Bynum v. Magno

• Decision Date: 13 December 2000
• Docket Number: No. CV 99-00927 DAE.,CV 99-00927 DAE.
• Citation: 125 F.Supp.2d 1249
• Court: U.S. District Court — District of Hawaii
• Parties: Joseph BYNUM and Lila Bynum, Plaintiffs, v. Joana H. MAGNO, M.D.; Michael H. Dang, M.D.; John P. Callan, M.D.; The Queens Medical Center, Defendants.

125 F.Supp.2d 1249

Joseph BYNUM and Lila Bynum, Plaintiffs, v. Joana H. MAGNO, M.D.; Michael H. Dang, M.D.; John P. Callan, M.D.; The Queens Medical Center, Defendants.

No. CV 99-00927 DAE.

United States District Court, D. Hawaii.

December 13, 2000.

COPYRIGHT MATERIAL OMITTED

David J. Dezzani, Lisa A. Bail, Goodsill Anderson Quinn & Stifel, Honolulu, HI, for Plaintiff.

Howard F. McPheeters, Burke Sakai McPheeters Bordner, Iwanaga & Estes, William S. Hunt, Ellen Godbey Carson, Alston Hunt Floyd & Ing, George W. Playdon, Jr., Reinwald O'Connor & Playdon, Peter C.P. Char, Char Hamilton Campbell & Thom, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

EZRA, Chief Judge.

The court heard Defendants' Motions on December 4, 2000. David J. Dezzani, Esq., Thomas Benedict, Esq., and Anne T. Horuichi, Esq., appeared at the hearing or on the briefs on behalf of Plaintiffs. Howard F. McPheeters, Esq., appeared at the hearing on behalf of Defendant Joana H. Magno, M.D.; William S. Hunt, Esq., appeared at the hearing on behalf of Defendant Michael H. Dang, M.D.; George W. Playdon, Jr., Esq., appeared at the hearing on behalf of Defendant John P. Callan, M.D.; Peter C.P. Char, Esq., appeared at the hearing on behalf of Defendant Queens Medical Center. After reviewing the Motions and the supporting and opposing memoranda, the court GRANTS IN PART AND DENIES IN PART Defendants' Motions for Summary Judgment.

BACKGROUND

While vacationing on the Big Island on July 13, 1998, Plaintiff Joseph Bynum ("Plaintiff") suffered chest pain and difficulty breathing. He went to the emergency room at North Hawaii Community Hospital, where doctors decided he should be transferred to Queen's Medical Center in Honolulu because of the appearance of unstable angina. Plaintiff, age 79 at the time, also had a history of chronic obstructive pulmonary disease (COPD).

At Queen's, Plaintiff came under the care of Defendant Dr. Joana Magno, ("Dr.Magno"), a cardiologist. Dr. Magno performed a cardiac catheterization, a medical procedure, also known as coronary angiography, used to evaluate the condition of the arteries and which aids in determining the best course of treatment. Based on the results of this procedure, Dr. Magno recommended that Plaintiff undergo coronary artery bypass grafting (CABG) surgery. The surgery was performed by Defendant Dr. Michael Dang ("Dr.Dang"), a cardiovascular surgeon, who obtained Plaintiff's signature on an informed consent form. In addition, Dr. Magno sought the assistance of Defendant Dr. John Callan ("Dr.Callan"), a pulmonologist, because of Plaintiff's history of COPD.

A few weeks after the surgery, Plaintiff began experiencing increased respiratory difficulty. In August, Dr. Dang performed a tracheostomy. Since then, Plaintiff has been ventilator-dependant, and has resided at various chronic care facilities in Southern California. Plaintiffs (Mr. Bynum and his former wife) claim that Mr. Bynum's ventilator dependance resulted from injury to his phrenic nerve during the CABG surgery.

Plaintiff brought suit on December 30, 1999, against Drs. Magno, Dang, and Callan and the Queen's Medical Center alleging medical negligence. Plaintiff's former wife¹ also joined the suit, claiming loss of consortium and emotional distress. This court has jurisdiction over this state law cause of action pursuant to 28 U.S.C. § 1332 (diversity of citizenship) because the Plaintiffs are citizens of California, the Defendants are citizens of Hawaii, and the amount in controversy exceeds $75,000.

