87 Hawai'i 460, Hirahara v. Tanaka
| Decision Date | 09 June 1998 |
| Docket Number | No. 20429,20429 |
| Citation | 959 P.2d 830,87 Hawaii 460 |
| Parties | 87 Hawai'i 460 Gayle N. HIRAHARA, as Prochein Ami for Laurie M. Hirahara, Bradley S. Hirahara, and Lisa S. Hirahara, Minors; Myles M. Hirahara; Shizue Hirahara; and Shirlyn H. Young as Personal Representative of the Estate of Harvey S. Hirahara, Deceased, Plaintiffs-Appellants, v. Kazushi TANAKA, M.D., Defendant-Appellee, and Island Anesthesia, Inc.; John W. Pearson, M.D.; Castle Medical Center, John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe "Non-profit" Organizations 1-10; and Roe Governmental Agencies 1-10, Defendants. |
| Court | Hawaii Supreme Court |
L. Richard Fried, Jr.,John D. Thomas, Jr., and Patrick F. McTernan (of Cronin, Fried, Sekiya, Kekina & Fairbanks), Honolulu, for plaintiffs-appellants.
John S. Nishimoto, Stephen D.Dyer, and Gary S. Miyamoto (of Ayabe, Chong, Nishimoto, Sia & Nakamura), Honolulu, for defendant-appellee.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
Plaintiffs-appellants Gayle Hirahara, et al. [collectively Hiraharas], appeal from an adverse judgment after jury trial in their medical malpractice action. The sole issue raised by the Hiraharas is whether the trial court erred by instructing the jury that a treating physician is not necessarily negligent for "errors in judgment." The Hawai'i appellate courts have not previously addressed this issue. We perceive a clear modern trend disfavoring this language as confusing and misleading. Because cogent reasons support disallowing this language, we hold that the trial court erred when it gave such an instruction in the instant case. Therefore, we vacate the judgment in favor of defendant-appellee Kazushi Tanaka, M.D. and remand for further proceedings.
On August 8, 1994, Harvey Hirahara was referred to Kazushi Tanaka, M.D., for treatment of a rectal abscess. Dr. Tanaka determined that immediate surgery was necessary to drain the abscess. The proposed surgical procedure is normally routine and uncomplicated. Dr. Tanaka expected to complete the surgery within ten to fifteen minutes.
Dr. Tanaka was assisted in the surgery by John W. Pearson, M.D., an anesthesiologist. Harvey was positioned in a jackknife position, with his head and feet below his raised buttocks. Dr. Pearson injected Harvey with the anesthetic at 1:15 p.m. Dr. Pearson mistakenly prepared a hyperbaric anesthetic, with a specific gravity heavier than the spinal fluid. 1 Because of Dr. Pearson's error, and the fact that Harvey's head was below the level of the injection site, the anesthetic flowed downwards to Harvey's brain.
Dr. Pearson was situated close to Harvey's head while Dr. Tanaka performed the surgery. A device known as a pulse oximeter, which measures the amount of oxygen in a patient's blood, was attached to Harvey. This device has an audible alarm that sounds if the oxygen level drops to 85% saturation. The pulse oximeter alarm first rang at approximately 1:26 p.m. Harvey was conscious at this point and, when Dr. Pearson addressed him, was able to take a breath which improved his blood oxygenation. It is unclear whether the surgery had started or not at this point. However, after Dr. Tanaka began the surgery, the pulse oximeter alarm sounded again. Harvey was unresponsive. Dr. Pearson began mask-ventilating Harvey in an attempt to improve his blood oxygenation. Dr. Tanaka asked Dr. Pearson if there was something wrong and if he should stop the operation. Dr. Pearson asked Dr. Tanaka how much longer the operation would take. Dr. Tanaka replied that it would only be a couple of minutes. It is unclear from the record if there was a further response from Dr. Pearson. Dr. Tanaka then completed the operation.
Immediately after Dr. Tanaka finished the operation, Harvey was turned over onto his back and found to be in cardiac arrest. Attempts to resuscitate Harvey were unsuccessful and Harvey remained in a coma until August 12, 1994, when life support was terminated due to a lack of brain activity.
The Hiraharas filed a complaint in the Circuit Court of the First Circuit on March 15, 1995. The complaint alleged that defendants Dr. Tanaka, Dr. Pearson, Island Anesthesia, Inc., and Castle Medical Center were liable for medical malpractice in their treatment of Harvey. All defendants except Dr. Tanaka were dismissed with prejudice by stipulation on July 11, 1996. Jury trial proceeded against Dr. Tanaka. The plaintiff's theory of liability at trial was that Dr. Tanaka negligently failed to perceive the seriousness of Harvey's condition and terminate surgery in time to get Harvey out of the jackknife position and revive him before brain damage had become irreversible.
