## Facts

- Henry Berthiaume, suffering from advanced laryngeal cancer, was treated surgically by Dr. Loring Pratt, an otolaryngologist.
- During treatment, Pratt (or staff at his direction) took multiple photographs for Pratt’s medical records; access was limited to staff and hospital personnel.
- Pratt did not obtain written consent but testified Berthiaume had previously consented to medical photography.
- Pratt last saw Berthiaume for treatment or diagnosis on September 2, 1970.
- On September 23, 1970 (the day Berthiaume died), another physician was primarily responsible for Berthiaume’s care; Pratt was consulted regarding possible chemotherapy.
- Shortly before death, Pratt and a nurse entered Berthiaume’s hospital room and, in the presence of Berthiaume’s wife and another patient’s visitor, raised Berthiaume’s head and placed operating-room towels under and beside him to facilitate photographs.
- Evidence permitted findings that Berthiaume resisted the photography by gestures (including a clenched fist and moving his head away) and that his wife objected, yet Pratt proceeded.
- The estate alleged (1) invasion of privacy by nonconsensual photography in a private hospital setting and (2) assault and battery based on the physical manipulation to stage the photographs.

## Issues

1. Whether nonconsensual photography of a dying patient in a hospital room can constitute invasion of privacy as an intrusion upon seclusion, even without publication or dissemination.
2. Whether physically positioning the patient to take photographs can constitute battery when consent is disputed, or is necessarily covered by implied consent from the physician–patient relationship.
3. Whether the evidence required submission of these claims to the jury, making a directed verdict improper.

## Decision

- The Supreme Judicial Court of Maine reversed the directed verdict for Pratt and remanded for a new trial.
- The court held the privacy claim could proceed because the asserted wrong was intrusion upon seclusion, for which publication is not a required element.
- The court held the battery claim could proceed because a jury could find an offensive touching without consent; implied consent from a physician–patient relationship was not established as a matter of law on the record.
- The court concluded factual disputes about consent, the nature and purpose of the touching, and the operative status of any physician–patient relationship required jury resolution.

## Legal Principles

- Invasion of privacy includes intrusion upon solitude or seclusion; liability may arise from the intrusive act itself, even absent publication of photographs.
- Consent is central to evaluating intrusion and bodily contact; refusal or withdrawal of consent may be shown by words or conduct and is generally a fact question when disputed.
- Implied consent associated with medical care is limited to touchings reasonably connected to authorized diagnosis or treatment and does not automatically extend to non-therapeutic acts.
- A directed verdict is improper where, viewing the evidence most favorably to the nonmovant, reasonable jurors could differ on material facts such as consent, offensiveness, and the scope of any implied medical authorization.

## Conclusion

The court allowed the estate to proceed to trial on claims that deathbed photography without consent could be an actionable intrusion upon seclusion and that physically positioning the patient for that purpose could constitute battery, because contested evidence required jury determination rather than judicial resolution by directed verdict.


Estate of Berthiaume v. Pratt, 365 A.2d 792 (Me. 1976)