dissenting.
I respectfully dissent from the majority opinion in the following respects:
(1) Assuming that the motion for prejudgment interest of Plaintiff-Appellee Janie Ditto (Ditto) was timely served, I disagree that Hawaii Revised Statutes (HRS) § 686-16 (1993) authorized the trial judge to award Ditto prejudgment interest from October 23, 1986, the date of Ditto’s initial consultation with Defendant-Appellant Dr. John A. McCurdy, Jr. (Dr. McCurdy). The plain language of HRS § 636-16 requires that in tort cases, the earliest commencement date that can be designated in awarding interest is “the date when the injury first occurred.” In the case of Ditto, I believe her actual injury occurred on November 3, 1986, the date she underwent the first surgery, and not on October 23, 1986 when she merely met with Dr. McCurdy to discuss the surgery.
(2) In light of Craft v. Peebles, 78 Hawai'i 287, 893 P.2d 138 (1995), I believe that the trial court committed prejudicial error when it refused to instruct the jury that the standard of care required of Dr. McCurdy had to be determined from expert medical testimony. In Craft, the supreme court stated:
It is well settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. The standard of care to which a doctor has failed to adhere must be established by expert testimony because “a jury generally lacks the ‘requisite special knowledge, technical training and background to be able to determine the applicable standard without the assistance of an expert.’”. There are, however, exceptions to the rule.
The “common knowledge” exception, which is similar to the doctrine of res ipsa loquitur, provides that certain medical situations present routine or non-complex matters wherein a lay person is capable of supplanting the applicable standard of care from his or her “common knowledge” or ordinary experience.
There are “some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge in the patient’s interior, or removes or injures an inappropriate part of his anatomy, or when a tooth is dropped down his windpipe or he suffers a serious burn from a hot water bottle, or when instruments are not sterilized, the thing speaks for itself without the aid of any expert’s advice.”
When the “common knowledge” exception is applied, the medical malpractice case transforms into an ordinary negligence case, thus obviating the necessity of expert testimony to establish the applicable standard of care. This exception, however, is rare in application.
Id. at 298, 893 P.2d at 149 (emphasis added, citations omitted).
Thus, the law in this jurisdiction except in those rare situations which the majority concedes are not present in this case, is that the standard of care in medical malpractice cases can only be determined from expert medical testimony.
Expert testimony is important because the focus of the proof ... is on particular professional standards. Such standards may be much more detailed and more difficult to understand than the duties typically imposed on lay defendants. Moreover, without expert testimony, the jury might not understand that a physician is neither an insurer nor a warrantor of the results of the treatment. Thus, proof of an unfavorable result, standing alone, does not establish a physician’s liability. Physicians cannot be held liable for mistakes in judgment if pursuing methods regarded as acceptable by their profession.
1 D.W. Louisell, E. Josselyn, & H. Williams, Medical Malpractice ¶ 8.04[3][a] at 8-53 — 8-54 (1996). Even the majority acknowledges that “in the vast majority of jurisdictions including our own, ... expert testimony is generally a necessity to establish the standard of care and medical negligence.” Majority Opinion at 121-22, 947 P.2d at 987-988.
*129The majority also acknowledges that “the trial court’s refusal of a relevant instruction that correctly states the law will render the instructions as a whole prejudicially insufficient if the principle is not adequately and fully covered by other instructions.” Majority Opinion at 116, 947 P.2d at 984 (citing Agee v. Kahului Trucking & Storage, Inc., 67 Haw. 365, 369, 688 P.2d 256, 259 (1984)). The majority further concedes that, in the instant ease, the jury instruction requested by Dr. McCurdy was a correct statement of the principle of law that the standard of care had to be determined from expert medical testimony.1 Majority Opinion at 121-22, 947 P.2d at 988. Nevertheless, the majority concludes that “Dr. McCurdy’s requested instruction was superfluous,” although nowhere in its opinion does the majority find that this particular principle or point of law is covered by other instructions.
The majority’s conclusion that the lower court correctly denied Dr. McCurdy’s requested instruction is based on (1) the failure of Dr. McCurdy to include an instruction on the burden of proving the standard of care, and (2) its view that “instructions three, seventeen, twenty-two, and twenty-seven, when considered as a whole, adequately embodied the soul of Dr. McCurdy’s requested instruction[.]” Majority opinion at 126-27, 947 P.2d at 994 (emphasis added). However, the majority’s own description of these instructions demonstrates the inadequacy of the instructions given.
