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Electronically Filed
Supreme Court
29988
21-JUL-2011
11:23 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
MICHAEL RAY, Individually and as Next Friend for ALYSSA RAY,
a minor, and DEBBIE RAY,
Plaintiffs-Appellees/Cross-Appellants,
vs.
KAPIOLANI MEDICAL SPECIALISTS;
Defendant-Appellant/Cross-Appellee,
and
KAPIOLANI MEDICAL CENTER FOR WOMEN AND CHILDREN,
Defendant.
NO. 29988
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIV. NO. 06-1-1150)
JULY 21, 2011
RECKTENWALD, C.J., NAKAYAMA, DUFFY, AND McKENNA, JJ.,
AND CIRCUIT JUDGE WILSON, IN PLACE OF ACOBA, J., RECUSED
OPINION OF THE COURT BY NAKAYAMA, J.
This appeal stems from an incident where Alyssa Ray
(“Alyssa”), who has lupus, received treatment from Dr. Kara
Yamamoto (“Dr. Yamamoto”), an employee of Kapi#olani Medical
Specialists (“KMS”). Michael and Debbie Ray brought this action
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in the Circuit Court of the First Circuit (circuit court) against
KMS for negligent treatment and failure to obtain informed
consent. The jury found that Dr. Yamamoto’s treatment of Alyssa
was negligent, but that it was not a legal cause of Alyssa’s
injuries. The jury also found that Dr. Yamamoto failed to
properly inform the Rays, and that her failure was a legal cause
of Alyssa’s injuries. The circuit court granted judgment as a
matter of law in favor of the Rays on their negligent treatment
claim, and entered judgment in favor of the Rays for a total of
$4,525,000. KMS appealed, asserting in part that the circuit
court erred by granting judgment as a matter of law in favor of
the Rays on negligent treatment, denying its motion for judgment
as a matter of law on informed consent, and admitting the
testimony of Dr. Bram Bernstein (“Dr. Bernstein”) that Hawaii’s
informed consent law required Dr. Yamamoto to inform the Rays of
her and the medical community’s experience with the proposed
treatment. For the following reasons, we hold that: 1) the
circuit court erred by granting judgment as a matter of law in
favor of the Rays on their negligent treatment claim, and a new
trial is required because the negligent treatment and informed
consent verdicts are irreconcilable; 2) the circuit court did not
err by denying KMS’ motion for judgment as a matter of law on the
issue of informed consent; and 3) the circuit court erred by
admitting Dr. Bernstein’s testimony and failing to adequately
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cure the error. Therefore, we vacate the circuit court’s
judgment and remand for a new trial. In light of this
conclusion, it is unnecessary to address KMS’ remaining points of
error and the points of error raised in the Rays’ cross-appeal.1
I. BACKGROUND
A. Factual and Procedural Background
In December 2003, the Rays were on vacation in
Honolulu. Prior to their vacation, Alyssa, who was fourteen
years old at the time, had developed rashes, sores, and shaky
movements. These symptoms worsened on their vacation, and the
Rays took Alyssa to Kapi#olani Medical Center for Women and
Children (“KMCWC”). An MRI revealed that Alyssa had brain
lesions.
1. Dr. Kara Yamamoto’s treatment
Dr. Yamamoto was consulted on December 24, 2003,
regarding Alyssa’s condition and concluded that Alyssa had severe
lupus with brain involvement. Lupus is a disease that involves
the inflammation of any part of the human body. Lupus patients
1
KMS also asserts that the circuit court erred by allowing rebuttal
testimony as a sanction. In their cross-appeal, the Rays assert that: 1) the
“court below erred in failing to grant a new trial based on an ambiguous jury
verdict that may have mixed its award for physical pain and suffering with
other forms of compensatory damages, resulting in [a] reduction of the verdict
not authorized by law[;]” 2) the “court below erred when it declined to
declare the cap imposed under Haw. Rev. Stat. [(HRS)] § 663-8.7
unconstitutional and amend the judgment to reflect the jury’s proper
verdict[;]” and 3) the “court below erred when it declined to award
prejudgment interest from the date Alyssa first suffered her serious and
debilitating complication (January 2005) until the date of trial.”
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with brain involvement have a higher risk of dying.
Dr. Yamamoto discussed possible treatments with the
Rays and proposed a four-week intravenous pulsing regimen using
the medication Solu-Medrol. The plan called for Alyssa to
receive one gram of Solu-Medrol a day for three consecutive days,
followed by a maintenance dose of forty milligrams of Prednisone
on the four off days. She was to repeat this process for four
weeks. Dr. Yamamoto explained to the Rays that the steroid
treatment was effective at reducing inflammation. She also
explained that steroids carried the risk of steroid myopathy, a
form of muscle weakness. She gave the Rays an informational
pamphlet indicating that the risks of side effects from steroids
generally increase with a higher dosage. Dr. Yamamoto did not
believe that lower doses of steroids would control Alyssa’s
disease and did not advise the Rays of alternative dosing
regimens.
Alyssa began her first series of pulses on December 25.
Alyssa’s condition quickly improved, and she was discharged on
December 29, 2003, with instructions to receive the remaining
three weeks of pulses as an outpatient.
Alyssa received the second series of pulses between
December 31 through January 2, and Dr. Yamamoto noticed that
Alyssa’s symptoms had improved greatly, although she still had
some mouth sores, residual left-sided weakness, and rashes. She
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received her third series of pulses between January 8 through
January 10, 2004, and several days later began experiencing
significant muscle weakness. On January 13, 2004, Alyssa saw Dr.
Yoshio Futatsugi (“Dr. Futatsugi”), who thought the weakness
could be due to steroids, but could not confirm it. Alyssa saw
Dr. Yamamoto the next day, and Dr. Yamamoto stated that she
thought the weakness might be due to the lupus. On January 15,
2004, Alyssa had an MRI taken that showed she had a new brain
lesion. Dr. Yamamoto agreed with Alyssa’s mother not to give the
fourth series of pulses, and Alyssa was readmitted to KMCWC on
January 17. Shortly thereafter, Alyssa was transported to New
York Presbyterian Hospital.
2. Alyssa’s condition in New York
Dr. Thomas Lehman (“Dr. Lehman”) assumed care over
Alyssa when she arrived in New York, and after running tests,
concluded that Alyssa’s muscle weakness was caused by the high
doses of steroids she received rather than her lupus. Alyssa’s
condition worsened and she lost muscle strength. Her muscle
weakness progressed from her hips and shoulders to her hands and
legs. Alyssa returned home after approximately six months in a
rehabilitation hospital, and has limited use of her hands and
feet.
3. Instant lawsuit
In July 2003, the Rays, individually and as next friend
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for Alyssa, filed a complaint alleging negligent treatment and
failure to obtain informed consent against KMS and KMCWC.2
4. Testimony concerning causation
With respect to the cause of Alyssa’s injuries, the
parties adduced the following relevant testimony. Dr. Yamamoto
testified that she eventually concluded that the weakness Alyssa
developed after the third series of pulses was from the steroids
she administered.