All Defendants now move for summary judgment. Dr. Magno filed her motion on August 25, 2000; Plaintiffs filed their opposition on November 16, 2000; Dr. Magno replied on November 22, 2000. Dr. Dang filed his motion on August 21, 2000; Plaintiffs filed their opposition on November 16, 2000; Dr. Dang replied on November 22, 2000. Dr. Callan filed his motion on August 17, 2000; Plaintiffs filed their opposition on November 16, 2000; Dr. Callan replied on November 22, 2000. Queen's Medical Center filed its motion on September 27, 2000; Plaintiffs filed their opposition on November 16, 2000; Queen's Medical Center replied on November 22, 2000.

STANDARD OF REVIEW

Rule 56(c) provides that summary judgment shall be entered when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). The moving party has the initial burden of demonstrating for the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). However, the moving party need not produce evidence negating the existence of an element for which the opposing party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548.

Once the movant has met its burden, the opposing party has the affirmative burden of coming forward with specific facts evidencing a need for trial. Fed.R.Civ.P. 56(e). The opposing party cannot stand on its pleadings, nor simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987); Fed.R.Civ.P. 56(e). There is no genuine issue of fact "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

A material fact is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. Id. The evidence submitted by the nonmovant, in opposition to a motion for summary judgment, "is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must bear in mind the actual quantum and quality of proof necessary to support liability under the applicable law. Id. at 254, 106 S.Ct. 2505. The court must assess the adequacy of the nonmovant's response and must determine whether the showing the nonmovant asserts it will make at trial would be sufficient to carry its burden of proof. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

At the summary judgment stage, this court may not make credibility determinations or weigh conflicting evidence. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir.1990). The standard for determining a motion for summary judgment is the same standard used to determine a motion for directed verdict: does the evidence present a sufficient disagreement to require submission to a jury or is it so one-sided that one party must prevail as a matter of law. Id. (citation omitted).

DISCUSSION

I. Defendant Dr. Joana Magno's Motion for Summary Judgment

Plaintiffs' claims against Dr. Magno relate to her involvement in the CABG procedure.² See Complaint; Plaintiff Lila Bynum's Answers to Defendant Joana Magno, M.D.'s First Request for Answers to Interrogatories (April 25, 2000), p. 6 [hereinafter "Answers to Magno's Interrogatories"]. Specifically, Plaintiffs allege that Dr. Magno was negligent in recommending the CABG surgery because (1) indicators were not present that such surgery was necessary, and (2) she did not give appropriate consideration to alternatives, especially considering Plaintiff's history of COPD. Plaintiffs also allege that Dr. Magno was negligent in obtaining Plaintiffs' informed consent for the surgery because (1) she did not provide Plaintiffs with adequate information to obtain their informed consent, (2) she obtained the informed consent under inappropriate circumstances, and (3) she obtained the consent prior to Plaintiffs evaluation by the pulmonary specialist, Dr. Callan. See Answers to Magno's Interrogatories.

Dr. Magno now moves for summary judgment on all these claims, under a variety of theories. The court will address each theory she raises in her Motion.

A. Claims Based on Informed Consent

1. The duty to obtain informed consent runs only to Joseph Bynum and not to Lila Bynum.

Dr. Magno first argues that any claim based on lack of Mrs. Bynum's informed consent must fail as a matter of law because the duty runs only to the patient and not to the spouse. Plaintiffs respond that, according to the Agency for Health Care Policy and Research, doctors should keep the patient's family informed of the diagnosis and treatment strategies.

The only Hawaii case specifically on point is Nishi v. Hartwell, which held that the duty of informed consent runs only between doctor and patient, and not between doctor and patient's family. 52 Haw. 188, 52 Haw. 296, 473 P.2d 116 (1970) overruled on other grounds by Carr v. Strode, 79 Hawai`i 475, 904 P.2d 489 (1995); see also Turpie v. Southwest Cardiology Associates, 124 N.M. 787, 955 P.2d 716 (1998) (also holding that duty does not extend beyond the patient). But see Safer v. Estate of Pack, 291 N.J.Super. 619, 677 A.2d 1188 (1996) (finding that duty may run to patient's family members who may be adversely affected by the breach of duty). Based on this Hawaii rule, the court must conclude that Lila Bynum cannot sustain an informed consent claim against Dr. Magno. The Agency for Health Care Policy and Research merely provides guidelines for doctors; it does not establish a legal rule. Accordingly, Dr. Magno's Motion for Summary Judgment on this ground is GRANTED. Lila Bynum...