Sousaris v. Miller

• Decision Date: 30 December 1998
• Docket Number: No. 21167.,21167.
• Citation: 993 P.2d 568,92 Haw. 534
• Parties: Joseph M. SOUSARIS, Individually; as Special Administrator of the Estate of Rosemary J. Sousaris, deceased; and as Prochein Ami of Michael J. Sousaris and Nicholas A. Sousaris, minors, Claimant-Appellee, v. Barry D. MILLER, M.D., dba Center for Cosmetic Surgery, Respondent-Appellant, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, Doe "Non-Profit" Organizations 1-10, and Doe Governmental Agencies 1-10, Respondents.
• Court: Hawaii Court of Appeals

993 P.2d 568

92 Haw. 534

Joseph M. SOUSARIS, Individually; as Special Administrator of the Estate of Rosemary J. Sousaris, deceased; and as Prochein Ami of Michael J. Sousaris and Nicholas A. Sousaris, minors, Claimant-Appellee, v. Barry D. MILLER, M.D., dba Center for Cosmetic Surgery, Respondent-Appellant, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, Doe "Non-Profit" Organizations 1-10, and Doe Governmental Agencies 1-10, Respondents.

No. 21167.

Intermediate Court of Appeals of Hawai`i.

December 30, 1998.

Certiorari Granted January 28, 1999.

Francis T. O'Brien, on the briefs, Honolulu, for respondent-appellant.

L. Richard Fried, Jr., and John D. Thomas, Jr. (Cronin, Fried, Sekiya, Kekina & Fairbanks), on the briefs, Honolulu, for claimants-appellees.

BURNS, C.J., WATANABE, J., and Circuit Judge WENDELL HUDDY in place of ACOBA, J.

Opinion of the Court by BURNS, C.J.

Respondent-Appellant Barry Miller, M.D. (Dr. Miller), dba Center for Cosmetic Surgery, appeals the circuit court's (1) August 14, 1997 Order Granting Petition of Joseph M. Sousaris, Individually; as Special Administrator of the Estate of Rosemary J. Sousaris, Deceased; and as Prochein Ami of Michael J. Sousaris and Nicholas A. Sousaris, Minors, to Confirm Arbitration Award, Filed July 8, 1997 and Denying Petition of Respondent Barry D. Miller, M.D., dba Center for Cosmetic Surgery to Vacate Arbitration Award and for Permission to Conduct Discovery, Filed July 16, 1997 (August 14, 1997 Order Denying Motion to Vacate and Order Confirming Award) and (2) September 5, 1997 Order Denying Motion to Reconsider Order Denying Respondent Barry D. Miller's Motion to Vacate Arbitration Award or, in the Alternative for Relief from Order Confirming Arbitration Award, Filed August 8, 1997 (September 5, 1997 Order Denying Reconsideration). We affirm.

This opinion discusses and/or applies the rules governing and limiting (a) the circuit court's authority regarding a party's (i) motion to vacate an arbitration award, and (ii) attempt to amend a timely filed and served motion to vacate; and (b) the authority of the appellate courts regarding the circuit court's order confirming an arbitration award and denying a motion to vacate.

BACKGROUND

Rosemary Sousaris (Rosemary) and Dr. Miller entered into a Patient-Physician Arbitration Agreement (Arbitration Agreement)¹ signed by Rosemary on November 20, 1995 and by Dr. Miller on December 19, 1995 prior to Dr. Miller performing liposuction surgery on Rosemary on January 5, 1996. Joseph M. Sousaris, individually; as Special Administrator of the Estate of Rosemary J. Sousaris, deceased; and as Prochein Ami of Michael J. Sousaris and Nicholas A. Sousaris, minors, (Sousaris) brought a negligence claim against Dr. Miller seeking damages for Rosemary's death which allegedly resulted from Dr. Miller's medical negligence during the liposuction and post-operative care through January 12, 1996.

Pursuant to the Arbitration Agreement, Sousaris' negligence claim was submitted to arbitration. The Arbitration Agreement designated a three-member panel consisting of a lawyer, a local business person, and a physician. Peter Char, Esq. (Char), Kathy Muller (Muller), and Ronald Peroff, M.D. (Dr. Peroff) comprised the panel for this claim.

In part, the relevant American Arbitration Association form contains the following:

1. The names of the arbitrating parties and the attorneys representing them.

2. A Notice of Appointment directed to Dr. Peroff stating in relevant part as follows:

You have been selected to arbitrate in the above case. If you are able to accept this responsibility, please sign and return.

It is most important that the parties have complete confidence in the arbitrator's impartiality. Therefore, please disclose any past or present relationship with the parties or their counsel, direct or indirect, whether financial, professional, social or of any other kind.

3. A handwritten response by Dr. Peroff disclosing that "I know both of the attorneys, Mr. Fried [L. Richard Fried, Jr. (Fried)] and Mr. Quinn [Richard K. Quinn (Quinn)]. I was defended in a case by Mr. Quinn in which Mr. Fried represented the plaintiff."