The court played the video deposition of Dr. Lehman.
He said he needed to ascertain the cause of Alyssa’s weakness in
order to effectively treat her. He initially suspected that the
large amount of steroids that Alyssa received probably caused her
muscle weakness, because it is well known that steroids can cause
myopathy while lupus does not result in “diffuse weakness.”
After running tests, he determined that Alyssa’s weakness was
caused by the steroids she received at KMS.
After being discharged from New York Presbyterian
Hospital, Dr. Anne Liebling (“Dr. Liebling”) later assumed care
of Alyssa at Gaylord Rehabilitation Hospital. When Dr. Liebling
first encountered Alyssa on May 7, Alyssa could not breathe on
her own, was “profoundly weak,” and was “severely limited in her
ability to move.” Dr. Liebling ascertained the cause of Alyssa’s
weakness in order to effectively treat Alyssa and determined that
2
The claims against KMCWC were dismissed with prejudice.
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the steroids Alyssa received at KMS caused her weakness.
Dr. Liebling also testified that she consulted with a
neurologist, Dr. Jonathan Goldstein, who determined that the
weakness was not related to her lupus. Alyssa was also treated
by Dr. Gerstenhaber at Gaylord, and Dr. Gerstenhaber concluded
that Alyssa was suffering from steroid myopathy. Dr. Liebling
testified that Dr. Rose Malfa, an attending physician at Gaylord,
concluded that Alyssa had steroid myopathy.
At trial, the Rays called Dr. Moris Danon (“Dr. Danon”)
as an expert in neurology and muscle pathology. Dr. Danon
examined Alyssa prior to trial in August. He concluded that
“it’s fairly obvious that [Alyssa’s] weakness occurred because of
the steroid administration.” He based his opinion on his
examination of Alyssa and Alyssa’s medical records. Dr. Danon
concluded that Alyssa’s muscle weakness was permanent. Dr. Danon
opined that the nine grams of Solu-Medrol given by Dr. Yamamoto
caused Alyssa’s acute steroid myopathy to a reasonable degree of
medical certainty.
Numerous witnesses testified that lupus was typically
treated with steroids, but that there was not a “set protocol”
for the dose of steroids. Dr. Lehman testified that he had never
heard of a case of permanent muscle weakness resulting from
steroid myopathy.
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Dr. Yamamoto testified that she was taught about
steroid treatment from Dr. Chester Fink (“Dr. Fink”). Dr.
Marilynn Punaro (“Dr. Punaro”) testified that she had worked with
Dr. Fink and applied the “three pulses” treatment to hundreds of
patients, and that she had only seen a small number of patients
develop life-threatening side effects. She testified that, in
the hundreds of patients she had treated using this method, she
“never encountered any muscle weakness that [she] thought was
induced by the treatment[.]” Dr. Punaro also testified about a
study which used Solu-Medrol more aggressively than Dr. Yamamoto.
The 213 patients in that study did not suffer acute steroid
myopathy. Dr. Punaro testified that she had not examined
Alyssa’s medical records and was not commenting on whether Alyssa
suffered steroid myopathy.
In her deposition testimony, which was played for the
jury, Dr. Pascual testified that she had not seen any of her
patients using the three pulse steroid treatment develop
permanent distal muscle weakness. Dr. Pascual also testified
that she had not examined Alyssa’s medical records and that she
was not opining as to what caused Alyssa’s injuries.
5. Testimony concerning informed consent
The Rays conceded that Dr. Yamamoto advised them that
steroids can cause myopathy and that Dr. Yamamoto was not
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required to warn them of permanent steroid myopathy. Instead,
the Rays claimed that Dr. Yamamoto should have advised of lower
dose options. The following relevant testimony was introduced
regarding the failure to inform of alternative doses of steroids.
Dr. Bernstein testified that he had never seen the
treatment plan proposed by Dr. Yamamoto. He testified that there
were different ways of treating a lupus patient with steroids:
1) giving the initial three grams of steroids, and then
“back[ing] off immediately and perhaps put[ting] the patient on a
small dose of Prednisone or Solu-Medrol daily[;]” 2) giving the
first three grams, and then giving one gram a week for several
weeks in a row; and 3) giving three grams in the first week of a
month, and then repeating once a month; and 4) not using pulses
at all, but giving regular maintenance doses. He testified that
these were recognized alternatives because they had been peer
reviewed and published in textbooks. Dr. Bernstein testified
that the lower doses of steroids were less risky and that the
risk of steroids is proportionate to the dose given.
Dr. Kurahara, the Chief of Pediatric Rheumatology at
KMS, testified that one gram of steroids for three days in a row
to treat severe lupus is a recognized alternative treatment, and
that doctors are required to inform patients of alternative
treatments.
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Dr. Lehman testified that one gram for three days
repeated monthly was a different therapy than Dr. Yamamoto’s
treatment. He testified that there were a variety of standard
treatments for lupus, but no universal treatment method.
Dr. Yamamoto also acknowledged that Dr. Elga Rabinovich
testified in her deposition that most pediatric rheumatologists
in the United States would give three grams the first week,
followed by one gram in each of the next three weeks. Dr.
Yamamoto admitted that this method was a reasonable method of
treatment, which had potentially less risk from steroids.
6. Testimony concerning a physician and medical
community’s experience with a treatment option
Dr. Bernstein testified that a physician should tell
the patient about the physician and medical community’s lack of
experience with a treatment option. Defense counsel objected to
this testimony, but the trial court allowed Dr. Bernstein to
continue testifying on that subject. Before proceeding, the
trial court issued the following warning:
All right. Ladies and gentlemen before Dr. Bernstein
continues testifying, I have some directions for you.
And as you’ve been told from the beginning of this
trial, when I say something you got to follow it.
You’re going to be getting an instruction from me at
the end of this case on informed consent because it’s one of
the claims of the plaintiffs here.
You’re going to be getting a specific instruction on
what informed consent is. It’s going to have a number of
specific elements as to what a doctor specifically has to
tell a patient in order to fulfill the doctrine of informed
consent in Hawaii, in this jurisdiction, and that is the law
that you’re going to have to follow as the jury in this
case.
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The reason I’m instructing you now specifically is
because Dr. Bernstein, in response to some of [plaintiff
counsel]’s questions now, is talking about informed consent,
and in his opinion what it requires, what he would tell the
patient, et cetera, et cetera.
I’m going to allow him to answer those questions for
the most part because he has been qualified as a doctor in
this area.
It’s going to be your job to take his testimony, along
with the testimony of all the other witnesses that you hear,
that I admit into evidence, and the documents, et cetera,
and put that together with the law I give you and follow the
law, okay.
So I want that really clear to you, and I think it is
at this point.
(Emphasis added.)
