Frey v. Goebert, I-
| Decision Date | 21 September 1970 |
| Docket Number | D,I-,No. 4916,I-V,4916 |
| Citation | 52 Haw. 308,474 P.2d 537 |
| Parties | Sylvia FREY and John Frey, Plaintiffs-Appellants, v. H. William GOEBERT, Jr., Straub Clinic, a general partnership, John Doesoe Partnerships, and Doe Corporationsefendants-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
This court will not set aside findings of fact unless it is left with a definite and firm conviction that a mistake has been committed by the trial court.
Hyman M. Greestein, Honolulu (Michael B. Shane, Honolulu, on the briefs), for appellants.
Thomas M. Waddoups, Honolulu (Alexander C. Marrack, Honolulu, on the brief; Anthony & Waddoups, Honolulu, of counsel), for appellees.
Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
This is an appeal by plaintiffs John Frey and Sylvia Frey, husband and wife, from a circuit court judgment in favor of defendants in a medical malpractice action predicated on hemiplegia and aphasia suffered by Mrs. Frey. Defendant H. William Goebert, Jr., is a neurosurgeon and defendant Straub Clinic is a partnership of which Dr. Goebert is a member. Plaintiffs' claim is that Mrs. Frey's condition resulted from Dr. Goebert's megligence in performing diagnostic surgical procedures known as angiography and pneumoencephalography. The judgment was entered pursuant to the court's findings of fact and conclusions of law made at the conclusion of a jury-waived trial.
There were two issues in the circuit court. One of the issues was whether Dr. Goebert performed angiography and pneumoencephalography upon Mrs. Frey without her informed consent. The other was whether Mrs. Frey's condition resulted from the performance of angiography and pneumoencephalography upon her or whether it resulted from a congenital condition known as arterio-venous malformation.
On the first issue, the circuit court found that 'plaintiffs have failed to sustain the burden of proving by a preponderance of the evidence that there was no informed consent or that the conditions complained of by plaintiffs were proximately caused by the so-called lack of such consent.' From the record, we cannot say that the finding is clearly erroneous. Furthermore, the issue is immaterial in the light of the court's finding on the second issue.
The court's finding on the second issue was that plaintiffs failed to prove by a preponderance of evidence that Mrs. Frey's condition resulted from the procedures performed by Dr. Goebert, and that...
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