NOT FOR PUBLICATI_ON IN WEST'S HAWAl‘I REPORTS AND PACIFIC REPORTER
NO. 28206
lN THE lNTERMEDlATE COURT OF APPEALS
oF THE sTATE oP HAwA:T
KAMALl C.E.M. MCELVANEY, JON E. MCELVANEY, PlaintiffS-AppellantS,
V. HARVELEE H. LEITE-AH YO, R.P.T., D.C., et al.,
Defendants~Appellees ag
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APPEAL FROM THE ClRCUIT COURT OF THE THIRD ClRCUI; cd
(civIL N0. 03-1~0169> sp §§
SUMMARY DlSPOSITlON ORDER §§
(By: Nakamura, C.J., Foley and Fujise, JJ.) Lq @¢
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Plaintiffs-Appellants Kamali C.E.M. McElvaney
and Jon E. McElvaney (collectively, Plaintiffs)
2006 final judgment of the Circuit Court
The judgment follows a
(McElvaney)
appeal the September l1,
of the Third Circuit1 (circuit court).
jury verdict in favor of Defendants~Appellees Harvelee H. Leite-
Ah Yo (Leite-Ah Yo), Otagani Maysonet, and Hawaii Physical
Therapy & Chiropractic Clinic, Inc. (collectiVely, Defendants).
Plaintiffs claimed Defendants were negligent in
obtaining informed consent for and in administering chiropractic
thereby necessitating McElvaney's emergency back
treatments,
On appeal, Plaintiffs allege
surgery to excise a herniated disc.
by allowing Defendants' closing
that the circuit court erred (l)
and (2) by denying the
arguments on the informed consent claim,
Plaintiffs' "Motion for Judgment Notwithstanding the Verdict, or
in the Alternative, Motion for New Trial."2
1 The Honorable Greg K. Nakamura presided.
2 we note that Plaintiffs' points on appeal do not comply with HawaiH
Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (2006) because Plaintiffs
fail to state where in the record the alleged error occurred and where the
alleged error was objected to or otherwise brought to the attention of the
court. we caution counsel that this court may disregard nonconforming points
and that we may also impose sanctions for the same. HRAP Rules 28(b)(4) and
5l.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
After careful review of the issues raised, arguments
advanced, applicable law, and the record in this case, we resolve
Plaintiffs' appeal as follows:
l. The circuit court did not abuse its discretion in
allowing Defendants' closing arguments regarding the informed
consent claim. Defendants' argued that "[i]f you're going to
have the harm come from the proposed treatment, you got to have
[Defendants] do something about their treatment that didn't meet
the standard of care. They have to in effect not do the
procedure properly." While a showing of negligence in performing
the treatment is required in traditional medical malpractice
actions, it is not an element in the tort of failure to obtain
informed consent. Compare Bernard v. Char, 79 HawaiT.37l, 903
P.2d 676 (App. l995) (discussing malpractice where risks in
dental procedure not disclosed) (aff'd by Bernard v. Char, 79
Hawaid 362, 903 P.2d 667 (l995) (Bernard II)) with Stallworth v.
Boren, 99 HawaiU.287, 54 P.3d 923 (App. 2002) (finding no
malpractice where radiologist met the standard of care).
Plaintiffs argue that Defendants' argument improperly combined
the elements of the two torts. An alternate interpretation of
Defendants' arguments, however, is that the chiropractic
procedures administered posed no risk of harm to McElvaney except
if performed negligently. This statement can be reasonably
inferred from the expert testimony. As such, Defendants' counsel
did not exceed the bounds of proper argument. State v. Clark, 83
HaWaiH.289, 304-O5, 926 P.2d l94, 209-lO (1996).
Moreover, the circuit court acted properly to address
any ambiguity in Defendants' summation. The circuit court
properly instructed the jury on legal causation and the need to
focus on court's instructions, not the argument of counsel. §§§
Montalvo v. Lapez, 77 HawaiH_282, 290, 884 P.2d 345, 353 (l994).
"As a rule, juries are presumed to be reasonable and follow all
of the trial court's instructions." ld; at 30l, 884 P.2d at 364
(quoting Mvers v. South Seas Corp., 76 Hawai°i l6l, l65, 871 P.2d
l231, 1235 (l994)) (internal quotation marks omitted). Given
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REP()RTS AND PACIFIC REPORTER
that Plaintiffs' counsel countered the Defendants' argument with
its own interpretation of the relevant law, that appropriate jury
instructions were given and the jury is presumed to have followed
them, we must conclude that the jury followed the appropriate law
on causation in arriving at its verdict. As such, the circuit
court did not abuse its discretion in allowing the Defendants'
closing arguments to stand.