Dr. Bernstein testified that “a very important part of
informed consent is for the doctor to tell the patient or the
parents what his or her experience has been with that form of
treatment.” The court denied KMS’ motion for mistrial, or in the
alternative, to strike the testimony.
The Rays testified that they would not have consented
to Dr. Yamamoto’s treatment had they known of Dr. Yamamoto and
the medical community’s lack of experience with her treatment
procedure.
Dr. Danon testified that:
[Plaintiff’s counsel]: All right, doctor, one last
question for you. I’d like you to assume that Dr.
Bernstein, pediatric rheumatologist, gave his opinion,
testified in court that it was a deviation from standard of
care that Dr. Yamamoto did not provide sufficient
information to the parents to allow them to make an informed
consent to the protocol, the nine grams of Solu-Medrol, and
that had, assume further, that had they been so informed
they would not have agreed to that.
Now tell me if you have an opinion to a reasonable
degree of medical certainty whether or not that failure to
provide informed consent was a substantial factor in causing
the steroid myopathy, the resulting condition Alyssa has?
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A. If it’s assumed by Dr. Bernstein, that’s a --
Q. No, I’m asking you to assume. You have to
assume that. You assume that. Was it a substantial factor
in causing the myopathy and resulting condition?
A. Well, the steroids were substantial reason to
cause the myopathy.
Q. All right. So is the answer yes?
A. Yes.
Q. Why do you say that?
A. Because of -- there’s no other evidence that
anything else caused the myopathy.
(Emphasis added.)
The circuit court later precluded the Rays from arguing
that Dr. Yamamoto did not properly inform them by failing to
disclose her experience with the treatment. The circuit court
struck Dr. Bernstein and the Rays’ testimony regarding Dr.
Yamamoto and the medical community’s experience with Dr.
Yamamoto’s treatment. The circuit court refused to strike Dr.
Danon’s testimony because the question encompassed all of
plaintiffs’ theories about informed consent and the question did
not parse out Dr. Yamamoto’s personal experience with the
protocol. The circuit court provided the following instruction
prior to closing arguments:
You have heard testimony on the issue of informed
consent from the plaintiffs’ expert witness, Dr. Bram
Bernstein, that in his opinion, among other things, Dr. Kara
Yamamoto was required to inform Alyssa Ray’s parents
specifically about both the extent of her personal
experience and of the medical community in general with the
steroid treatment protocol which she used to treat Alyssa in
this case. This specific testimony by Dr. Bernstein is
stricken from the record and you are hereby instructed to
disregard it on the issue of informed consent.
Likewise, any testimony from Michael and Debra Ray in
which they stated that if informed by Dr. Yamamoto
specifically about the extent of her personal experience and
of the medical community in general with the subject steroid
treatment protocol, they would not have consented to its use
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in treating Alyssa is stricken from the record and you are
hereby instructed to disregard it on the issue of informed
consent.
During closing arguments, defense counsel referred to
the above instruction.
7. Verdict and renewed motion for judgment as a matter of
law
On February 23, 2009, the jury returned its special
verdict. The jury found that Dr. Yamamoto was negligent in her
treatment of Alyssa, but that her negligence was not a legal
cause of the plaintiffs’ injuries. The jury also found that Dr.
Yamamoto failed to properly inform the Rays, and that her failure
to do so was a legal cause of the plaintiffs’ injuries. The Rays
moved for judgment as a matter of law on the issue of causation
on their negligent treatment claim, and the circuit court granted
the motion on the grounds that: 1) given the evidence adduced at
trial, a reasonable juror could not have answered this question
“no;” and 2) the verdict was irreconcilable. The jury awarded
the Rays a total of $6,150,000 in damages.
8. Judgment, post-judgment motions, amended judgment, and
appeal
On March 25, 2009, the trial court entered its
judgment, sua sponte awarding the Rays $4,525,000 to reflect the
adjustment of Alyssa’s pain and suffering damages from $2 million
to $375,000 “in accordance with” HRS § 663-8.7 (1993). The court
denied KMS’ motion for a new trial and renewed motion for
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judgment as a matter of law. On April 6, 2009, the Rays filed
three motions: 1) a motion to amend the circuit court’s judgment
claiming that HRS § 663-8.7 is unconstitutional, 2) a motion for
a new trial on damages, and 3) a motion to amend the judgment to
add prejudgment interest. The circuit court denied these motions
following a hearing on July 7, 2009. On July 17, 2009, the
circuit court entered an amended judgment awarding the Rays costs
against KMS and dismissing KMCWC from the case. KMS subsequently
appealed from the judgment, the denial of KMS’ post-judgment
motions, the award of costs, and the amended judgment. The Rays
cross-appealed from the denial of their post-judgment motions.
The Rays applied for a mandatory and discretionary
transfer from the Intermediate Court of Appeals (ICA) to this
court of their cross-appeal from the circuit court’s March 25,
2009, judgment on their complaint for medical malpractice. On
April 19, 2010, this court entered an order accepting the Rays’
application for transfer pursuant to HRS § 602-58(b)(1) (Supp.
2010). Oral argument was held on October 21, 2010.
II. STANDARDS OF REVIEW
A. Judgment As a Matter Of Law
A trial court’s ruling on a motion for judgment as a
matter of law is reviewed de novo. Miyamoto v. Lum, 104 Hawai#i
1, 6-7, 84 P.3d 509, 514-15 (2004) (citing In re Estate of
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Herbert, 90 Hawai#i 443, 454, 979 P.2d 39, 50 (1999)). “A
[motion for judgment as a matter of law] may be granted only when
after disregarding conflicting evidence, giving to the non-moving
party’s evidence all the value to which it is legally entitled,
and indulging every legitimate inference which may be drawn from
the evidence in the non-moving party’s favor, it can be said that
there is no evidence to support a jury verdict in his or her
favor.” Id. at 7, 84 P.3d at 515 (block quote formatted omitted)
(quoting Tabieros v. Clark Equipment Co., 85 Hawai#i 336, 350,
944 P.2d 1279, 1293 (1997).
B. Questions of Law
“Questions of law are reviewed de novo under the
right/wrong standard.” Gump v. Wal-Mart Stores, Inc., 93 Hawai#i
417, 420, 5 P.3d 407, 410 (2000) (quoting Roes v. FHP, Inc., 91
Hawai#i 470, 473, 985 P.2d 661, 664 (1999)).
C. Evidentiary Errors
This court has adhered to the following standard to
determine whether a trial court has erred in admitting evidence:
As a general rule, this court reviews evidentiary
rulings for abuse of discretion. Kealoha v. County of
Hawai#i, 74 Haw. 308, 319, 844 P.2d 670, 676 (1993).
However, when there can only be one correct answer to the
admissibility question, or when reviewing questions of
relevance under HRE Rules 401 and 402, this court applies
the right/wrong standard of review. Id. at 319, 844 P.2d at
676; State v. White, 92 Hawai#i 192, 204-05, 990 P.2d 90,
102-03 (1999).
Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 104,
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176 P.3d 91, 103 (2008).
III. DISCUSSION
A. The Circuit Court Erred By Granting Judgment As a Matter Of
Law On the Rays’ Negligent Treatment Claim.
KMS asserts that the circuit court erred in granting
judgment as a matter of law to the Rays because: 1) “evidence
existed from which the jury could have concluded that Alyssa’s
myopathy was not caused by Dr. Yamamoto’s steroid treatment, but
by Alyssa’s pre-existing lupus or some other undetermined
cause[;]” and 2) “the jury could have found that although
prescribing a four-week steroid treatment was negligent, the
three-week treatment actually administered was not.” In
response, the Rays assert that judgment as a matter of law was
appropriate because: 1) the jury’s verdict was not supported by
substantial evidence; and 2) the jury’s verdict was
irreconcilable. We hold that the circuit court wrongly granted
judgment as a matter of law in favor of the Rays on negligent
treatment. Additionally, we hold that the jury’s verdict is
irreconcilable because the jury found that Dr. Yamamoto’s
treatment did not cause Alyssa’s injuries in the negligence
claim, but it also found that Dr. Yamamoto’s failure to properly
inform the Rays was a legal cause of Alyssa’s injuries. The
verdict is irreconcilable under the facts of this case because,
in both interrogatories, the jury was called upon to decide
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whether the second and third pulses of steroids caused Alyssa’s
injuries and gave different responses. Therefore, we remand this
case for a new trial.
1. There is substantial evidence supporting the jury’s
verdict of no causation.
KMS asserts that there was substantial evidence
supporting the jury’s verdict of no causation. This court
reviews the trial court’s granting of a renewed motion for
judgment as a matter of law de novo. Miyamoto, 104 Hawai#i at
6-7, 84 P.3d at 514-15. “A [motion for judgment as a matter of
law] may be granted only when after disregarding conflicting
evidence, giving to the non-moving party’s evidence all the value
to which it is legally entitled, and indulging every legitimate
inference which may be drawn from the evidence in the non-moving
party’s favor, it can be said that there is no evidence to
support a jury verdict in his or her favor.” Id. at 7, 84 P.3d
at 515 (quoting Tabieros, 85 Hawai#i at 350, 944 P.2d at 1293).
“[V]erdicts based on conflicting evidence will not be set aside
where there is substantial evidence to support the jury’s
findings.” Richardson v. Sport Shinko (Waikiki Corp.), 76
Hawai#i 494, 502, 880 P.2d 169, 177 (1994) (internal quotation
marks omitted) (quoting Tsugawa v. Reinartz, 56 Haw. 67, 71, 527
P.2d 1278, 1282 (1974)). Substantial evidence is “credible
evidence which is of sufficient quality and probative value to
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enable a [person] of reasonable caution to support a conclusion.”
Id. (internal quotation marks omitted) (quoting In re Doe, Born
on January 5, 1976, 76 Hawai#i 85, 93, 869 P.2d 1304, 1312
(1994)). Thus, the dispositive question on appeal is whether
substantial evidence supports KMS’ assertion that Dr. Yamamoto’s
treatment did not cause Alyssa’s injuries. The Rays bore the
burden of proving that Alyssa’s injuries resulted from Dr.
Yamamoto’s treatment. Miyamoto, 104 Hawai#i at 15, 84 P.3d at
523 (“It is well-settled that, in any negligence action, the
plaintiff - not the defendant - has the burden of proving the
requisite elements, including legal causation.”).
Substantial evidence supported the jury’s verdict. For
instance, Dr. Futatsugi’s deposition testimony was admitted into
evidence, and he testified that he could not confirm whether the
steroids administered by Dr. Yamamoto caused Alyssa’s weakness.3
Dr. Yamamoto testified that shortly after her appointment with
Dr. Futatsugi, she could not confirm whether her steroids caused
Alyssa’s weakness. Although Dr. Yamamoto testified that she
concluded that Alyssa’s weakness was due to the steroids she
administered, and that steroids were the “highest level of
3
The Rays assert that Dr. Futatsugi eventually came to the
conclusion that steroids caused Alyssa’s muscle weakness. The Rays cite to
Dr. Yamamoto’s summary of her discussions with Dr. Futatsugi to support this
conclusion. This argument is not persuasive because Dr. Futatsugi testified
that he was unsure of whether steroids caused Alyssa’s muscle weakness.
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suspicion” for Alyssa’s weakness, she also testified that at
various points she could not confirm the cause of Alyssa’s muscle
weakness. Dr. Pascual and Dr. Punaro testified that they
employed a similar treatment to the one performed by Dr. Yamamoto
and it had not caused permanent steroid myopathy. Although they
testified that they were not opining as to whether Alyssa
suffered from steroid myopathy, their testimony is some evidence
that Alyssa’s injuries were not caused by Dr. Yamamoto’s
treatment. Other witnesses also testified that they had not
heard of permanent muscle weakness as a result of steroid
myopathy and that it had not been reported in medical literature.
The evidence adduced by KMS may not be convincing, but a
reasonable juror could have inferred that the steroids that Dr.
Yamamoto administered did not cause Alyssa’s injuries.
Furthermore, the Rays had the burden of proving that
Alyssa’s injuries were caused by Dr. Yamamoto’s negligent
treatment. Id. Although the Rays produced testimony from Dr.
Danon that Dr. Yamamoto’s treatment caused Alyssa’s injuries,
expert “testimony is not conclusive and like any testimony, the
jury may accept or reject it.” Bachran v. Morishige, 52 Haw. 61,
67, 469 P.2d 808, 812 (1970). The jury was also instructed that
the plaintiffs were required to prove causation by expert
testimony, and that they could reject expert testimony in whole
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or in part. In light of the evidence noted above, the jury
reasonably could have chosen not to believe Dr. Danon and the
plaintiffs’ witnesses.4 Thus, we reverse the circuit court’s
grant of judgment as a matter of law because KMS produced
substantial evidence such that a reasonable juror could have
concluded that Alyssa’s injuries were not caused by Dr.
Yamamoto’s treatment.
2. The verdict is irreconcilable, and we therefore remand
the case for a new trial.
The circuit court also granted judgment as a matter of
law because it determined that the jury’s verdict was
irreconcilable. KMS asserts that the trial court erroneously
granted judgment as a matter of law because: 1) the verdict was
not irreconcilable; and 2) even if it was, the proper remedy was
a new trial. In response, the Rays assert that the circuit court
did not err in granting judgment as a matter of law because the
verdict was irreconcilably inconsistent. We hold that: 1) the
verdict is irreconcilable because the jury found that Dr.
