took her to a social services agency and she was returned to her group home. (S.M.F. <JI 18.) Ms. Stanley claims that she did not consent to the intercourse and suffered harm as a result of her elopement. (S.M.F. <JI 20.) 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. <JI<JI 20-28 as qualified by Opp. Add'l S.M.F. <JI<JI 20-28.) His exact actions and intentions that day are unclear from the facts provided. (Add'l S.M.F. <JI 37, 39-41.) Also, it is 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. <J[<J[ 30-32, 34, 36.) Spurwink personnel agree that they have a duty to keep a student safe generally. (Add'l S.M.F. <I[ 42.) DISCUSSION 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, <I[ 4, 770 A.2d 653. "A genuine issue of 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, <I[ 4, 869 A.2d 745 (quoting Lever v. Acadia Hosp. Corp., 2004 ME 35, <I[ 2, 845 A.2d 1178). Any ambiguities must be resolved in favor of the non-moving party. Beaulieu v. The Aube Corp., 2002 ME 79, <I[ 2, 796 A.2d 683. 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 allencompassing," 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, <J[ 11, 902 A.2d 830 (quoting 22 M.R.S. § 1711-C(l)(C) (2005)). 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. <J[ 79.) The plaintiff has not followed the procedure required by this act, so the court does not currently have jurisdiction over the case. The entry is: 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 PL LAURIE STANLEY {PARENT & GUARDIAN~ F DOROTHY STANLEY PL RTND RTND 07/12/2010 07/12/2010

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