Barcai v. Betwee

• Decision Date: 18 July 2002
• Docket Number: No. 21486.,21486.
• Citation: 50 P.3d 946,98 Haw. 470
• Parties: Lou Ann BARCAI, as the Administrator of the Estate of Francis L. Barcai; Lou Ann Barcai, on behalf of Kekoa Barcai, a minor, Kalei Barcai, a minor, Kanoe Barcai, a minor; Karen Gushiken; Richard Barcai; and Melvin Barcai, Plaintiffs-Appellants, v. Jon BETWEE, M.D., Defendant-Appellee.
• Court: Hawaii Supreme Court

50 P.3d 946

98 Haw. 470

Lou Ann BARCAI, as the Administrator of the Estate of Francis L. Barcai; Lou Ann Barcai, on behalf of Kekoa Barcai, a minor, Kalei Barcai, a minor, Kanoe Barcai, a minor; Karen Gushiken; Richard Barcai; and Melvin Barcai, Plaintiffs-Appellants, v. Jon BETWEE, M.D., Defendant-Appellee.

No. 21486.

Supreme Court of Hawai`i.

July 18, 2002.

Michael K. Tateishi, Shannon S. Okada, and Glen R. Pascual (of Tateishi & Associates); Steve Noufer (of Noufer & Brown), on the briefs, Wailuku, for plaintiffs-appellants.

Gary N. Hagerman, Hilo, and Paul K. Hamano, on the briefs, for defendant-appellee.

MOON, C.J., LEVINSON, and, NAKAYAMA, JJ.; ACOBA, J., concurring separately, with whom RAMIL, J., joins.

Opinion of the Court by MOON, C.J.

Following a jury trial in this medical malpractice case, plaintiffs-appellants Lou Ann Barcai, as Administrator of the Estate of Francis Barcai (Barcai); Lou Ann Barcai, on behalf of minors Kekoa Barcai, Kalei Barcai, and Kanoe Barcai; and Barcai's siblings Kanani Barcai, Karen Gushiken, Richard Barcai, and Melvin Barcai [hereinafter, collectively, Plaintiffs] appeal the March 9, 1998 judgment of the Second Circuit Court, the Honorable Shackley F. Raffetto presiding, in favor of defendant-appellee Jon Betwee, M.D. (Dr. Betwee). Plaintiffs contend that: (1) they were denied the right to a fair and impartial jury because they conducted jury selection in reliance upon the trial court's ruling on a motion in limine that it reversed after the jury was impaneled; (2) the trial court erred by excluding testimony of their expert witness allegedly constituting a "new opinion" that was not disclosed during discovery; and (3) the trial court erred by refusing to instruct the jury on their claim that Dr. Betwee negligently failed to obtain Barcai's informed consent before treating him with antipsychotic medication. For the reasons discussed herein, we reject the first two points of error, but vacate the judgment in part with respect to the third point of error and remand this case to the trial court for further proceedings.

I. INTRODUCTION

On June 11, 1990, Barcai, then 45 years old, presented to the emergency department of the Maui Memorial Hospital (MMH) in a psychotic state. Barcai had apparently been violent, was having auditory hallucinations, and arrived via ambulance in restraints. Barcai received four doses of haloperidol, an antipsychotic medication, that was ordered by the emergency room physician. Thereafter, Barcai became calmer and consented to a voluntary admission to the psychiatric unit.

Dr. Betwee, a psychiatrist, assumed care of Barcai and saw him the following day on June 12, 1990. At approximately noon that day, Barcai became mute, appeared stiff and unresponsive, and had an unusual heart murmur. Shortly thereafter, Barcai became alert, was walking around, and his heart murmur had resolved. Concerned that Barcai had an undiagnosed medical problem, Dr. Betwee arranged for Barcai to be transferred to the medical ward under the care of Marconi Dioso, M.D. (Dr. Dioso), an internist. Barcai's appearance improved dramatically over the course of the following day, and, after further diagnostic tests and medical evaluation failed to reveal any additional medical problem, Barcai was transferred back to the psychiatric ward on the afternoon of June 13, 1990. Dr. Dioso's assessment of Barcai's unusual appearance was that Barcai had suffered an "extrapyramidal" reaction from the antipsychotic medication that was administered in the emergency department. Extrapyramidal reactions, of which there are several types, are a generally non life-threatening and treatable side effect of antipsychotic (also referred to as "neuroleptic") medications. See generally Attorney's Textbook of Medicine § 106.25 (3rd ed.2001).

