Kekua v. Kaiser Foundation Hospital

• Decision Date: 15 October 1979
• Docket Number: No. 5851,5851
• Citation: 601 P.2d 364,61 Haw. 208
• Parties: George N. KEKUA, Sr., Individually and as Administrator of the Estate of George N. Kekua, Jr., Deceased, and Martha Kekua, Plaintiffs-Appellees, v. KAISER FOUNDATION HOSPITAL, Kaiser Foundation Health Plan, Incorporated, Hawaii Permanente Medical Group, Inc., and Jarrett Galbreth, Defendants-Appellants.
• Court: Hawaii Supreme Court

Page 364

601 P.2d 364

61 Haw. 208

George N. KEKUA, Sr., Individually and as Administrator of the Estate of George N. Kekua, Jr., Deceased, and Martha Kekua, Plaintiffs-Appellees, v. KAISER FOUNDATION HOSPITAL, Kaiser Foundation Health Plan Incorporated, Hawaii Permanente Medical Group Inc., and Jarrett Galbreth, Defendants-Appellants.

No. 5851.

Supreme Court of Hawai'i.

Oct. 15, 1979.

Syllabus By The Court

1. Generally, prior inconsistent statements concerning noncollateral matters are admissible in evidence for the purpose of impeaching a witness.

2. Once the foundational requirements for admission are met, a refusal on the part of the trial court to admit a deposition offered for the purpose of impeaching the credibility of a witness may constitute reversible error.

3. The trial court did not err in excluding deposition designed to impeach a witness where such deposition was never offered for admission.

4. The extrajudicial statements of a party-opponent, when offered against the same, are universally deemed admissible at trial as substantive evidence of the fact or facts stated.

5. The improper exclusion of competent testimony constitutes harmless error where the same evidence is established by the testimony of other witnesses or by other means.

6. The right to cross-examine a witness, although subject to waiver, is a fundamental right that is basic to our judicial system.

7. The extent of cross-examination of a witness is a matter largely within the discretion of the trial court and will not be the subject of reversal unless clearly prejudicial to the complaining party.

Donald A. Beck, Honolulu (Cades Schutte Fleming & Wright, Honolulu, of counsel), for defendants-appellants.

James F. Ventura (Libkuman, Ventura, Moon & Ayabe, Honolulu, of counsel; Raymond J. Tam, Honolulu, with him on the brief, Shim, Sigal, Tam & Naito, Honolulu, of counsel), for plaintiffs-appellees.

RICHARDSON, C. J., and KOBAYASHI, ^* OGATA, MENOR and KIDWELL,* JJ.

RICHARDSON, Chief Justice.

George N. Kekua, Sr., and his wife, Martha, brought a tort action against Kaiser Foundation Hospital, Kaiser Foundation Health Plan, Inc., Hawaii Permanente Medical Group and Dr. Jarrett Galbreth (hereinafter referred to collectively as appellants) for money damages arising out of the death of their son, George N. Kekua, Jr. (hereinafter decedent or George Jr.). The court below, sitting without a jury, found for the plaintiffs and the defendants appealed. For the reasons that follow, we affirm.

On October 23, 1973, Mr. and Mrs. Kekua (hereinafter appellees) filed in circuit court a complaint alleging, in essence, that their son's death had been proximately caused by appellants' negligence. In particular, the complaint averred that appellants had failed to properly examine, diagnose, and treat the decedent during his last illness. The trial of the case commenced on October 16, 1974, and ran for a period of five days. Although both the appellees and the appellants called numerous lay and expert witnesses to testify in support of their respective causes, gross inconsistencies and contradictions pervaded the testimonies adduced.

The pertinent factual findings of the trial judge can be summarized as follows: The decedent was born on June 30, 1941. During the late afternoon of February 3, 1972 the day before his demise he was taken by his parents to Kahuku Medical Clinic suffering from symptoms of high fever, vomiting, diarrhea, runny nose, and soreness of the head and chest. At the clinic, he was examined by Dr. Peter Yap, who detected moist, coarse rales (abnormal, loud grating or bubbling sounds indicative of secretions of the major bronchi; congestion) upon listening to decedent's chest with a stethoscope. The patient's temperature was recorded at 104 degrees.

Upon completing his examination, Dr. Yap informed appellees that their son was very ill and required immediate hospitalization. Since George Jr. was a member of the Kaiser health plan, the doctor instructed the office receptionist, Julie Fernandez, to call Kaiser Hospital in Honolulu to arrange for his admission there. Accordingly, Ms. Fernandez contacted the hospital and was informed that a bed would be available for George Jr. Ms. Fernandez was further advised by Kaiser Hospital that the decedent could either be directly driven into Honolulu or, if he got worse, be taken to Kaiser Koolau Clinic in Kaneohe where an ambulance would be dispatched to transport him the rest of the way. The appellees were then notified of this arrangement.