Yamamoto’s treatment did not cause Alyssa’s injuries, but reached
4
The Rays also assert that KMS failed to produce expert testimony
about an alternative cause for Alyssa’s weakness. The Rays cite to cases
holding that defendants attempting to prove an alternative cause of the
plaintiff’s injury must adduce expert testimony. See Stinson v. England, 633
N.E.2d 532, 538 (Ohio 1994) (holding that a defendant seeking to prove an
alternative cause of the plaintiff’s injury must “adduce expert testimony of
its probable nature”); Smith v. German, 253 A.2d 107, 109 (Pa. 1969). The
Rays’ argument misses the point because KMS did not attempt to specifically
attribute Alyssa’s injury to an alternative cause. Instead, KMS raised doubt
about whether Dr. Yamamoto’s treatment caused Alyssa’s injuries.
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the opposite conclusion on informed consent; and 2) the proper
remedy is to remand for a new trial.
KMS asserts that the verdict is not inconsistent
because “the jury may have concluded that the steroid treatment
caused the injury, but that the particular aspect of Dr.
Yamamoto’s treatment that was negligent (her decision to
prescribe steroids for four weeks rather than three) was not the
legal cause of that injury because the pulses were discontinued
after the third week.” In response, the Rays assert that: 1)
KMS waived this argument because it did not raise it before the
trial court; 2) “the jury instructions given would not have
supported a finding of negligence based on something Dr. Yamamoto
planned but did not do[;]” and 3) the Rays “never argued, and the
jury was never asked to consider, whether Dr. Yamamoto was
negligent for planning to administer four pulses.”5
“A conflict in the answers to questions in a special
verdict does not automatically warrant a new trial; a new trial
will be ordered only if the conflict is irreconcilable.” Dunbar
v. Thompson, 79 Hawai#i 306, 312, 901 P.2d 1285, 1291 (App. 1995)
(internal quotation marks omitted) (quoting Kalilikane v.
5
The Rays raise these arguments when asserting that the jury’s
finding of negligence was based on Dr. Yamamoto’s failure to reassess the need
for steroids after she administered the first pulse. We address these
arguments in the context of whether the jury’s verdict is irreconcilable
because they are also relevant to that analysis.
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McCravey, 69 Haw. 145, 152, 737 P.2d 862, 867 (1987)). “In
determining whether an irreconcilable conflict exists between
answers to special verdict questions, the answers ‘are to be
construed in the context of the surrounding circumstances and in
connection with the pleadings, instructions, and issues
submitted.’” Id. (quoting 9A C. Wright and A. Miller, Federal
Practice and Procedure: Civil 2d § 2510, at 203 (1995)). “The
theory, however, must be supported by the trial court’s
instructions to the jury.” Carr v. Strode, 79 Hawai#i 475, 489,
904 P.2d 489, 503 (1995) (citing Toner v. Lederle Laboratories,
828 F.2d 510, 512 (9th Cir. 1987)).
First, KMS asserts that the verdict is not
irreconcilable because the jury was analyzing distinct causation
issues. This argument is not persuasive because both negligent
treatment and informed consent require a finding that the
treatment was a substantial factor in bringing about the
plaintiff’s injuries. Barcai v. Betwee, 98 Hawai#i 470, 483, 50
P.3d 946, 959 (2002) (holding that a plaintiff in an informed
consent action must prove that “the physician’s treatment was a
substantial factor in bringing about the patient’s injury”). At
trial, the Rays asserted that Dr. Yamamoto negligently treated
Alyssa by providing the second and third pulses. The negligent
treatment and informed consent verdicts are irreconcilable
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because the jury found that Dr. Yamamoto’s treatment did not
cause Alyssa’s injuries, but reached the opposite conclusion on
informed consent.
KMS now asserts that the verdict is not irreconcilable
because Dr. Yamamoto’s prescription of the fourth pulse could
have constituted her negligent treatment, and the fourth pulse
did not cause Alyssa’s injuries. KMS waived this argument. KMS
asserts that in “the trial court, [it] argued that if prescribing
the four weeks was negligent, ‘that negligence could not have
been a legal cause of Alyssa’s injuries’ and ‘[t]his fact could
explain the jury’s no-causation finding.’” However, KMS made
this argument in its reply brief in its motion for judgment as a
matter of law on the grounds that Dr. Yamamoto’s treatment was
not negligent as a matter of law. KMS never argued its
interpretation of the jury’s verdict when challenging the circuit
court’s grant of judgment as a matter of law in favor of the Rays
on the issue of causation. KMS’ argument, which was made in a
different context, did not alert the circuit court that it was
asserting that the circuit court erred by granting judgment as a
matter of law based on its newfound interpretation of the jury’s
verdict. See Kawamata Farms, Inc. v. United Agri Products, 86
Hawai#i 214, 248, 948 P.2d 1055, 1089 (1997) (“It is unfair to
the trial court to reverse on a ground that no one even suggested
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might be error.”) (quoting Ellis v. State, 821 S.W.2d 56, 57
(Ark. Ct. App. 1991)); see also Child Support Enforcement Agency
v. Doe, 109 Hawai#i 240, 246, 125 P.3d 461, 467 (2005); Scallen
v. Comm’r of Internal Revenue, 877 F.2d 1364, 1375 (8th Cir.
1989) (describing the purpose of the waiver rule as “to enforce
the policy that requires litigants to inform the trial court
promptly of any possible errors that it may have made so that it
may have an opportunity to correct them.”). Therefore, the
jury’s verdict is irreconcilable, because KMS waived the theory
under which it attempts to reconcile the jury’s verdict.
Second, KMS asserts that the proper remedy for an
irreconcilable verdict is to grant a new trial. This argument is
persuasive because a new trial is generally the remedy for an
irreconcilable verdict. See Carr, 79 Hawai#i at 489, 904 P.2d at
503 (“A conflict in the jury’s answers to questions in a special
verdict will warrant a new trial only if those answers are
irreconcilably inconsistent, and the verdict will not be
disturbed if the answers can be reconciled under any theory.”)
(emphasis added); Charles A. Wright & Authur R. Miller, Federal
Practice and Procedure § 2510 at 166-71 (2008) (“If the jury’s
answers are inconsistent with each other even when the presiding
judge views them in the most generous way to avoid such a
conclusion, a new trial under Rule 59(a) ordinarily is the proper
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pathway for the trial judge to follow and may be the required
course, as numerous federal district courts and courts of appeal
have concluded.”).
The Rays assert that judgment as a matter of law is the
proper remedy because the jury’s finding of no causation was not
supported by substantial evidence. As discussed above, this
argument is not persuasive because the jury’s no causation
finding was supported by substantial evidence.
Finally, the Rays assert that KMS waived its objection
to the inconsistency in the jury’s verdict by failing to object
before the jury was excused. (Citing Kosmynka v. Polaris Indus.,
Inc., 462 F.3d 74, 83 (2d Cir. 2006) (“It is well established
that a party waives its objection to any inconsistency in a jury
verdict if it fails to object to the verdict prior to the
excusing of the jury.”)) The Rays rely on cases holding that an
objecting party cannot raise the irreconcilability of the verdict
as a ground for a new trial after the jury has been dismissed.
