89 Hawai'i 244, Buck v. Miles, 20368

• Decision Date: 25 January 1999
• Docket Number: No. 20368,20368
• Citation: 971 P.2d 717
• Parties: 89 Hawai'i 244 Gordon Gaylord BUCK, individually and as Guardian of the Property of Leslie O'Toole-Buck, an incompetent person, Plaintiff-Appellant, v. Alexander Scott K. MILES, M.D.; A. Scott K. Miles, Inc.; a Hawaii corporation; John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Trusts 1-10; Doe "Non-Profit" Organizations 1-10; and Roe Governmental Agencies 1-10, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 717

971 P.2d 717

89 Hawai'i 244

Gordon Gaylord BUCK, individually and as Guardian of the

Property of Leslie O'Toole-Buck, an incompetent person, Plaintiff-Appellant, v. Alexander Scott K. MILES, M.D.; A. Scott K. Miles, Inc.; a

Hawaii corporation; John Does 1-10; Jane Does 1-10; Doe

Corporations 1-10; Doe Partnerships 1-10; Doe Trusts 1-10;

Doe "Non-Profit" Organizations 1-10; and Roe Governmental

Agencies 1-10, Defendants-Appellees.

No. 20368.

Supreme Court of Hawai'i.

Jan. 25, 1999.

Ian L. Mattoch and Daniel P. Kirley, Honolulu, on the briefs, for plaintiff-appellant.

Jeffrey S. Portnoy, Honolulu (Roy A. Vitousek, III, Kailia Kona, Alexander W. Woody of Cades, Schutte, Fleming & Wright with him on the brief) Honolulu, for defendants-appellees.

MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, J.

Plaintiff-appellant Gordon Gaylord Buck, individually and as Guardian of the Property of Leslie O'Toole-Buck, appeals from the circuit court's order granting defendants-appellees Alexander Scott K. Miles, M.D. and A. Scott Miles, Inc.'s renewed motion for summary judgment. On appeal, Buck contends that the circuit court erred in granting Dr. Miles's renewed motion for summary judgment because (1) the statute of limitations period under Hawai'i Revised Statutes (HRS) § 657-7.3 (1985) ¹ was not triggered until Buck was able to secure an expert opinion as to (a) Dr. Miles's violation of a We hold that O'Toole-Buck's cause of action accrued in October 1988 when she possessed knowledge of the facts necessary for an actionable claim. We also hold, however, that a genuine issue of material fact exists as to whether O'Toole-Buck was mentally incompetent at the time her cause of action accrued, thereby raising the issue of the applicability of the tolling provision under HRS § 657-13(2). Accordingly, we vacate the circuit court's order granting Dr. Miles's renewed motion for summary judgment and remand the case for further proceedings consistent with this opinion.

[89 Hawai'i 246] legal duty, and (b) the causal connection between Dr. Miles's violation and the damages; or, (2) in the alternative, the limitation period under HRS § 657-7.3 was tolled due to O'Toole-Buck's mental incompetency under HRS § 657-13(2) (1985). ²

I. BACKGROUND

In March 1988, O'Toole-Buck underwent heart surgery at Straub Hospital and Clinic to replace a mitral valve with a mechanical prosthesis. Coumadin, an anticoagulant medication that decreases the formation of blood clots, was prescribed for O'Toole-Buck as a prophylaxis to prevent clotting. Between April and September 1988, Dr. Miles treated O'Toole-Buck as a patient. During this period, he monitored and adjusted her coumadin levels. On September 18, 1988, O'Toole-Buck suffered a stroke and was hospitalized.

On October 3, 1988, O'Toole-Buck informed Christopher Linden, M.D., a physician at the Ka'u emergency room, that she suffered the stroke because Dr. Miles prescribed her an inadequate dose of coumadin and failed to properly monitor her coumadin levels. She later testified at her deposition that by October 3, 1988, she believed that she "had a stroke because [Dr. Miles] did not monitor the coumadin when he had decreased the dosage." O'Toole-Buck ultimately notified Dr. Miles's staff on October 5, 1988, that she no longer wanted Dr. Miles as her treating physician.

During the month following her stroke, O'Toole-Buck contacted the Law Offices of Ian L. Mattoch to inquire about bringing a claim against Dr. Miles. At her deposition, she testified that, at the time she contacted Mattoch, she believed that there was a claim against Dr. Miles.

Between November 1988 and February 1989, Mattoch obtained medical records relevant to O'Toole-Buck's case. He forwarded them to three health professionals, Sandra Ritz, R.N., Richard Littenberg, M.D., and Neal Benowitz, M.D. All three identified the causal connection between O'Toole-Buck's low coumadin levels and her September 18, 1988 stroke. They also opined, however, that a breach of a duty of care would be difficult to prove.

Prior to August 4, 1989, O'Toole-Buck sent a letter to Mattoch, criticizing nurse Ritz's conclusions about the likelihood of a successful negligence claim. In the letter, O'Toole-Buck stated that

Dr. Miles was negligent when he lowered my coumadin level. In my medical records please note that Dr. Matsuura gave me a much different prescription [.] My Dr. Lyndon (that is not a cardiologist) has managed to keep my level at a reasonable rate all this time[.] So I can't understand why Dr. Miles couldn't do it. He never could even remember my name or, why I was there [.] He was a negligent Dr. from the start, and never got better[.] If you should decide not to take this case, please send my records to me and a release. As I am determined to prove his negligence and mal-practice.

