78 Hawai'i 230, Aga v. Hundahl, 17330

Citation891 P.2d 1022,78 Hawaii 230
Decision Date24 March 1995
Docket NumberNo. 17330,17330
Parties78 Hawai'i 230 Uria Howard AGA, Individually, and as Special Administrator of the Estate of Nancy Aga, Deceased, and as Next Friend of Galutau Ierome Aga, Manhart Penina Aga, Paulo Tamatane Aga, and Jacob Howard Aga, minors, Plaintiffs-Appellants/Cross-Appellees, v. Scott HUNDAHL, M.D., Defendant-Appellee/Cross-Appellant, and The Queen's Medical Center; The Queen's Health System; The Queen's Health Technology Corporation; The Queen's Health Care Plan Inc.; The Queen's Health Services; Kaiser Foundation Hospital; Kaiser Foundation Health Plan Inc.; Hawaii Permanente Medical Group Inc.; Kaiser Foundation International; Hawaii Kaiser Permanente Care; John Does 1-50; Jane Does 1-50; Doe Municipalities 1-50; Doe Partnerships 1-50; and Doe Corporations 1-50, Defendants.
CourtSupreme Court of Hawai'i

David C. Schutter (Eve M. Green with him on the briefs) of Schutter & Associates, Honolulu, for plaintiffs-appellants/cross-appellees.

Dennis E.W. O'Connor (Kelvin H. Kaneshiro with him on the briefs) of Reinwald O'Connor Marrack Hoskins & Playdon, Honolulu, for defendants-appellees/cross-appellants.

Before MOON, C.J., and LEVINSON and NAKAYAMA, JJ., Circuit Judge CRANDALL in place of KLEIN, J., recused, and Circuit Judge HUDDY in place of RAMIL, J., recused.

NAKAYAMA, Justice.

This appeal arises out of a medical malpractice jury trial in which appellee/cross-appellant, Scott Hundahl, M.D., (Appellee) was found negligent but not a legal cause of Nancy Aga's (Nancy) death. Appellants/cross-appellees, Nancy's husband--Uria Howard Aga (Howard)--and her four children, Galutau Ierome Aga, Manhart Penina Aga, Paulo Tamatane Aga and Jacob Howard Aga (including Howard, collectively Appellants), appeal the jury's verdict, contending that: (1) the trial court erroneously used the term "legal cause" instead of "substantial factor" in the jury instruction on causation (2) the jury's special verdict finding that Appellee was negligent but not a legal cause of Nancy's death was unsupported by the evidence; (3) the trial court erred in admitting and excluding certain expert witness testimony; and (4) the trial judge denied Appellants a fair trial due to his personal bias against them.

Following entry of the circuit court's judgment upon the special verdict in favor of Appellee, Appellants moved for a judgment notwithstanding the verdict (JNOV) and/or for a new trial. The trial court denied this motion. Appellants appeal from the trial court's judgment in favor of Appellee. Appellee cross-appeals from the order denying his motion for partial summary judgment as to compensatory damages based on the findings of an arbitration proceeding to which Appellee was not a party.

We affirm.


During a routine gynecological examination on March 7, 1989, Nancy was told that a mass was detected in the wall of her rectum. As a member of the Kaiser-Permanente health plan, she was referred to Wilfred Tashima, M.D., a surgeon with the Kaiser-Permanente plan, who evaluated the mass and determined that it was a leiomyosarcoma, a malignant, fleshy tumor. At the time, Nancy was thirty-two years old.

Approximately one month and one week after the diagnosis, Nancy was admitted to the Kaiser Medical Center (Kaiser) for surgical removal of the tumor. Dr. Tashima contacted Appellee, a doctor who specializes in cancer surgery, to assist in Nancy's operation. On April 20, 1989, Dr. Tashima, with the assistance of Appellee, performed extensive, eviscerating surgery on Nancy.

After the surgery, Nancy was given a drug called Tagamet to decrease the stomach acid that commonly accumulates after undergoing her particular type of operation.

On April 26, 1989, Nancy began hallucinating, seeing family members on the television and in her room when no one was present. During the early morning hours of April 27, 1989, Nancy again reported seeing and hearing people who were not present. After consulting with Appellee, Dr. Tashima decided that the Tagamet medication was causing Nancy to hallucinate and ordered a 24-hour "sitter" to watch over her. Between 9:48 a.m., the time that Dr. Tashima ordered the sitter, and 11:00 a.m., when Dr. Tashima gave a verbal order to start Nancy on Haldol, an antipsychotic medication used to counteract the hallucinogenic effects of Tagamet, Appellee wrote an order to discontinue the Tagamet. Nancy received her last dose of Tagamet at approximately 6:00 a.m. on April 27, 1989.

