79 Hawai'i 475, Carr v. Strode

• Citation: 79 Hawaii 475,904 P.2d 489
• Decision Date: 05 October 1995
• Docket Number: No. 16079,16079
• Court: Supreme Court of Hawai'i
• Parties: 79 Hawai'i 475 Robin CARR, Individually and as Prochein Ami of Ellen R. Carr, a minor child, and Donna Sorrell, Plaintiffs-Appellants/Cross-Appellees, v. Walter S. STRODE, Straub Clinic & Hospital, Inc., Defendants-Appellees/Cross-Appellants, and John Does 1-10, Jane Does 1-10, and Doe Entities 1-10, Defendants.

Page 489

904 P.2d 489

79 Hawai'i 475

Robin CARR, Individually and as Prochein Ami of Ellen R Carr, a minor child, and Donna Sorrell Plaintiffs-Appellants/Cross-Appellees, v. Walter S. STRODE, Straub Clinic & Hospital, Inc. Defendants-Appellees/Cross-Appellants and John Does 1-10, Jane Does 1-10, and Doe Entities 1-10, Defendants.

No. 16079.

Supreme Court of Hawai'i.

Oct. 5, 1995.

Leslie S. Fukumoto, Honolulu, for plaintiffs-appellants/cross-appellees.

William A. Bordner (J. Gerard Lam, with him on the briefs, of Burke, Sakai, McPheeters & Bordner), Honolulu, for defendants-appellees/cross-appellants.

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

MOON, Chief Justice.

This case concerns a failed vasectomy ¹ operation that resulted in the unplanned birth of a healthy child. Plaintiffs-appellants/cross-appellees Robin R. Carr (Carr), individually and as prochein ami of Ellen R. Carr (Ellen), and Donna Sorrell (Sorrell) (collectively, plaintiffs) claim, inter alia, that defendants-appellees/cross-appellants Walter S. Strode, M.D. (Dr. Strode) and Straub Clinic & Hospital, Inc. (Straub) (collectively, defendants) failed to obtain Carr's informed consent to perform the vasectomy operation.

Although the jury returned a verdict in favor of plaintiffs on the informed consent claim, judgment was entered in favor of defendants pursuant to the trial court's grant of defendants' motion for a judgment notwithstanding the verdict (JNOV). The trial court also conditionally granted defendants' alternative motion for new trial, ruling that, if the judgment entered in their favor was vacated or reversed on appeal, defendants would be entitled to a new trial.

Plaintiffs now appeal from the judgment in favor of defendants and the trial court's conditional grant of a new trial. Defendants cross-appeal from various pretrial rulings on summary judgment motions and motions in limine as well as the trial court's giving of plaintiffs' instruction no. 11.

For the reasons discussed below, we: (1) affirm the (a) order denying defendants' motion for summary judgment, or, in the alternative, for partial summary judgment, (b) order denying defendants' various motions in limine, and (c) court's giving of plaintiffs' instruction no. 11; and (2) reverse the (a) judgment in favor of defendants, (b) conditional grant of a new trial, (c) order granting plaintiffs' motion for partial summary judgment, and (d) order denying defendants' motion for reconsideration. Accordingly, we remand this case for a new trial on the issue of informed consent.

I. BACKGROUND

A. Facts

Carr and Sorrell are married, and, at the time of Carr's vasectomy, resided in Hawai'i. ² During Sorrell's pregnancy with their second child, Carr and Sorrell decided not to have any more children because of financial and educational concerns. After she gave birth to her second child, Sorrell planned to have a tubal ligation. ³ However, because his wife had just endured nine months of pregnancy and had difficulty scheduling the tubal ligation operation, Carr volunteered to undergo the vasectomy surgery.

In November 1985, Carr had his first vasectomy consultation with Dr. Strode, a Straub employee. On December 5, 1985, Carr, accompanied by Sorrell, had a second vasectomy consultation with Dr. Strode. Dr. Strode performed the vasectomy operation on December 9, 1985, and subsequently saw Carr on December 12, 1985 for a follow-up examination. On January 13, 1986, Straub informed Carr that, because no live sperm had been found in the sperm sample analysis taken after the vasectomy, he was sterile.

In April 1986, Sorrell discovered that she was pregnant. On April 26, 1986, Carr gave Dr. Strode another sperm sample, which, upon analysis, revealed 340,000 dead sperm. At trial, Dr. Strode admitted that dead sperm could indicate that Carr was producing live sperm. On April 30, 1986, Carr submitted a second sperm sample which contained 21 sperm, six of which were live. Although Dr. Strode offered to perform a second vasectomy at no charge to Carr, Carr rejected this offer because he believed that Dr. Strode had performed the first vasectomy incorrectly.

