Domingo by and through Domingo v. Doe

• Decision Date: 12 December 1997
• Docket Number: No. CIV. 96-00679 DAE.,CIV. 96-00679 DAE.
• Citation: 985 F.Supp. 1241
• Court: Hawaii Supreme Court
• Parties: Efren B. DOMINGO, By and Through his wife and Conservator, Naomi DOMINGO, and Naomi Domingo, individually, and the mother and next friend of Alden Scott Domingo, a minor and of Nayren Denese Domingo, a minor, Plaintiffs, v. Dr. John DOE<SMALL><SUP>1</SUP></SMALL>; Orthopedic Associates of Hawai`i, Inc.; The Queen's Medical Center; John Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Limited Partnerships 1-10; Doe Entities 1-10; Unincorporated Does 1-10, Defendants.

985 F.Supp. 1241

Efren B. DOMINGO, By and Through his wife and Conservator, Naomi DOMINGO, and Naomi Domingo, individually, and the mother and next friend of Alden Scott Domingo, a minor and of Nayren Denese Domingo, a minor, Plaintiffs, v. Dr. John DOE¹; Orthopedic Associates of Hawai`i, Inc.; The Queen's Medical Center; John Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Limited Partnerships 1-10; Doe Entities 1-10; Unincorporated Does 1-10, Defendants.

No. CIV. 96-00679 DAE.

United States District Court, D. Hawai`i.

December 12, 1997.

Wesley D. Shimazu, Edmunds & Verga, Honolulu, HI, Edward K. Placek, Jr., Honolulu, HI, John S. Edmunds, Edmunds Maki Verga & Thorn, Honolulu, HI, for Efren B. Domingo, Naomi Domingo, Alden Scott Domingo, Nayren Denese Domingo.

Patricia C. Aburano, Diana M. Allen, Burke Sakai McPheeters & Bordner, Honolulu, HI, Edmund Burke, Burke Sakai McPheeters, Bordner Iwanaga & Estes, Honolulu, for Thomas J. Kane, III, M.D.

Lee T. Nakamura, Danielle N. Degele-Mathews, Fujiyama Duffy & Fujiyama, Honolulu, HI, for Orthopedic Associates of Hawai`i, Inc.

George B. Apter, Brian Yukio Hiyane, Watanabe Ing & Kawashima, Honolulu, HI, for Queen's Medical Center.

ORDER GRANTING DEFENDANT QUEEN'S MEDICAL CENTER'S MOTION FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

The court heard Defendant's Motion on November 17, 1997. John S. Edmunds, Esq., appeared at the hearing on behalf of Plaintiffs; Edmund C. Burke, Esq., appeared at the hearing on behalf of Defendant Dr. John Doe; Lee T. Nakamura, Esq., appeared at the hearing on behalf of Defendant Orthopedic Associates; James Kawashima, Esq., appeared at the hearing on behalf of Defendant Queen's Medical Center. After reviewing the motion and the supporting and opposing memoranda, the court GRANTS Defendant Queen's Medical Center's Motion for Summary Judgment.

BACKGROUND

Defendant Dr. John Doe ("Dr.Doe") graduated from the University of California at Davis Medical School in 1977. He began his general surgery residency at UC Davis Sacramento Medical Center in July of 1978. Dr. Doe withdrew from the residency program in June of 1981 because of alcohol and drug related problems.

After withdrawing from the residency program, Dr. Doe entered a 30-day in-patient treatment program at Las Encinas Hospital in Pasadena. In his deposition, Dr. Doe states that he entered the treatment program after receiving two tickets for driving while under the influence of alcohol. Deposition of Dr. Doe, p. 38.

In June of 1984, Dr. Doe was accepted into the orthopedic surgery residency program at the University of Hawaii Burns Medical School. In November of 1984, Dr. Doe entered a 30-day treatment program at Castle Medical Center, after suffering an alcohol relapse. Dr. Doe was terminated from the residency program in December of 1984 as a result of this alcohol relapse. Id. at 147.