Nancy was discharged from Kaiser at approximately 11:00 a.m. on April 28, 1989 and transferred to Queen's Medical Center (QMC) in order to undergo "brachytherapy," a form of radiation therapy that was unavailable at Kaiser. Prior to Nancy's arrival at QMC, Appellee wrote Nancy's QMC admitting orders, discontinuing Nancy's Haldol medication and not continuing the 24-hour sitter. When Nancy was admitted to QMC at 12:22 p.m., she had with her a Patient Transfer Form that was filled out by the nurses at Kaiser and subsequently incorporated into Nancy's records at QMC. This form indicated that Nancy had suffered side effects of Tagamet in the form of hallucinations, but that she had been "mentally cleared" as of 11:30 a.m. on April 27, 1989. Another form, entitled "Nursing Assessment Form," was filled out at QMC and contained Nancy's own characterization of her reaction to Tagamet--it "drove [me] nuts."

On the afternoon of her arrival at QMC, Nancy was taken to the radiology department for x-rays to determine whether the plastic catheters needed for the brachytherapy that had been inserted during the operation at Kaiser were in their proper positions. Howard, who had accompanied Nancy to QMC, later testified that both before and immediately after the x-rays were taken, Nancy began hallucinating again. Howard, however, did not inform anyone of Nancy's condition.

At about 4:00 p.m., after the x-rays were taken, Nancy was returned to her room where, as part of the brachytherapy, radiation implants, or "seeds," were inserted into the plastic catheters. Lead radiation shields were then placed around Nancy's bed to contain the radiation. Howard left QMC at approximately 4:30 p.m.

Later that evening, between 6:00 and 6:30 p.m., Nancy called Howard at home and told him that someone was in her room talking to her. Howard thought Nancy sounded strange, so he called QMC and spoke to a nurse, Rebecca Nylund. Howard informed Nylund of Nancy's hallucinatory episodes at Kaiser and requested that the QMC staff keep an eye on her.

After the call, Nylund went to check on Nancy and found her to be alert, pleasant, and cooperative. Consequently, Nylund did not report the telephone call from Howard to anyone other than Allison Brundage, the nurse who replaced her on the evening of April 28, 1989. Nylund also did not enter anything about the phone call on Nancy's medical chart.

Appellee saw Nancy at approximately 7:00 p.m. on April 28, 1989. At that time, Appellee believed that Nancy was doing well.

Later that night, at approximately 8:15 p.m., Nancy was found walking in the hallway near her room, calling to someone named "Elaine" and asking, "Why are they laughing and crying?" Nancy was assisted back to her room and told to remain in her bed. A few minutes later, Nancy was again seen in the hallway, this time attempting to enter the room of another patient. She had left her intravenous pole in her room and disconnected her urinary catheter. Nancy was again taken back to her room. This time, however, she refused to lie down and instead sat at the foot of the bed. While one nurse watched Nancy from the doorway, another nurse went to get physical restraints to keep Nancy in the bed.

Meanwhile, Nancy quickly arose from her bed, reached beside the bed, picked up a heavy lead container used to hold the radiation ribbons that had been placed in the catheters in her body, went to the locked sliding glass door, and proceeded to break the glass with the lead container. Crawling through the hole she had made in the window and onto a small lanai outside her room, Nancy then climbed over the railing and fell seven floors. Nancy was pronounced dead shortly thereafter by Juris Bergmanis, M.D.

As a result of Nancy's death, Appellants brought suit against QMC, Kaiser, and Appellee on July 17, 1991. On September 18, 1991, Kaiser filed a motion to stay the action and to compel arbitration that was granted on October 22, 1991.

The arbitration with Kaiser was held from November 16 through November 20, 1992. As a result of the arbitration, Kaiser was found to be thirty percent liable for the injuries and damages were awarded to Appellants in the sum of $1,304,596.00. According to the arbitration decision, the amount awarded represented one-hundred percent of Appellants' economic and non-economic damages sustained as a proximate result of both Kaiser's "negligence or fault and the negligence or fault of any other person or organization involved in the care and treatment of Nancy Aga."

On December 8, 1992, Appellants filed a motion for confirmation of the arbitration award and entry of judgment. On December 21, 1992, the order granting Appellants' motion was filed together with a satisfaction of judgment.

On December 31, 1992, QMC filed a motion for partial summary judgment as to compensatory damages. Appellee filed a joinder in the motion on January 29, 1993. The trial court denied this motion in an order entered on February 25, 1993. QMC then filed a motion for reconsideration of the denial of its summary judgment motion, in which Appellee again filed a joinder. Appellee also filed his own motion for reconsideration of the same order denying QMC's motion for summary judgment. Kaiser filed a joinder in the reconsideration motions of both QMC and Appellee. 1

Appellants settled their claims with QMC on March 19, 1993, the date both QMC's and Appellee's motions for reconsideration were heard by the circuit court. QMC,...

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