Coralluzzo v. Education Mgmt. Corp., 86 F.3d 185, 186 (11th Cir.
1996) (“To allow a new trial after the objecting party failed to
seek a proper remedy at the only time possible [i.e., before the
jury is discharged] would undermine the incentives for efficient
trial procedure and would allow the possible misuse of Rule 49
procedures . . . by parties anxious to implant a ground for
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appeal should the jury’s opinion prove distasteful to them.”)
(quoting Skillin v. Kimball, 643 F.2d 19, 20 (1st Cir. 1981)).
This argument is not persuasive because the circuit court raised
the irreconcilability of the verdict sua sponte and granted
judgment as a matter of law in favor of the Rays on that ground.
KMS did not have a duty to argue for a new trial based on the
irreconcilability of the jury’s verdict before the jury was
dismissed because it was not seeking a new trial on that ground
and the circuit court raised the issue sua sponte. Therefore, we
hold that the circuit court erred by granting judgment as a
matter of law in favor of the Rays, and remand the case for a new
trial because the jury’s verdict is irreconcilable.
B. The Circuit Court Did Not Err By Denying KMS’ Motion For
Judgment As a Matter Of Law On Informed Consent.
During and after trial, KMS moved for judgment as a
matter of law on the Rays’ informed consent claim asserting
Hawai#i case law requires a plaintiff in an informed consent case
to show that he or she was not informed of a risk of injury that
in fact occurred. Because the Rays admitted that Alyssa was
informed of steroid myopathy, KMS asserted that it was entitled
to judgment as a matter of law. The trial court denied these
motions, and concluded that “there may very well be a
disconnection legal [sic] and analytically between what the cases
have told us so far about this, the elements are, and what the
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statute provides for.” The circuit court denied the motions
because HRS § 671-3 (Supp. 2009) requires the physician to inform
patients of recognized alternatives.
On appeal, KMS asserts that it is entitled to judgment
as a matter of law on the Rays’ informed consent claim because:
1) Dr. Yamamoto disclosed the possibility of the injury that
Alyssa suffered; and 2) Dr. Yamamoto’s decision not to inform the
Rays of a different dosage of the same medication is not a
“recognized alternative treatment or procedure” under HRS § 671-
3(b)(4). In response, the Rays assert that: 1) a plaintiff can
maintain an informed consent action for failure to disclose an
alternative treatment even if the physician disclosed the risk of
the injury that actually occurred; 2) KMS waived its argument
that a different dose was not an alternative treatment; and 3)
the administration of fewer pulses of steroids was an alternative
treatment. KMS’ arguments are not persuasive and we therefore
affirm the circuit court’s denial of its motions for judgment as
a matter of law.
1. Hawai#i courts have not explicitly required
plaintiffs claiming the failure to disclose an
alternative treatment to prove that they were injured
by a risk that was not disclosed to them.
KMS correctly notes that Dr. Yamamoto informed the Rays
of the risk of steroid myopathy, and that the Rays claimed that
Alyssa eventually suffered from steroid myopathy. KMS asserts
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that the following language from Hawai#i cases requires granting
KMS judgment as a matter of law:
Claims for negligent failure to obtain informed
consent typically arise when a plaintiff patient alleges
that the defendant physician failed to warn the patient of a
particular risk associated with the procedure and the
particular risk ultimately occurred. To establish a claim
of negligent failure to obtain informed consent under
Hawai#i law, the plaintiff must demonstrate that: (1) the
physician owed a duty to disclose the risk of one or more of
the collateral injuries that the patient suffered; (2) the
physician breached that duty; (3) the patient suffered
injury; (4) the physician’s breach of duty was a cause of
the patient’s injury in that (a) the physician’s treatment
was a substantial factor in bringing about the patient's
injury and (b) a reasonable person in the plaintiff
patient’s position would not have consented to the treatment
that led to the injuries had the plaintiff patient been
properly informed; and (5) no other cause is a superseding
cause of the patient’s injury.
Barcai v. Betwee, 98 Hawai#i 470, 483-84, 50 P.3d 946, 959-60
(2002) (emphasis added) (citing Bernard v. Char, 79 Hawai#i 362,
365, 371, 903 P.2d 667, 670, 676 (1995)).
HRS § 671-3(b) requires physicians to inform patients
of the “recognized alternative treatments or procedures,
including the option of not providing these treatments or
procedures[,]” the “recognized material risks of serious
complications or mortality associated with” those procedures, and
the “recognized benefits of the recognized alternative treatments
or procedures.” HRS § 671-3(b)(4)-(6). Hawai#i courts have also
concluded that an element of informed consent is providing
information about “recognized possible alternative forms of
treatment.” Barcai, 98 Hawai#i at 483, 50 P.3d at 959 (citing
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HRS § 671-3); Keomaka v. Zakaib, 8 Haw. App. 518, 524, 811 P.2d
478, 482-83 (App. 1991) (stating that a physician is required to
inform the patient of the items in HRS § 671-3(b)).
As the circuit court observed, although the general
language in Hawai#i case law supports KMS’ argument, KMS has not
shown that Hawai#i courts have directly held that plaintiffs
claiming the failure to disclose an alternative treatment are
required to show that they suffered an injury that the physician
failed to disclose. For instance, in Barcai, this court observed
that claims “for negligent failure to obtain informed consent
typically arise when a plaintiff patient alleges that the
defendant physician failed to warn the patient of a particular
risk associated with the procedure and the particular risk
ultimately occurred.” Barcai, 98 Hawai#i at 483, 50 P.3d at 959
(emphasis added).
KMS asserts that Keomaka v. Zakaib is a case involving
the failure to disclose an alternative treatment where the ICA
held that plaintiffs are required to prove that they suffered an
injury not disclosed to them. 8 Haw. App. at 524-25, 811 P.2d at
483. This argument is not persuasive because Keomaka did not
directly confront the issue of whether a plaintiff claiming a
failure to properly inform of alternative treatments must also
prove that she “would not have undergone the treatment had he
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known of the risk of harm that in fact occurred.” See id. at
527, 811 P.2d at 484. Although the court cited that rule, it did
not hold that a different causation standard does not apply to
alternative treatment claims. Thus, Hawai#i courts have not
required plaintiffs claiming the failure to disclose an
alternative treatment to prove that they were injured by a risk
that was not disclosed to them.
