86 Hawai'i 93, Ditto v. McCurdy

• Decision Date: 09 June 1997
• Docket Number: No. 17346,17346
• Citation: 86 Hawaii 93,947 P.2d 961
• Parties: 86 Hawai'i 93 Janie DITTO, Plaintiff-Appellee, v. John A. McCURDY, Jr., M.D., Defendant-Appellant, and Karla Scarpiova, Defendant.
• Court: Hawaii Court of Appeals

Page 961

947 P.2d 961

86 Hawai'i 93

Janie DITTO, Plaintiff-Appellee, v. John A. McCURDY, Jr., M.D., Defendant-Appellant and Karla Scarpiova, Defendant.

No. 17346.

Intermediate Court of Appeals of Hawai'i.

June 9, 1997.

As Amended June 20, 1997.

Syllabus by the Court

A patient who suffered breast disfigurement caused by medication visited an ear, nose, and throat specialist, who was also a cosmetic surgeon, for breast implant surgery. Following the surgery, the patient suffered a number of complications, including hematomas, infection, bloody discharges, hardening of the breasts, major depression, and alleged post traumatic stress syndrome. She ultimately underwent seven surgical procedures, culminating in the removal of both implants. The patient subsequently filed a fraud and negligence claim against the doctor and his medical assistant.

A unanimous jury verdict was returned in favor of the patient, awarding her special, general, and punitive damages against the doctor and his medical assistant. The trial court later vacated the judgment against the medical assistant, who is not a party to this appeal. The court also awarded the patient prejudgment interest and costs.

The doctor subsequently filed motions for judgment notwithstanding the verdict (JNOV) and for new trial, which were denied. The doctor appealed.

This decision holds that: (1) the trial court's post verdict review of the punitive damages award satisfies due process; (2) there was ample evidence to support the punitive damages award; (3) the punitive damages award was not excessive; (4) evidence of financial condition was not required; (5) the jury did not abuse its discretion in awarding punitive damages; (6) the motion for JNOV was properly denied by the trial court; (7) Dr. Ralph Lassa (Dr. Lassa) was qualified to testify as an expert witness; (8) the order of Dr. Lassa's testimony was immaterial; (9) Dr. Lassa's testimony was not untrustworthy; (10) the admission of Dr. Lassa's testimony was not an abuse of discretion; (11) the trial court abused its discretion by allowing Dr. Don Parsa (Dr. Parsa) to testify about hospital privileges in rebuttal; (12) the trial court abused its discretion by denying the motion for new trial based on the testimony of Dr. Parsa; (13) a motion for prejudgment interest is a motion to alter or amend a judgment under Hawai'i Rules of Civil Procedure (HRCP) Rule 59(e) and must be served no later than ten days after entry of the judgment; (14) the trial court must hold a hearing to determine when the patient's motion for prejudgment interest was served; (15) if the motion was timely, the prejudgment interest on special and general damages is affirmed at the statutorily prescribed rate of ten percent, that portion of the prejudgment interest awarded on punitive damages is reversed, and that portion of the prejudgment interest awarded on fraud damages is vacated and remanded with instructions that the trial court determine whether plaintiff-appellee Janie Ditto (Ditto) should be awarded prejudgment interest on fraud damages, if any are awarded in favor of Ditto; (16) if the motion was untimely, the entire prejudgment interest award is reversed; (17) prejudgment interest does not require purposeful delay; (18) prejudgment interest may not be awarded on punitive damages; (19) a signed consent form, standing alone, does not satisfy the doctrine of informed consent; (20) the consent form instruction was proper; (21) the trial court correctly refused the standard of care instruction because the issue was sufficiently and substantially included in the instructions given; and (22) the alleged Golden Rule and personal opinion errors were not properly preserved for appeal.

Accordingly, that portion of the judgment that awarded special, general, and punitive damages on the negligence claim is affirmed; that portion that awarded prejudgment interest on punitive damages is reversed; and the remainder of the judgment that awarded fraud damages and prejudgment interest on compensatory damages is vacated and remanded to the trial court with instructions to hold a hearing to determine when the patient's motion for prejudgment interest was served and for a new trial on the issue of fraud.

Peter Van Name Esser, Honolulu, on the brief for defendant-appellant.

David C. Schutter (Schutter & Associates, of counsel), Honolulu, on the brief for plaintiff-appellee.

Robert A. Smith (Robert A. Smith, Attorney at Law, A Law Corporation, Kaneohe, of counsel) on the amicus curiae brief for The American Board of Cosmetic Surgery, Inc. and The American Academy of Cosmetic Surgery.