(Brackets added.) (Ellipses omitted.)

Thereafter, O'Toole-Buck underwent a series of examinations by three mental health professionals. James Tom Greene, Ph.D, a clinical psychologist, examined O'Toole-Buck on January 28, 1991 on behalf of the Social Security Disability Determination Branch.

                [89 Hawai'i 247] He concluded that O'Toole-Buck was "mentally incompetent to manage her affairs subsequent to the September 18, 1988 cerebrovascular accident."   Her mental incapacity, according to Dr. Greene, lasted through at least May 8, 1995, the date of his last examination
                

On October 15, 1991, Shepard Ginandes, M.D., a psychiatrist, examined O'Toole-Buck and determined that she was not competent to "negotiate or manage her business or legal affairs" since her stroke on September 18, 1988 through at least October 15, 1991, the date of his last examination. He further recommended that a legal guardian be appointed for O'Toole-Buck. On December 4, 1991, the Third Circuit Court appointed Gordon Buck as O'Toole-Buck's Guardian of the Property.

Robert Sbordone, Ph.D, a neuropsychologist, examined O'Toole-Buck on November 14, 1995. He concluded that O'Toole-Buck was mentally incompetent to manage her legal or business affairs from the time of her stroke in September 1988 through at least the time of his examination.

On December 17, 1991, Buck filed a medical malpractice claim against Dr. Miles with the Medical Claims Conciliation Panel (MCCP). The panel held a hearing on May 29, 1992 and rendered its decision in favor of O'Toole-Buck on June 19, 1992. On August 19, 1992, Buck filed this action in the Third Circuit Court.

On June 26, 1995, Dr. Miles filed a renewed motion for summary judgment, arguing that the suit had not been filed within the two-year statute of limitations period set forth in HRS § 657-7.3. Buck opposed the renewed motion for summary judgment, arguing that, under HRS § 657-7.3, and consistent with Hawai'i Rules of Civil Procedure (HRCP) Rule 11, an expert opinion is required before the statute of limitations period under HRS § 657-7.3 begins to run. Buck maintained that O'Toole-Buck had only subjective knowledge of a possible malpractice claim, which is insufficient to trigger the commencement of the statute of limitations. Buck further claimed that the limitation period under HRS § 657-7.3 was tolled due to O'Toole-Buck's mental incapacity, pursuant to HRS § 657-13(2).

A hearing on the motion was held on August 14, 1996, following which the circuit court granted Dr. Miles's motion for summary judgment. On September 16, 1996, the circuit court filed its findings of fact, conclusions of law, and order granting the defendant's renewed motion for summary judgment, which read, in pertinent part, as follows:

CONCLUSIONS OF LAW

...

23. Plaintiffs argued that the statute of limitations does not begin to run in a medical malpractice action if, although exercising reasonable diligence, they are unable to obtain an expert opinion stating that the standard of care has been breached. In support of this argument, Plaintiffs claimed that Rule 11 of the Hawai'i Rules of Civil Procedure prevented them from filing a lawsuit prior to obtaining an expert opinion stating that the standard of care had been breached. While the court recognizes that Rule 11 may create a paradox in some circumstances, it is clear from the language of the statute and from the Hawai'i Supreme Court's language in Yamaguchi that the statute of limitations is triggered by plaintiff's knowledge, not by [her] counsel's investigation. Moreover, any paradox is mitigated by the fact that Plaintiffs could have filed a claim with MCCP without being subjected to the requirements of Rule 11. Indeed, the MCCP panels "undoubtedly were established 'to encourage early settlement of claims and to weed out unmeritorious claims.' " Tobosa v. Owens, 69 Haw. 305, 312, 741 P.2d 1280, 1285 (1987) (quoting HSCR No. 417, in 1976 House Journal, at 1460).

24. Plaintiffs argued that the statute of limitations was tolled pursuant to HRS § 657-13 because Ms. O'Toole-Buck was insane. However, the claim that Ms. O'Toole-Buck was insane is an after the fact attempt to avoid the time bar under HRS § 657-3. The undisputed activities of Ms. O'Toole-Buck amply demonstrate that she was capable of understanding that she had a claim against Defendants and capable of pursuing the claim. Moreover, Mr. Mattoch's failure to file the MCCP claim until December 17, 1991 had nothing to do with Ms. O'Toole-Buck being "insane," but rather, as Mr. Mattoch testified at his deposition, was the result of Mr. Mattoch's belief that he could not file a claim until he received a favorable expert opinion on the issue of breach of the standard of care and that the statute of limitations would not commence running until he obtained such opinion.

25. Ms. O'Toole-Buck was competent to pursue her claim and, therefore, the statute of limitations was not tolled under HRS § 657-13.

...

27. The statute of limitations began to run against the claim brought on Ms. O'Toole-Buck's behalf on October 5, 1988 and expired on ...