While Barcai was on the medical ward, Dr. Dioso also consulted with Paul Kershaw, M.D. (Dr. Kershaw), a neurologist. On June 13, Dr. Kershaw entered a short handwritten note in the medical record also indicating his assessment that Barcai had an suffered from an extrapyramidal reaction. He dictated a more substantial consultation report that was later typewritten and placed in the record, which also stated that Barcai's symptoms were "somewhat suggestive of neuroleptic malignant syndrome. These symptoms have resolved with withdrawal of neuroleptic medication." Neuroleptic malignant syndrome (NMS), discussed in more detail infra, is a relatively rare but potentially serious complication of antipsychotic medication that at the time of Barcai's hospitalization, was thought to be fatal in approximately four to twenty nine percent of cases. See Gerard Addonizio and Virginia Lehmann Susman, Neuroleptic Malignant Syndrome: A Clinical Approach 7-8, 87-88 (1991).¹ Early recognition of NMS and discontinuation of the offending antipsychotic medication is critical; in general, it is thought that the earlier the signs and symptoms of NMS are recognized and the offending medication is stopped, the better the patient's chances for survival. See id. at 52.

After returning to the psychiatric ward on June 13, Barcai initially appeared alert, but he soon began having symptoms of panic and anxiety. Gradually over the next several days, his behavior deteriorated. After unsuccessfully attempting to ameliorate Barcai's symptoms with other types of medications, Dr. Betwee prescribed Stelazine, an antipsychotic medication, on June 19, 1990. Over the next eight days, Barcai's condition appeared to improve at times, but at other times, he appeared worse; further details are discussed infra. Early in the morning on June 27, 1990, Barcai was found dead. The pathologist who performed the autopsy was unable to identify the cause of Barcai's death.

On December 16, 1992, Plaintiffs filed a complaint against Dr. Betwee and MMH that was subsequently amended and clarified to allege: (1) medical negligence, for the failure to diagnose and treat NMS after antipsychotic medication was restarted on June 19, 1990, which Plaintiffs claim was the cause of Barcai's death; (2) false imprisonment, for confining Barcai to the hospital and placing him in seclusion within the hospital; (3) battery, for restraining Barcai and administering medications to him without his consent; (4) negligent infliction of emotional distress (NIED); and (5) negligent failure to obtain informed consent before treating Barcai with antipsychotic medication. Plaintiffs sought special and general damages for Barcai's pain, suffering and emotional distress, the emotional distress and loss of companionship, support and affection of Barcai's minor children, and the emotional distress of Barcai's siblings. Before trial, the trial court granted MMH's motion for summary judgment on some of Plaintiff's claims; the remainder of the claims against MMH were dismissed upon stipulation of the parties. Thus, the trial proceeded as to Dr. Betwee, the only remaining defendant.

Prior to trial, Plaintiffs brought a motion in limine to exclude evidence of Barcai's history of violence and a previous psychiatric hospitalization. The trial court granted the motion at a hearing that was held prior to jury selection. Upon reconsideration the following day — after the jury was impaneled — the trial court reversed its ruling.

Prior to trial, the defense also sought to exclude testimony concerning purported "new opinions" offered by Plaintiffs' expert witness that the expert had not expressed earlier in his deposition. The trial court granted the defense's motion in limine.

Trial commenced on October 6, 1997, and concluded on October 31, 1997 with the jury finding in favor of Dr. Betwee; final judgment was entered on March 9, 1998, and Plaintiffs timely appealed. Additional background facts are presented as appropriate in the discussion that follows.

II. DISCUSSION

A. The Trial Court's Reversal of its Ruling Concerning Barcai's Prior Acts and Barcai's Right to a Fair and Impartial Jury

1. Background facts

As previously stated, Plaintiffs filed a motion in limine, seeking to exclude evidence of Barcai's prior violent acts. Specifically, Plaintiffs sought to exclude Barcai's history of violence related to, inter alia: (1) domestic violence involving his wife, Lou Ann Barcai, as well as his first wife; (2) a fight with his brother Melvin Barcai and a police officer; (3) a terroristic threatening charge involving his sister, Karen Gushiken; and (4) a terroristic threatening and assault conviction arising from an incident that occurred on December 11, 1988. Plaintiffs also filed a separate motion in limine to exclude any reference to Barcai's hospitalization at the Hawai`i State Hospital in 1989.

The court held a hearing on Plaintiffs' motions on October 6, 1997, prior to jury selection. During argument on Plaintiffs' motion to exclude evidence of past violence, the court asked, "Isn't anything that the doctor knows about the behavior of a psychiatric patient relevant to what [the doctor] does?" Plaintiffs responded that Dr. Betwee had not based his treatment decisions on Barcai's past behaviors. Defense counsel conceded that Dr. Betwee's medication decisions were not based on Barcai's past behaviors, but pointed out that Dr. Betwee's knowledge of Barcai's past behaviors had an impact on his decision to order restraint and seclusion. The defense argued that Barcai's predilection to violence was, therefore, relevant to Plaintiffs' claims of false imprisonment and battery. In response, Plaintiffs offered to dismiss these claims with prejudice. Based primarily on this offer, the court ruled that Barcai's history of violence would not be admissible.

Following the hearing on these and other motions in limine, the parties proceeded to jury selection, and the jury was sworn in later that afternoon. Opening statements were scheduled for the following morning.

The next day, the parties met before opening statements to review issues concerning the ...