Before WATANABE, ACOBA and KIRIMITSU, JJ.

KIRIMITSU, Judge.

In this medical malpractice case, defendant-appellant Dr. John A. McCurdy, Jr. (Dr. McCurdy) appeals from the First Circuit Court's initial judgment, dated July 7, 1992; the order denying Dr. McCurdy's motion for judgment notwithstanding the verdict (JNOV) dated July 20, 1992; the order granting in part plaintiff-appellee Janie Ditto's (Ditto) motion for prejudgment interest dated September 1, 1992; the order denying Dr. McCurdy's motion for reconsideration of the supplemental judgment for prejudgment interest dated August 3, 1993; the supplemental judgment for prejudgment interest and costs dated September 17, 1992; the order vacating the judgment in favor of Karla Scarpiova (Scarpiova) and confirming the judgment in favor of Dr. McCurdy dated November 6, 1992; and the August 9, 1993 amended judgment awarding compensatory and punitive damages to Ditto. ¹ We reverse that portion of the trial court's August 9, 1993 amended judgment that awarded prejudgment interest on punitive damages, vacate that portion that awarded fraud damages, vacate the remaining award of prejudgment interest, and remand for further proceedings consistent with this opinion. In all other respects, we affirm.

I. BACKGROUND

A. Summary Of The Facts

Ditto is a first generation Korean immigrant. She migrated to the United States in 1976 after marrying an American serviceman and settled in Hawai'i ten years later. Ditto suffered from a history of serious illnesses throughout her life, including childhood polio and recent problems with high blood pressure, diabetes, heart complications, and hyperthyroidism. The drug treatment for her hyperthyroidism ultimately caused her breasts to flatten.

Ditto's breast disfigurement prompted her to consider breast augmentation surgery. She subsequently visited Dr. McCurdy for a consultation on October 23, 1986. Dr. McCurdy is a board-certified otolaryngologist (generally referred to as an ear, nose, and throat specialist) with practices on Maui and in Honolulu. Dr. McCurdy is also certified by the American College of Surgeons and the American Board of Cosmetic Surgeons (ABCS). The ABCS is not recognized by the American Board of Medical Specialties, which accredits and supervises specialty practices. ² Dr. McCurdy began performing breast augmentation surgery in 1982, had performed over 150 such surgeries by 1986, gave lectures, and has published books and articles on cosmetic surgery, including breast augmentation surgery.

Ditto testified that during her consultation, Dr. McCurdy conducted a five minute physical exam and took her medical history. She testified that the medical history portion of the consultation essentially consisted of a single question, specifically, whether she was presently taking any medication. Dr. McCurdy neither asked, nor did Ditto volunteer, any information about Ditto's prior illnesses. ³ Moreover, Ditto alleges that Dr. McCurdy did not discuss any potential complications. According to Ditto, the entire consultation lasted approximately twenty minutes.

On the other hand, Dr. McCurdy testified that he discussed with Ditto the possibility that bleeding, infection, nerve damage, and hardening of the breasts could result from the surgery. His medical notes indicate that Ditto "has no history of breast masses, or other disorders and no family history of breast cancer. No bleeding disorders, aspirin or other medication that she took [sic] which would be predisposed to bleeding [sic] no known allergies." In addition, he testified that he explains to all of his patients that they have to make four decisions: type of implant, incision location, implant location, and size of implant.

At the conclusion of the consultation, Dr. McCurdy recommended a mammary augmentation by inserting silicone implants through sub-glandular incisions in the nipples. Ditto agreed. Although Ditto inquired about an under-breast incision, Dr. McCurdy explained that he did not use the procedure due to adverse consequences. In addition, Ditto testified that Dr. McCurdy did not explain any alternative forms of breast augmentation procedures, including those with potentially fewer complications.

On November 3, 1986, Ditto arrived at Dr. McCurdy's Honolulu office to undergo the breast augmentation surgery. Ditto, who testified that she has a fourth grade education, was given a consent form to "read" and sign before undergoing the procedure. Ditto, however, could not understand written English, and thus asked Dr. McCurdy what the form contained. Ditto testified that Dr. McCurdy told her the form merely gave him permission to conduct the operation.

In reality, the consent form gives a very detailed description of potential complications, including "severe loss of blood, infection, cardiac arrest and other consequences that can lead to death or permanent or partial disability, which can result from any procedure." ⁴ Additionally, the form states that the "physician has informed [the patient] of the ... risks or complications involved in [the] treatment or procedures ... and alternative forms of treatment, including nontreatment, available." Despite the explicit language of the consent form, Ditto testified that she was unable to understand any of the warnings or explanations. Nevertheless, Dr....