On November 10, 1986, Carr met with Robert Lewis Simich, M.D. (Dr. Simich) to discuss a second vasectomy. However, Carr was uncertain about undergoing the second procedure because Sorrell had scheduled a tubal ligation to be performed immediately after the impending birth of their third child. Sorrell gave birth to Ellen on November 27, 1986, but no doctors were available to perform the scheduled tubal ligation because of the Thanksgiving holiday. Thereafter, because Sorrell was unable to arrange for a tubal ligation due to her work schedule, Carr decided to have the second vasectomy operation, which Dr. Simich performed on December 26, 1986.

B. Prior Proceedings

On June 28, 1988, plaintiffs filed a five-count complaint against defendants, alleging: (1) general negligence and/or malpractice; (2) breach of warranty; (3) lack of informed consent; (4) negligent misrepresentation; and (5) permanent disruption of plaintiffs' marital relationship.

In August 1989, the circuit court entered an order granting defendants' motion for partial summary judgment, disposing of count I of the plaintiffs' complaint, relating to general negligence and/or medical malpractice. Subsequently, the circuit court denied defendants' motion for partial summary judgment, wherein they sought a ruling that child-rearing costs were not recoverable under plaintiffs' claim for wrongful pregnancy.

Plaintiffs then filed a motion for partial summary judgment limited to a factual finding that Dr. Strode failed to inform plaintiffs of either the risk of failure or the failure rate associated with a vasectomy. Although the circuit court declined to rule that defendants had breached any duty to plaintiffs, it found as a factual matter that Dr. Strode had "failed to specifically state to plaintiff Robin Carr that the vasectomy procedure might fail and if such failure were to occur that it would or could cause the plaintiff to remain fertile or become fertile again in the future." The circuit court, however, expressly did not otherwise limit "any party's right to offer testimony concerning information provided to Carr prior to the [vasectomy] or the surrounding circumstances thereto."

Defendants moved for reconsideration of the circuit court's order, arguing that the court had improperly made a factual finding on a motion for partial summary judgment. The circuit court denied defendants' motion.

Prior to the December 1991 trial date, defendants filed several motions in limine to preclude or limit plaintiffs from introducing evidence of child-rearing costs and to prevent Sorrell from signing, correcting, or changing the transcript of her deposition taken in August 1991. The trial court denied these motions.

Jury trial commenced on December 9, 1991. During the trial, the trial court entered an order granting defendants' motion for a directed verdict on the breach of warranty claim, disposing of count II of plaintiffs' complaint, and denying all oral motions for directed verdicts made in open court on the remaining claims.

On December 17, 1991, the jury returned a verdict in favor of plaintiffs, awarding them $75,000.00 in general damages on count III (lack of informed consent) only. Judgment was entered accordingly.

Post trial, defendants filed a motion for a JNOV, or, in the alternative, for a new trial. After a hearing on the matter, the trial court granted defendants' motion for a JNOV because the jury instructions had stated that "the plaintiff must prove liability and legal cause based on medical expert evidence," noting that it had heard "no medical evidence presented by the plaintiff Robin Carr at all."

In addition, the trial court alternatively granted defendants' motion for a new trial "based upon differences or irreconcilable differences" in the jury's answers on the special verdict form. The trial court again noted that "there [was] no medical evidence submitted by the plaintiff, one way or the other, to prove his theory plus tie it in as a legal cause for the injuries suffered by the plaintiff." Following the trial court's entry of its written order, these timely appeals were filed.

II. DISCUSSION

A. Plaintiffs' Appeal

As previously indicated, the trial court granted defendants' motion for a JNOV because plaintiffs presented "no medical evidence ... at all." We thus first consider whether Hawai'i's informed consent doctrine requires a plaintiff to provide expert medical evidence in support of a claim for a physician's failure to disclose the risks of harm prior to treatment.

1. Hawai'i's Doctrine of Informed Consent and the Expert Medical Testimony Requirement

In Nishi v. Hartwell, 52 Haw. 188, 191, 473 P.2d 116, 119 (1970), this court acknowledged a common law cause of action for a physician's negligent failure "to disclose to [his or her] patient all relevant information concerning a proposed treatment, including the collateral hazards attendant thereto." In Nishi, the plaintiff (Nishi), sought to recover damages for injuries he suffered that allegedly resulted from his undergoing a thoracic aortography, a diagnostic surgical procedure used to detect aneurysms. The procedure was recommended and performed by the defendant-physicians.

In Nishi, we initially noted that: (1) the complaint framed the action as one sounding in battery, for the defendants' unlawful touching of Nishi without his consent; (2) battery, however, was inapplicable to the case because Nishi had consented to defendants' touching; and (3) pursuant to Hawai'i Rules of Civil Procedure Rule 15(b), because the right of a plaintiff to relief does not depend on his or her allegations or his or her theory of the case, we treated the action as one sounding in negligence, explicitly recognizing and...