On January 7, 1985, Dr. Doe was admitted to the emergency room at Queen's Medical Center. At that time, he was diagnosed with acute alcoholic hepatitis, adult respiratory distress, and renal failure. Id. at 153. After the January 7 incident, Dr. Doe sought help from Alcoholics Anonymous. Dr. Doe asserts that he has been drug free since his arrival in Hawaii in 1984 and alcohol free since his release from the hospital in January of 1985.

In January of 1986, Dr. Doe was admitted to the general surgery residency program at the University of Hawaii Burns Medical School. As a condition of enrollment in the program, Dr. Doe agreed to undergo random drug testing. Dr. Doe was randomly drug tested on six separate occasions with negative results.

In July of 1987, Dr. Doe was admitted into the orthopedic surgery residency program at the University of Hawaii. Dr. Doe completed his residency in June of 1991.

Dr. Doe was hired by Defendant Orthopedic Associates of Hawaii ("Associates") in September of 1992.² At the time Associates hired Dr. Doe, Associates was aware that Dr. Doe had a history of drug and alcohol abuse "which nearly terminated his medical career in the early 1980's." See Credentialing File, p. 53, attached as Exhibit "BB" to Plaintiffs' Appendix. As a result of Associates' "ongoing concern with Dr. Doe's previous condition," Associates instituted "a surveillance program with unannounced urine testing for the foreseeable future." Id. Dr. Doe was subjected to seven or eight random drug tests from 1992 to 1994. All drug tests were negative. Deposition of Dr. Doe, pp. 170-172.

On March 20, 1992, Dr. Doe applied for orthopedic surgery privileges at Defendant Queen's Medical Center ("Queen's"). At the time of his application, Queen's was aware of Dr. Doe's prior substance abuse problems. Declaration of Dr. Drake Will, ¶ 8. On November 19, 1992, Queen's granted Dr. Doe hospital privileges.

On August 8, 1994, Dr. Doe performed hip revision surgery on Plaintiff Efren Domingo ("Domingo") at Queen's Medical Center. Following this second surgery, Domingo went into a coma and was diagnosed with fat emboli syndrome ("FES"), a rare condition where the fat emboli (particles of fat) are released into the circulatory system and compromise the circulation of the blood. As a result of the FES, Domingo suffered catastrophic brain damage which has left him with severe mental and physical impairments. Plaintiffs filed suit against Dr. Doe, Orthopedic Associates of Hawaii, and Queen's Medical Center on August 8, 1996.

STANDARD OF REVIEW

Rule 56 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, 2552, 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. at 2551.

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, 1355-56, 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, 2509, 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. at 2513. 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. at 2513. 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. at 2551.

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. Plaintiffs' Claim for Negligence

In their amended complaint, Plaintiffs assert a cause of action against Queen's for negligence. As the factual basis for this cause of action, Plaintiffs allege that Queen's negligently granted Dr. Doe operating privileges, even though it was aware of Dr. Doe's prior substance abuse. Plaintiffs contend that Queen's negligence was a direct and proximate cause of Plaintiffs' injuries. Defendant Queen's maintains that it is entitled to summary judgment on Plaintiffs' negligence claim because Dr. Doe's substance abuse occurred more than nine years prior to Domingo's surgery and Plaintiffs have failed to produce any evidence that Dr. Doe was actually impaired at the time of surgery or at any other time after 1985.

To prevail on their negligence claim, Plaintiffs must establish the following elements:

(1) A duty, or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks;

(2) A failure on the defendant's part to conform to the standard required: a breach of the duty;

(3) A reasonably close causal connection between the conduct and the resulting injury[;] and

(4) Actual loss or damage resulting to the interests of another.

Takayama v. Kaiser Foundation Hosp., 82 Hawai`i 486, 923 P.2d 903, 915-916 (1996) (citation and internal quotation marks omitted).

In this case, Plaintiffs are asserting that Queen's had a...