KMS’ interpretation of Hawaii’s informed consent law is
incorrect for three reasons. First, this court has interpreted
HRS § 671-3(b) as supplying the standard for a physician’s duty
to disclose information to the patient. Barcai, 98 Hawai#i at
483, 50 P.3d at 959 (noting that the elements of informed consent
commonly consist of informing the patient about recognized
possible alternative forms of treatment, including
non-treatment); Keomaka, 8 Haw. App. at 524, 811 P.2d at 483;
Ditto v. McCurdy, 86 Hawai#i 84, 90, 947 P.2d 952, 958 (1997)
(“It is well established that the doctrine of informed consent
imposes an affirmative duty upon physicians or surgeons to fully
disclose to a patient ‘the types of risks and alternatives’ to a
proposed treatment or surgery.”). Because this court has
interpreted HRS § 671-3(b) as requiring a physician to disclose
an alternative treatment to a patient, requiring a plaintiff to
prove that she suffered an injury that the physician failed to
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disclose conflicts with Hawaii’s informed consent statute.
Second, other courts have held that an informed consent
action for failure to properly inform of alternative treatments
requires a plaintiff to “show causation by establishing that a
‘prudent person in the patient’s position would have decided
differently if adequately informed.’” Caputa v. Antiles, 686
A.2d 356, 363 (N.J. Super. Ct. App. Div. 1996) (internal
quotation marks omitted) (quoting Largey v. Rothman, 540 A.2d
504, 510 (N.J. 1988)). This standard more fully comports with
Hawaii’s case law because it allows a plaintiff to prove that the
physician’s failure to inform of an alternative treatment caused
the injury.
Third, KMS asserts that the legislative history of HRS
§ 671-3(b) indicates that the purpose of enacting the statute was
to lessen physicians’ liability and decrease medical malpractice
insurance premiums. (Citing Keomaka, 8 Haw. App. at 528, 811
P.2d at 484-85.) The general purpose of HRS § 671-3 does not
override this court’s interpretation of that statute as supplying
the standard for informed consent. Furthermore, the report KMS
refers to in Keomaka states that even “if the patient actually
does consent to the particular procedure or operation, liability
may be predicted on the basis that he was not made fully aware of
the risks involved or the alternatives available.” Hse. Stand.
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Comm. Rep. No. 417-76, in 1976 House Journal, at 1459 (emphasis
added). This language undermines KMS’ interpretation by
indicating that the failure to disclose an alternative treatment
gives rise to a cause of action for failure to provide informed
consent.
KMS also asserts that the legislature failed to respond
to this court’s interpretation of HRS § 671-3. It observes that
when “the legislature fails to act in response to our statutory
interpretation, the consequence is that the statutory
interpretation of the court must be considered to have the tacit
approval of the legislature and the effect of legislation.”
State v. Dannenberg, 74 Haw. 75, 83, 837 P.2d 776, 780 (1992),
superceded by statute on other grounds as stated in, State v.
Klie, 116 Hawai#i 519, 174 P.3d 358 (2007). This argument is not
persuasive because this court has never established the
interpretation of HRS § 671-3 urged by KMS. Therefore, the
circuit court did not err by denying KMS’ motion for judgment as
a matter of law on the Rays’ informed consent claim.
2. An alternative dosage of the same medication can be a
“recognized alternative treatment” under HRS § 671-
3(b)(4).
KMS asserts that “a different dose option for the same
medication that was actually administered is not an alternative
treatment or procedure that must be disclosed to a patient under
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HRS section 671-3(b)(4).” In response, the Rays assert that: 1)
KMS waived this argument; and 2) administering fewer pulses to
treat lupus was an alternative treatment.6 We agree with the
Rays.
First, the Rays assert that KMS waived this argument
because it was not raised in any of its three motions for
judgment as a matter of law. KMS responds that it raised this
argument in its reply brief in support of its renewed motion for
judgment as a matter of law. Because KMS did not raise this
argument until its reply brief, it has waived it. See Abrams v.
Ciba Specialty Chemicals Corp., 663 F. Supp.2d 1220, 1232 n.16
(S.D. Ala. 2009) (“[N]ew arguments are impermissible in reply
briefs.”).
Second, even assuming KMS properly preserved this
argument, alternative doses of the same medication can constitute
“recognized alternative treatments.” Whether a different dose of
the same medication can constitute an alternative treatment is an
issue of first impression in this jurisdiction. Hawai#i courts
have adopted the patient-oriented standard for determining
whether particular information must be disclosed to a patient.
This court has held that the “dispositive inquiry regarding the
6
The Rays also assert that KMS invited the error. It is
unnecessary to reach this issue in light of our conclusion that KMS has waived
it.
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physician’s duty to disclose in an informed consent case,
therefore, is not what the physician believes his or her patient
needs to hear in order for the patient to make an informed and
intelligent decision; the focus should be on what a reasonable
person objectively needs to hear from his or her physician to
allow the patient to make an informed and intelligent decision
regarding proposed medical treatment.” Carr v. Strode, 79
Hawai#i 475, 485-86, 904 P.2d 489, 499-500 (1995).
Under the foregoing standard, an alternative dosage can
constitute a “recognized alternative treatment” within the
meaning of HRS § 671-3(b)(4). If a reasonable patient would need
to hear the information to make an informed decision, the
physician is required to disclose that information. In the
instant case, the plaintiffs adduced evidence that recognized
alternative dosing regimens had a lower risk of steroid myopathy.
Thus, the Rays adduced evidence that a reasonable person would
need to hear about the different recognized pulsing methods to
make an informed decision.
KMS asserts that “requiring a physician to disclose
such information would not only dramatically expand the
physician’s liability (because a patient could always claim, in
hindsight, that the physician should have disclosed the option of
receiving a lower dose), it would likely overwhelm the patient
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and interfere with the patient’s ability to make an informed and
intelligent decision about his or her healthcare.” KMS’ concerns
are overstated. Section 671-3(b)(4) requires a physician to
inform a patient of “recognized alternative treatments or
procedures.” (Emphasis added.) This court has held that “expert
testimony will ordinarily be required to establish the
‘materiality’ of the risks, i.e., ‘the nature of risks inherent
in a particular treatment, the probabilities of therapeutic
success, the frequency of the occurrence of particular risks, and
the nature of available alternatives to treatment.’” Barcai, 98
Hawai#i at 484, 50 P.3d at 960 (quoting Carr, 79 Hawai#i at 486,
904 P.2d at 500). Thus, healthcare providers will not be
overwhelmed by our holding because the plaintiff will need to
show that the medical community recognizes the different dosage
as an alternative treatment. Therefore, we hold that the circuit
court properly denied KMS’ motion for judgment as a matter of
law.
C. The Circuit Court Erred By Admitting Dr. Bernstein’s
Testimony and the Error Was Not Cured By the Circuit Court’s
Instructions To the Jury.
KMS asserts that the circuit court erroneously allowed
the plaintiffs’ standard of care expert, Dr. Bernstein, to
testify that Dr. Yamamoto owed a duty to disclose her and the
medical community’s experience with the treatment, and that she
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failed to meet that obligation.7 We hold that the circuit court
erred by admitting Dr. Bernstein’s testimony regarding Dr.