Thereupon, appellees left Kahuku Medical Clinic with George Jr. and drove directly to the Kaiser Koolau Clinic. Upon their arrival at approximately 5:00 p. m., the decedent was examined by the after-hours physician on duty there, defendant-appellant Dr. Jarrett Galbreth. Although the patient's temperature was recorded at 103.2 degrees, Dr. Galbreth advised appellees that their son was not sick enough to be hospitalized. At this time, Mr. Kekua told appellant Galbreth that they had just come from Kahuku Medical Clinic where another physician had examined the decedent and determined that he required immediate hospitalization. Nevertheless, the doctor refused to hospitalize George Jr. and instead ordered that he be given an injection and a prescription for medication to counteract the symptoms complained of. Neither the injection ordered nor the medication prescribed was antibiotic.

After picking up the prescribed medicine at a nearby drug store, appellees drove their son home, gave him the medicine and put him to bed. In the early morning of February 4, 1972 sometime between 1:00 a. m. and 2:00 a. m. appellees were awakened by a loud noise and soon discovered George Jr. on the floor of his room. An ambulance was then summoned and the decedent was transported to Kahuku Hospital. [61 Haw. 211] At 4:15 a. m. on February 4, 1972, George Kekua, Jr. was pronounced dead. Despite conflicting testimony as to the cause of decedent's death, the trial judge determined that George Jr. had died of bronchopneumonia.

Based on the foregoing factual findings, the trial judge concluded that the care, examination, diagnosis, and treatment by the appellants with respect to the decedent did not meet the standards of reasonable medical care in the community, in that: (1) appellant Dr. Galbreth should have heard moist, coarse rales in his examination of George Jr.; (2) Dr. Galbreth failed to determine the cause of his patient's abnormally high temperature and did not perform further diagnostic tests such as x-rays, blood sampling, blood pressure, and sodium and potassium tests; (3) Dr. Galbreth failed to prescribe any drugs effective to combat bronchopneumonia and failed to heed the notice by appellees that George Jr. had been previously examined by another doctor, diagnosed as being very ill and in need of immediate hospitalization; and (4) at the time of his examination and treatment of the decedent, Dr. Galbreth was acting within the course and scope of his employment as agent, employee and member of the Kaiser Foundation Hospital, Kaiser Foundation Health Plan, Inc., and the Hawaii Permanente Medical Group. Further, the trial court found that failure of appellants to meet the standard of reasonable medical care in the community was the proximate cause of the death of George Kekua, Jr.

During the course of trial, the appellants' primary theory of defense was that George Jr. had actually been treated by Dr. Yap at the Kahuku Medical Clinic for asthma and, accordingly, had been given an injection containing adrenaline to restore normal breathing. Appellants therefore claimed that, at the time of his examination, Dr. Galbreth would have been unable to determine that the decedent was possibly suffering from pneumonia. In its findings of fact, the trial court conceded that the credibility of the witnesses presented was the determining factor in the case and it specifically stated that it did not believe that any treatment or injection was given to George Jr. at the Kahuku Medical Clinic, notwithstanding the testimonies proffered by defense witnesses to the contrary.

In the instant appeal, appellants contend that they were denied their right to a fair and impartial trial by virtue of numerous erroneous evidentiary rulings on the part of the trial judge. More specifically, appellants argue that the trial court erred in (1) prohibiting the impeachment of plaintiffs' witnesses by refusing to allow the use of depositions as impeachment evidence; (2) refusing to allow a defense witness to testify as to out-of-court statements made by plaintiffs regarding the medical care and treatment of the decedent before he was examined by Dr. Galbreth; (3) limiting the cross-examination of plaintiffs' medical expert witnesses to an extent which deprived appellants of their right to a fair and impartial trial. In addition to the above alleged points of error, appellants urge that the trial court committed other miscellaneous errors that had the cumulative effect of prejudicing their defense.

1. Use of depositions for impeachment purposes. The first ground for reversal urged by appellants involves the use of depositions for the purpose of impeachment. In short, appellants claim that the trial court improperly refused to allow them upon cross-examination to discredit the testimonies of two plaintiff witnesses receptionist Julie Fernandez and Dr. Peter Yap through the introduction of depositions containing prior inconsistent statements.

Generally speaking, prior inconsistent statements concerning noncollateral matters are admissible in evidence for the purpose of impeaching a witness. See HRS §§ 621-23 and 621-24 (1976); State v. Napeahi, 57 Haw. 365, 371-72, 556 P.2d 569, 572-74 (1977); State v. Pokini, 57 Haw. 26, 29, 548 P.2d 1402, 1404-5 (1976); Asato v. Furtado, 52 Haw. 284, 288, 474 P.2d 288, 292 (1970); In re Estate of Ching, 46 Haw. 127, 132-33, 376 P.2d 125, 128 (1...