At trial, both the Hiraharas and Dr. Tanaka presented expert witness testimony. The expert witnesses were divided in their opinions as to whether Dr. Tanaka's performance fell below the relevant standard of care. Russell Carlson, M.D., opined that Dr. Tanaka's failure to recognize Harvey's deterioration quickly enough to avert his hypoxic brain damage fell below the standard of care. Peter Halford, M.D., opined that the anesthesiologist, not the surgeon, is responsible for monitoring the oxygen level and respiration and that it was reasonable for Dr. Tanaka to complete the surgery in the absence of an order by Dr. Pearson to discontinue.
Following closing arguments, the court instructed the jury. The following jury instructions, requested by Dr. Tanaka, were given over the Hiraharas' objections:
[Dr. Tanaka's Proposed Instruction No. 7, as modified] Where there is more than one recognized method of treatment, a physician is not negligent if, in exercising his best judgment, he utilizes one of the recognized methods of treatment so long as it conforms to the standard of care.
[Dr. Tanaka's Proposed Instruction No. 9, as modified] A physician is not necessarily negligent because he errs in judgment or because his efforts prove unsuccessful. The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties defined in these instructions.
[Hereinafter Instruction No. 7 or 9]. After deliberation, the jury found, by special verdict, that Dr. Tanaka was not negligent. On August 13, 1996, the circuit court entered judgment in favor of Dr. Tanaka. The Hiraharas timely appealed. On appeal, the Hiraharas argue that: (1) Instructions No. 7 and 9 were misleading and confusing and should not have been given to the jury and (2) even presuming that the instructions were not misleading or confusing, there was no basis in this trial to give such instructions. We need only address the Hiraharas' first point of error.
"When jury instructions, or the omission thereof, are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." Craft v. Peebles, 78 Hawai'i 287, 302, 893 P.2d 138, 153 (1995) (citations and internal quotation marks omitted).
As an initial matter, Dr. Tanaka alleges that the Hiraharas failed to properly object to the jury instructions pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 51(e). Although the Hiraharas did object to these instructions, Dr. Tanaka claims that the specific grounds for their objections were significantly different from the arguments which they now raise on appeal.
HRCP Rule 51(e) provides that "[n]o party may assign as error the giving or the refusal to give ... an instruction ... unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." A general objection is insufficient to satisfy the requirements of HRCP Rule 51(e). Murray v. Hicks, 49 Haw. 374, 376-77, 418 P.2d 12, 14 (1966). However, this court has previously stated that "HRCP Rule 51(e) may be construed in a liberal manner." Chung v. Kaonohi Center Co., 62 Haw. 594, 603, 618 P.2d 283, 291 (1980).
It is now firmly established in this jurisdiction that, where potential error "affects the integrity of the jury's findings[,][o]nce all the evidence has been presented, it becomes the court's fundamental duty to properly instruct the jury on the law on the precise issues of fact it is to decide." Montalvo v. Lapez, 77 Hawai'i 282, 291, 884 P.2d 345. 354, reconsideration denied, 77 Hawai'i 489, 889 P.2d 66 (1994) (footnote omitted). This is because
[t]he trial court is the sole source of all definitions and statements of law.... It is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and [the judge] shall state to [the jury] fully the law applicable to the facts.
Id. at 291 n. 13, 884 P.2d at 354 n. 13 (quoting Briones v. State, 74 Haw. 442, 472-73, 848 P.2d 966, 980 (1993) (Levinson, J., concurring) (citations omitted) (internal quotation marks omitted) (emphasis in original)).
"Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial." Tabieros v. Clark Equip. Co., 85 Hawai'i 336, 350, 944 P.2d 1279, 1293 (1997) (quoting State v. Arceo, 84 Hawai'i 1, 11, 928 P.2d 843, 853 (1996) (citations and internal quotation marks omitted)).
The Hiraharas objected to Instruction No. 7 on the basis that:
This instruction is not supported by the evidence in this case. This is not a case where the issue is a surgeon's choice between two recognized methods of treatment or alternative recognized methods of treatment. Here the physician did nothing in response to the decedent's condition; and, therefore, this instruction is inapplicable to the facts of the case.
In addition, your Honor, as phrased,...
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