Yamamoto’s experience with the treatment,8 and that its error was
not cured by its instructions to the jury.
At the time the Rays consented to treatment, Hawaii’s
informed consent statute did not explicitly require a physician
to disclose her or the medical community’s experience with a
treatment option. See HRS § 671-3 (1993). “The elements of
informed consent commonly consist of ensuring that the patient
consents to the prescribed procedure only after being made aware
of the: (1) condition being treated; (2) nature and character of
the proposed treatment or surgical procedure; (3) anticipated
results; (4) recognized possible alternative forms of treatment;
and (5) recognized serious possible risks, complications, and
anticipated benefits involved in the treatment or surgical
procedure, as well as the recognized possible alternative forms
of treatment, including non-treatment.” Barcai, 98 Hawai#i at
483, 50 P.3d at 959 (emphasis added) (citing HRS § 671-3). After
Barcai, the legislature amended HRS § 671-3 by deleting the
7
KMS also asserts that the circuit court erred by admitting Dr.
Danon’s testimony that Dr. Yamamoto’s failure to properly inform the Rays
caused Alyssa’s injuries. Because we hold that the trial court erred by
admitting Dr. Bernstein’s testimony, it is unnecessary to address KMS’
argument regarding Dr. Danon’s testimony.
8
In light of this conclusion, it is unnecessary to address the
medical community’s experience with the treatment.
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requirement that a physician disclose the “nature and character”
of the proposed treatment, and replacing it with a requirement to
provide a “description of the proposed treatment or procedure.”
HRS § 671-3 (Supp. 2010).
The Rays assert that the circuit court did not err by
admitting Dr. Bernstein’s testimony, because at the time they
consented to the treatment, HRS § 671-3 required a physician to
disclose the “nature and character” of the treatment. They
assert that the physician’s experience falls within the nature
and character of the treatment. This argument is not persuasive
because, even assuming that the prior version of HRS § 671-3
applies, the Rays point to no authority interpreting the “nature
and character” language as inclusive of a physician’s experience
with a particular treatment. Additionally, the plain language of
HRS § 671-3 indicates that this interpretation is untenable. The
term “character” is not defined by HRS § 671-3, however, this
court “may resort to legal or other well accepted dictionaries as
one way to determine the ordinary meaning of certain terms not
statutorily defined.” Nuuanu Valley Ass’n v. City and County of
Honolulu, 119 Hawai#i 90, 98, 194 P.3d 531, 539 (2008) (internal
quotation marks omitted) (quoting Leslie v. Bd. of Appeals of the
County of Hawai#i, 109 Hawai#i 384, 393, 126 P.3d 1071, 1080
(2006)). Character, in this context, is defined as “the
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aggregate of features and traits that form the individual nature
of some person or thing.” Webster’s Unabridged Dictionary 346
(2d ed. 2001). Similarly, nature means “having the character or
qualities of” a thing. Id. at 1281. Dr. Yamamoto’s experience
with pulse therapy is not a distinguishing feature or attribute
of steroid pulse therapy. Therefore, the plain language of HRS §
671-3 rejects the Rays’ interpretation of the term “nature and
character” and Dr. Bernstein’s testimony that a physician should
disclose her experience with a treatment to properly obtain
informed consent was contrary to Hawai#i law.
The circuit court’s error in admitting Dr. Bernstein’s
testimony was not cured by its instructions to the jury. “When a
court has admonished a jury to disregard an improper statement,
the ordinary presumption is that the jury will do so.” Chung v.
Kaonohi Center Co., 62 Haw. 594, 599, 618 P.2d 283, 287 (1980),
abrogated on other grounds by, Francis v. Lee Enterprises, Inc.,
89 Hawai#i 234, 244, 971 P.2d 707, 717 (1999). However, “this
court has held that when improper testimony is prejudicial to the
opposing party, the ordinary presumption prevails ‘only if there
is a reasonable certainty that the impression upon the jury could
be or was dispelled by the court’s admonition.’” Id. (quoting
Young v. Price, 48 Haw. 22, 27, 395 P.2d 365, 368 (1964)). In
the instant case, Dr. Bernstein’s testimony was referred to
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numerous times by multiple witnesses. For instance, Michael and
Debbie Ray testified that they would not have consented to the
treatment had they known Dr. Yamamoto’s inexperience with it.
Additionally, the curative instruction came nearly a month after
the admission of Dr. Bernstein’s testimony. Under these
circumstances, the presumption does not apply because there was
not a reasonable certainty that the impression could be or was
dispelled by the court’s admonition. See id. at 599-600, 618
P.2d at 288 (holding that the admission of testimony was cured by
the trial court’s instruction where “there was not a series of
improper statements throughout the trial, nor was the improper
testimony allowed to stand, thereby permitting emotional and
irrelevant testimony to influence the jury”).
The Rays also assert that the cautionary instruction
issued when Dr. Bernstein testified indicates that the jury “did
not absorb [his] testimony uncritically.” This argument is
unpersuasive because the cautionary instruction did not tell the
jury that Dr. Bernstein’s testimony was inadmissible.
Furthermore, the circuit court allowed multiple witnesses to
refer to that testimony before issuing a curative instruction
more than three weeks after the inadmissible testimony. Because
the cautionary instruction was incomplete, it did not cure the
circuit court’s error. Therefore, we reverse the circuit court’s
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judgment because Dr. Bernstein’s inadmissible testimony about Dr.
Yamamoto’s experience with steroid pulse therapy was not cured by
the circuit court’s instructions to the jury.
IV. CONCLUSION
For the foregoing reasons, we vacate the circuit
court’s judgment and remand for a new trial.
Kenneth S. Robbins of Robbins /s/ Mark E. Recktenwald
and Associates (John-
Anderson L. Meyer and Sergio /s/ Paula A. Nakayama
Rufo of Robbins & Associates
and Andrea M. Gauthier of /s/ James E. Duffy, Jr.
Horvitz & Levy LLP, with
with him on the briefs) for /s/ Sabrina S. McKenna
Defendant-Appellant/Cross-
Appellee Kapiolani Medical /s/ Michael D. Wilson
Specialists
Robert S. Peck of the Center
for Constitutional Litigation,
P.C., pro hac vice, (Collin M.
(Marty) Fritz and Allen K.
Williams of Trecker & Fritz,
Philip Russotti of Wingate,
Russotti & Shapiro, LLP,
pro hac vice, and Margaret C.
Jenkins with him on the
briefs) for Plaintiffs-
Appellees/Cross-Appellants
Girard D. Lau, Solicitor General,
Kimberly Tsumoto Guidry and
Deirdre Marie-Iha, Deputy
Solicitors General, for
Amicus Curiae Attorney
General of the State of
Hawai#i
40
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Arthur F. Roeca, April Luria, and
Jodie D. Roeca of Roeca, Louie
& Hiraoka for Amicus Curiae
Hawaii Medical Association
and American Medical Association
41