First, the four instructions cited by the majority clearly did not inform the jury about the principle of law espoused in the requested instruction. Instead, the four instructions informed the jurors that (1) they should consider only the evidence presented at trial in arriving at a verdict; however, they were not required to set aside their own observations and experiences in the affairs of life and could consider the evidence in the light of common sense (instruction number three); (2) they should consider the testimony of experts “like any other testimony” and expert testimony “is to be tried by the same tests, and should receive such weight and credit as the jury deems it is entitled to, when viewed in connection with all other facts and circumstances” (instruction number seventeen); (3) negligence constitutes a failure to possess and exercise the skill, care, and knowledge commonly possessed and exercised by members of the profession (instruction number twenty-two); and (4) the plaintiff held the burden of proving that defendants were negligent and that their negligence was the legal cause of the plaintiffs injuries or damage (instruction number twenty-seven). None of these four instructions presented the law that the standard of care can only be established by expert medical testimony.
Not only did these four instructions fail to even address the law in question, the general instruction in instructions number three and seventeen establish why it was necessary to *130clearly instruct the jury that the determination of the standard of care must be based only on the testimony of expert medical witnesses. In instruction number three, the jury was told that it could consider the evidence “in the light of [its own] common sense ... [and] in the light of [its own] experience.” The jury was also told in instruction number seventeen, that the “testimony of experts is to be considered like any other evidence and ... should receive whatever weight and credit [the jury thinks] it is entitled to, ... [and that] [t]he weight and value to be given to expert testimony, if at all, are for you, the jury to decide.” (Emphasis added).
Because the jury was specifically told that expert testimony was like any other evidence and could be disregarded if the jury did not believe that such evidence was entitled to any weight and credit, it is quite possible that the jury did indeed disregard the expert testimony, wholly or in part, and relied on its own judgment or other evidence as the standard of care. Dr. McCurdy was therefore clearly prejudiced by the trial court’s refusal to give his requested instruction on the standard of care. See McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870, 874 (1912) (trial court erred when it refused to instruct jury that in determining whether doctor had exercised ordinary care and skill, it could not set up a standard of its own, but must be guided solely by testimony of physicians; and if jury could not determine from such evidence what constituted ordinary care and skills under circumstances of this case, then there was failure of proof and jury could not find for plaintiff); Promen v. Ward, 70 Ohio App.3d 560, 591 N.E.2d 813, 817 (1990) (it is the trial court’s duty to include in its charge to the jury a plain, distinct, and unambiguous statement of the law applicable to the case at hand, and where jury was given a standard negligence instruction but not an instruction on the applicable standard of care applicable to a medical malpractice case, jury could have been misled to plaintiffs prejudice).
(3) The majority has remanded the fraud count against Dr. McCurdy for a new trial and has therefore declined to address Dr. McCurdy’s contention that the trial court’s jury instruction as to fraud was improper. I have serious reservations, however, as to whether, as a matter of law, Dr. McCurdy can be held liable for fraud.
Ditto’s first amended complaint alleged that Dr. McCurdy had committed fraud and misrepresentation by (1) holding himself out to Ditto as a plastic surgeon when he was not a plastic surgeon but an ear, nose, and throat specialist; and (2) permitting Karla Scar-piova (Karla) to engage in the practice of nursing when she was not a nurse and not licensed to practice nursing in the State of Hawai'i.
Since there was no evidence adduced at trial that Karla or Dr. McCurdy had ever represented that Karla was a nurse, Karla filed post-judgment motions seeking to vacate the judgment against her for-fraud. The trial court ultimately agreed with Karla and entered an order vacating the judgment against her for fraud. Since Karla was determined not to be liable for fraud, I don’t see how Dr. McCurdy could be liable for fraud based on Karla’s conduct. Therefore, the only fraud allegation against Dr. McCur-dy related to his failure to disclose that he was not a plastic surgeon, i.e., Dr. McCurdy’s silence as to his qualifications.2
*131The Hawai'i Supreme Court has stated that the elements of fraud include:
1) false representations made by the defendant; 2) with knowledge of their falsity (or without knowledge of their truth or falsity); 3) in contemplation of plaintiffs reliance upon them; and 4) plaintiffs detrimental reliance.
Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 30, 837 P.2d 1273, 1288 (1992) (emphasis added).
As a general rule, however, silence about a particular matter is not a representation and does not constitute fraud unless there is a legal duty to disclose that matter:
The law distinguishes between passive concealment and active concealment, or in other words, between mere silence and the suppression or concealment of a fact, the difference consisting in the fact that concealment implies a purpose or design, while the simple failure to disclose a fact does not. Mere silence is not representation, and a mere failure to volunteer 'information does not constitute fraud. Thus, as a general rule, to constitute fraud by concealment or suppression of the truth there must be something more than mere silence or a mere failure to disclose known facts. Where there is no obligation to speak, silence cannot be termed “suppression,” and therefore is not a fraud. Either party may, therefore, be innocently silent as to matters upon which each may openly exercise his judgment.
Silence, in order to be actionable fraud, must relate to a material matter known to the party and which it is his legal duty to communicate to the other contracting party, whether the duty arises from a relation of trust, from confidence, from inequality of condition and knowledge, or other attendant circumstances.... Concealment or nondisclosure becomes fraudulent only when there is an existing fact or condition, as distinguished from mere opinion, which the party charged is under a duty to disclose.
37 Am.Jur.2d Fraud and Deceit § 145 (1968).
The evidence at trial revealed that while Dr. McCurdy was certified by the American Board of Otolaryngology in 1976, became a Fellow of the American College of Surgeons in 1977, received his board certification as a cosmetic surgeon with the American Board of Cosmetic Surgeons in 1986, and had performed over 150 breast augmentation surgeries by 1986, he was not certified by the American Board of Plastic and Reconstructive Surgeons at the time he performed the surgeries on Ditto. The evidence also indicated that cosmetic surgeons and plastic and reconstructive surgeons performed similar medical treatments and surgeries and that nationwide, a turf battle has been escalating between cosmetic surgeons and plastic and reconstructive surgeons as to which specialty could perform what surgeries. Finally, the evidence showed that in Hawai'i, doctors are licensed to practice medicine without regard to any specialty. Since a physician can choose the specialty that he or she wishes to limit his or her practice to, then any licensed physician in Hawai'i can specialize in plastic surgery. The dispositive issue then is whether Dr. McCurdy, who was certified as, and held himself out to be, an otolaryngologist, surgeon, and cosmetic surgeon, had a duty to inform Ditto that he was not certified as a plastic surgeon. This is a question of law, Birmingham v. Fodor’s Travel Publications, Inc., 73 Haw. 359, 366, 833 P.2d 70, 74 (1992), and I am not convinced that such a duty exists. Therefore, I question whether it is appropriate to remand the fraud issue for a new trial.
. The majority states, in footnote 17 of the opinion, that because Plaintiff-Appellee Janie Ditto (Ditto) "argued” that Dr. McCurdy committed fraud by both the failure to disclose that he was not a plastic surgeon and that he allegedly did not have hospital privileges, on remand, "the jury will decide, based on the evidence presented at trial, whether board certification, medical specialties, hospital privileges, or any other issue were material facts based on the facts and circumstances of Dr. McCurdy's relationship with Ditto.” I have serious reservations as to whether Ditto should be allowed to present evidence of the hospital privileges or any other issue not pleaded by Ditto in her complaint for relief.
Hawai'i Rules of Civil Procedure Rule 9(b) requires that "[i]n all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity.” The Hawai'i Supreme Court has said that the foregoing rule
is designed, in part, to insure the particularized information necessary for a defendant to prepare an effective defense to a claim which embraces a wide variety of potential conduct. Thus, under Rule 9(b) general allegations of "fraud” are insufficient because they serve little or no informative function[;] rather, a plain*131tiff must state the circumstances constituting fraud ... with particularity (e.g., allege who made the false representations) and specify the representations made.
Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 30-31, 837 P.2d 1273, 1288 (1992) (citations omitted).
The only particularized statements of fraud alleged in Ditto's complaint related to Dr. McCurdy's holding himself out as a plastic surgeon and his permitting Karla Scarpiova to engage in the unlicensed practice of nursing. I therefore question whether Ditto has sufficiently pleaded fraud as to the hospital privilege issue.