Mahoney v. Mitchell, 8841
| Decision Date | 27 July 1983 |
| Docket Number | No. 8841,8841 |
| Citation | 668 P.2d 35,4 Haw.App. 410 |
| Parties | Constance G. MAHONEY, Temporary Administrator of the Estate of Roy Patrick Mahoney, Deceased; Constance G. Mahoney, individually; Katherine Kiel; David Mahoney; and Michael Mahoney, Plaintiffs-Appellants, v. James E. MITCHELL, M.D., Defendant-Appellee, and Hawaiian Airlines, Inc., and State of Hawaii, Defendants. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. A party may not complain about the trial court's failure to grant his pretrial motion to suppress evidence if the evidence sought to be suppressed is not admitted at trial.
2. A party may not complain about being denied the opportunity to introduce testimony at trial unless the judge has unequivocally ruled that testimony inadmissible.
3. If counsel at jury trial deems the trial judge's statements prejudicial, he should object when they are made.
4. In jury trials, the trial judge should refrain from remarks to counsel touching the management of the case and reflecting on their conduct.
5. It is not error for the trial judge to refuse to give an instruction about an issue which is not in controversy.
6. It is not error for the trial judge to refuse to give an instruction which is substantially
covered by other instructions given.
7. As long as the jury was properly instructed as to its procedure and it materially complied with those instructions, it used proper procedure.
Paul E. Di Bianco, Honolulu, for plaintiffs-appellants.
Kenneth S. Robbins, Honolulu (Steven K. Hisaka, Honolulu, with him on the briefs), for defendant-appellee.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
In this medical malpractice case tried by a jury, plaintiffs appeal the judgment in favor of defendant Dr. James E. Mitchell.
The questions before us are:
1. May plaintiffs complain about the trial judge's refusal to suppress the testimony of defendant's witness when the testimony sought to be suppressed is not introduced at trial?
2. Did the trial judge's comments during the trial to plaintiffs' counsel in the jury's presence deny plaintiffs a fair trial?
3. Did the trial judge err in not giving various instructions requested by plaintiffs?
4. Did the jury use faulty procedure in arriving at a verdict?
We answer no to all questions and affirm.
On August 24, 1976, Mr. Mahoney, age 54, suffered a cerebral vascular accident and arrived at Kona Hospital at 7:10 a.m. with a right-sided headache and left hemiplegia. His vital signs and blood pressure were normal. At that time, the equipment to obtain a computerized axial tomograph (CAT scan), an electroencephalogram (EEG), and a cerebral angiogram was available in Honolulu but not in Kona. Mrs. Mahoney and two of the three Mahoney children, David and Kathy, each testified that they had asked Mr. Mahoney's physician, Dr. Mitchell, to send Mr. Mahoney to Honolulu rather than keep him in Kona Hospital. Since he was not sure of the cause of the stroke, Dr. Mitchell decided to keep Mr. Mahoney in Kona Hospital "to observe him, hope that he would stabilize and then possibly send him for definitive treatment."
At the trial, Dr. Mitchell responded to a question as follows:
Q Would you agree that it would have been in Mr. Mahoney's better interest if he had been sent immediately to Honolulu so that if in fact he did survive he would have definitive treatment available to him at all times?
A No. I believe not because I think stress of putting him on the ambulance, take him down to the airport, putting him on the airplane, send him up to a pressurized level of 7000 feet and then down again and by ambulance by Queen's, I think it would have done more harm than good in his particular initial stroke.
During Mr. Mahoney's stay at Kona Hospital, Dr. Mitchell prescribed, inter alia, demerol and valium. 1 At 9:00 p.m. Mr. Mahoney was resting comfortably. At 2:00 a.m. the next day his speech was understandable. At 4:00 a.m. he was sleeping soundly. At 6:30 a.m. the pupils of his eyes were bilaterally dilated and did not react to light. At 7:20 a.m. Dr. Mitchell instructed Kona Hospital to transfer Mr. Mahoney to Queen's Medical Center in Honolulu. At 7:30 a.m. his pupils were fixed; he was unresponsive to painful stimuli and completely comatose. On the airplane, his condition further deteriorated. Consequently, he was taken to Tripler Army Medical Center, the closest hospital to the Honolulu airport, where a lumbar puncture indicated no evidence of bleeding and an EEG showed no brain activity. The next day he was disconnected from the respirator and declared dead. No autopsy was performed as Mrs. Mahoney declined to authorize it.