4. The Arbitrator's Oath.

5. Dr. Peroff's signature.

The arbitration hearings were held between June 3, 1997 and June 6, 1997 and the attorneys made final summation on June 12, 1997. Arbitrator Muller decided that Dr. Miller was not negligent. The July 7, 1997 Award of Arbitrators (Award of Arbitrators) states in relevant part as follows:

The Award

As to liability of [Dr. Miller], two of the Arbitrators find that a preponderance of the evidence supports [Sousaris'] contention that [Dr. Miller] was actionably negligent in his care and treatment of [Rosemary]. All of the arbitrators agree that the evidence does not support [Dr. Miller's] contention that [Rosemary] was negligent or assumed the risk of her death and that Tripler Army Medical Center was negligent in its care and treatment of [Rosemary] between Friday, January 12, 1996 and Thursday, January 18, 1996. Therefore, the following sums are awarded to [Sousaris] as follows:

1. The Estate of [Rosemary] deceased Last medical bills $ 73,666.31 Funeral/burial expenses $ 12,110.13 Conscious pain and suffering $ 50,000.00 2. JOSEPH M. SOUSARIS $ 750,000.00 3. MICHAEL J. SOUSARIS $ 375,000.00 4. NICHOLAS J. SOUSARIS $ 375,000.00 TOTAL AWARD: $1,635,776.44.

Therefore, [Dr. Miller] shall pay to [Sousaris] the total sum of [$1,635,776.44].

The administrative fees and expenses of the American Arbitration Association, totaling [$7,000.00], shall be borne by the parties equally....

The fees for the remuneration of the arbitrators, totaling [$30,774.67], shall be borne by the parties equally.

On July 8, 1997, Sousaris filed a petition to confirm the arbitration award (Petition to Confirm). Dr. Miller opposed the Petition to Confirm and, on July 16, 1997, filed his petition to vacate arbitration award (Petition to Vacate). The basis for Dr. Miller's Petition to Vacate was his affidavit dated July 15, 1997 stating that he received a phone call from an unknown person informing him that the caller had "observed Dr. Peroff and Mr. Fried playing tennis."

Fried responded with his July 23, 1997 affidavit stating in relevant part as follows:

[T]he only distinct recollection I have of playing against Dr. Peroff was in a tennis tournament at the time that I was representing the plaintiffs in a case in which he was a named defendant wherein I represented the plaintiffs and Mr. Richard K. Quinn, Esq. represented Dr. Peroff. This occurred, to the best of my knowledge, approximately 10 years ago. I have only a vague recollection of having possibly played Dr. Peroff on one other occasion but that occasion, if it occurred, would have been again in a tournament setting, a situation in which neither of us would have arranged the match. I have never played tennis with Dr. Peroff on any occasion other than the one tournament that I do recall and with the possible exception of a second tournament, both of which were many years ago.

Dr. Peroff's representations in his July 22, 1997 affidavit were consistent with Fried's representations in his affidavit.

At the August 1, 1997 hearing on the Petition to Confirm and the Petition to Vacate, the circuit court orally granted the Petition to Confirm and denied the Petition to Vacate. The circuit court decided "that the evidence presented fails to establish evident partiality or even a reasonable impression of partiality... which would warrant vacating the award in this case." The August 14, 1997 Order Denying Motion to Vacate and Order Confirming Award followed.

On August 8, 1997, Dr. Miller filed a Motion to Reconsider Order Denying Respondent Barry D. Miller's Motion to Vacate Arbitration Award or, in the Alternative for Relief from Order Confirming Arbitration Award (Motion to Reconsider or for Relief). This Motion to Reconsider or for Relief alleged a new ground for vacating the arbitration award based on new evidence that allegedly was not available until after the August 1, 1997 hearing on the original Petition to Vacate. Dr. Miller alleged that Dr. Peroff consulted with other medical experts outside of the hearing and that these consultations constituted prejudicial misconduct on the part of Dr. Peroff. Dr. Miller submitted a declaration from attorney Richard K. Quinn who represented him at the arbitration proceedings. Quinn's declaration states in relevant part as follows:

2. After receiving the Award of the Arbitrators, I spoke with Arbitrator Kathy Muller, the sole Arbitrator who voted in favor of Dr. Miller. She told me that she could not understand the decision of the other Arbitrators. She said that it seemed to her like they had attended a different hearing than she had.

3. Subsequent to my receipt of the Award, I likewise attempted to speak with [Dr. Peroff]. I was interested to hear his analysis of the evidence....

* * *

6. I called Dr. Peroff at 10:27 a.m. HST on August 1, 1997....

7. Attached hereto as Exhibit "A" is a true and correct transcript of my notes of my conversation with Dr. Peroff. I did not record the conversation by electronic means. I speed-write, and I wrote my notes while Dr. Peroff and I were speaking. My notes reflect exact words used by Dr. Peroff and accurately reflect the substance of our entire conversation.

Quinn's notes state in relevant part as follows:

[Quinn]: I just wanted to find out how you came to the conclusions you did.

[Dr. Peroff]: Here's a lady who has a procedure and ends up in septic shock a week later. There has to be some connection there.

* * *

Then, the question was who to believe, Jud or the fellow from San Diego. I had an advantage over the other two. I started to ask questions about suctioning and what happens when you touch the bowel with suction. The feedback I got—and I didn't just take one person's word for it. If you get

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