2. The manifest weight of evidence does not support a
new trial on the issue of informed consent or negligent
treatment. In an informed consent action, the jury must
determine that the risk of harm posed by a procedure was material
enough that the doctor disclose the risk to a patient and that
harm eventually occurs. See Carr v. Strode, 79 Hawai‘i 475, 486,
492, 904 P.2d 489, 500, 506 (1995). Although expert testimony
must be given on the nature of the risks, see Barcai v. Betwee,
98 HawaiU.470, 484, 50 P.3d 946, 960 (2002), Mroczkowski v.
Straub Clinic & Hospital, 1nc., 6 Haw. App. 563, 567, 732 P.2d
1255, 1259 (1987), the jury is capable of determining whether
these risks are material "without reference to prevailing medical
standards or medical judgment . . . ." Qa;;, 79 Hawai5i at 485
1'1.6, 904 P.2d at 499 n.6.
Here, the expert witnesses simply disagreed about the
risks of the procedure and the cause of McElvaney’s injury.
Stallworth, 99 Hawafi at 307, 54 P.3d at 943. Plaintiffs'
experts offered anecdotes about the occurrence of disc herniation
from chiropractic care, while Defendants' experts countered that
the risk was remote. Furthermore, substantial evidence of
McElvaney's longstanding history of back problems and the
symptoms exhibited when she entered the clinic could have led the
jury to conclude that the chiropractic treatments did not cause
McElvaney's injury.
Even assuming that there were material undisclosed
risks and the treatments administered caused McElvaney's injury,
Plaintiffs did not prove that McElvaney would have opted out of
the treatment if given full disclosure of the risks. Barcai, 98
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NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER
Hawafi at 483~84, 50 P.3d at 959~60. McElvaney testified, not
surprisingly, that she would not have undergone chiropractic
treatment if she had been told the treatments might exacerbate
her condition. §§e Bernard I1, 79 HawaFi at 365-66, 903 P.2d at
670~71. The jury using an objective standard, as outlined in
Bernard II, 79 HawaiH at 366, 903 P.2d at 671, could have
concluded that McElvaney would have elected to have the treatment
because she previously consented to having the same side~posture
procedure performed by another chiropractor.
Given that the jury "weighs the contradictory evidence
and inferences, judges the credibility of witnesses, receives
expert instructions, and draws the ultimate conclusion as to the
facts[,]" we must look at whether its verdict "was palpably one
which could reasonably have been reached[.]" Stallworth, 99
Hawafi at 306-O7, 54 P.3d at 942-43 (citations and internal
quotation marks omitted). There was substantial evidence to
support the jury's verdict on the issue of informed consent.
Lastly, the manifest weight of evidence does not
contradict the jury's verdict that Defendants were not negligent
in administering chiropractic treatment. On appeal, Plaintiffs
argue that the chiropractors mis-diagnosed McElvaney's condition
as caused by sacroiliac and knee problems and accordingly treated
the wrong conditions. Although an expert testified that the
results of a test performed on McElvaney was a classic sign of an
irritated nerve, not a sacroiliac problem as diagnosed, he also
testified that it was common for irritated nerves to coincide
with sacroiliac problems.
Plaintiffs' citation to Yoshizaki v. Hilo HosDital, 50
Haw. 150, 154, 433 P.2d 220, 223~24 (1967), for the proposition
that a "provider's mistaken diagnosis, that results in an injury
to the patient, is prima facie negligence" wrongly interprets the
case. This interpretation would require medical providers to be
infallible in diagnosing patients in order to escape liability.
However, "liability is not imposed on a physician for a mistake
in diagnosis or an error in judgment except where that mistake
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results from a failure to comply with the recognized standard of
medical care[.]" 61 Am. Jur. 2d Phvsicians, Surqeons, Etc. § 230
(2005). The weight of the evidence is not sufficient to overturn
the jury's verdict. Accordingly, the circuit court did not abuse
its discretion in denying the Plaintiffs' motion for a judgment
notwithstanding the verdict or new trial.
Therefore,
1T 13 HEREBY ORDERED that the September 11, 2006
judgment of the Circuit Court of the Third Circuit is affirmed.
DATED: Honolulu, HawaFi, February 25, 2010.
On the briefs:
Arthur Y. Park, ii ""f
Laurent J. Remillard, Jr., and 4Z" ;%Z;é;$7¢z4k¢,
John C. McLaren, Chief Judge
(Park Park Yu & Remillard),
for Plaintiffs-APPellants. CéZ%nM£j§Bn§ f§5;§Z§
e
Richard C. Sutton, Jr., Associate Judg
(Sakai Iwanaga Sutton) and
G. Richard Morry,
Reginauld T. Harris, ,é;2ji4; .»
(Rush Moore)
for Defendants-Appellees. Associate Judg