The three Mahoney children and Mrs. Mahoney, for herself and Mr. Mahoney's estate, sued Hawaiian Airlines, the State of Hawaii (Kona Hospital), and Dr. Mitchell.
Prior to trial, Michael Mahoney withdrew as a plaintiff, and the trial judge awarded summary judgment in favor of Hawaiian Airlines. The trial of the plaintiffs' claims against Dr. Mitchell was held before a jury. As to the plaintiffs' claims against Kona Hospital, the jury was advisory. See Hawaii Revised Statutes § 662-5 (1976) and Rule 39(c), Hawaii Rules of Civil Procedure (HRCP).
After the close of plaintiffs' evidence, the trial judge dismissed under Rule 41(b), HRCP, plaintiffs' claim against Kona Hospital. He also dismissed under Rule 50(a), HRCP, the following two of plaintiffs' claims against Dr. Mitchell: (1) that Dr. Mitchell "negligently failed to diagnose [Mr. Mahoney's] condition properly," and (2) that by
The plaintiffs' expert was Dr. J. Paul Rader, a California neurosurgeon, who testified at a deposition but was not available to testify in person at trial. 2 Dr. Mitchell's expert was Dr. Kenneth K. Nakano, a Hawaii neurologist.
At the close of all the evidence, the jury was instructed to rule in favor of plaintiffs if it found (1) that Dr. Mitchell negligently failed to treat Mr. Mahoney with appropriate medication or (2) that Dr. Mitchell treated Mr. Mahoney with inappropriate medication or (3) that Dr. Mitchell negligently admitted Mr. Mahoney into Kona Hospital rather than immediately having him airlifted to a hospital in Honolulu. The jury returned a general verdict in favor of Dr. Mitchell. The plaintiffs appeal only the judgment in favor of Dr. Mitchell. We will deal with the four previously stated issues seriatim. 3
In an effort to discredit Dr. Rader, Dr. Mitchell deposed another California doctor, Dr. Alan Townsend Webb, who contradicted some of Dr. Rader's credentials. Dr. Webb also was not available to testify in person at trial.
Prior to the trial, plaintiffs moved to prohibit the use of Dr. Webb's deposition on the ground that his testimony was "based upon hearsay oral remarks of others and the review of occasional documents which he has happened to see[.]" At the hearing on the motion, the trial judge advised plaintiffs that unless they agreed not to introduce certain portions of Dr. Rader's testimony, Dr. Webb's testimony contradicting those portions would probably be admitted into evidence. The judge was of the opinion that the portion of Dr. Rader's deposition which was contradicted by Dr. Webb's deposition was unnecessary to plaintiffs' case. Thereafter, plaintiffs elected to strike certain portions of Dr. Rader's deposition and at trial offered only the remainder in evidence. Dr. Webb's deposition was not offered nor received in evidence at trial.
On appeal plaintiffs contend that the trial judge erred in not suppressing Dr. Webb's testimony and in causing them to delete portions of Dr. Rader's testimony.
In our view, a party may not complain about the trial court's failure to grant his pretrial motion to suppress evidence if the evidence sought to be suppressed is not admitted at trial. Lussier v. Mau-Van Development, Inc., 4 Haw.App. ---, 667 P.2d 804, 826 (1983). Since Dr. Webb's deposition was not admitted in evidence, plaintiffs cannot complain that the trial judge erred in denying their pretrial motion to suppress.
Further, a party may not complain about being denied the opportunity to introduce testimony at trial unless the judge has unequivocally ruled that testimony inadmissible. Id.; see Rule 103, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised Statutes. Here, the trial judge did not rule that Dr. Rader's testimony could not be admitted; therefore, it was not his error that caused the testimony not to be presented to the jury.
Plaintiffs contend that during the trial, the judge made improper comments to their counsel in the presence of the jury, thus denying them a fair trial. They cite three instances, all of which occurred on the first day of a two-day trial.
The first instance occurred when on direct examination plaintiffs' counsel was questioning nurse Sharon Matsuyama's statement that Mr. Mahoney's condition had improved and had not deteriorated from the time of his arrival at the hospital until she got off work at 3:00 p.m. Plaintiffs' counsel read a portion of the nurse's deposition testimony on the subject and the hospital's counsel wanted him to read all of it. At that point the following interchange occurred:
We want to be fair in this trial. We're not trying this case on the basis of one-line answers.
Proceed.
The second instance occurred as follows:
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