Tittle v. Hurlbutt

• Decision Date: 02 June 1972
• Docket Number: No. 5060,5060
• Citation: 497 P.2d 1354,53 Haw. 526
• Parties: Jack F. TITTLE and Jean L. Tittle, Individually, and Jean L. Tittle as Guardian Ad Litem for Stephen Findley Tittle, a Minor, Plaintiffs-Appellants, v. Frank R. HURLBUTT et al., Defendants-appellees.
• Court: Hawaii Supreme Court

Page 1354

497 P.2d 1354

53 Haw. 526

Jack F. TITTLE and Jean L. Tittle, Individually, and Jean L.

Tittle as Guardian Ad Litem for Stephen Findley

Tittle, a Minor, Plaintiffs-Appellants, v. Frank R. HURLBUTT et al., Defendants-appellees.

No. 5060.

Supreme Court of Hawai'i.

June 2, 1972.

Syllabus by the Court

1. Absence of a Hawaii license to practice medicine is immaterial in determining whether a defendant physician exercised proper care in the treatment of his patient where the defendant physician administered patient care under the direction of a licensed physician, as provided by law, and had satsified all requirements necessary to obtain a license in this state, except that of the durational residency requirement.

2. The trial judge's discretion in the giving of jury instructions are defined by the obligation to give sufficient instructions and to avoid giving cumulative instructions.

3. The trial judge does not exceed the limits of his discretion by reason of his refusal of a requested instruction which is substantially covered by other instructions, even when the refused instruction is a correct statement of the law.

4. The trial judge does not abuse his discretion in denying requested instructions which precariously resemble the type of proscribed instruction which single out and unduly emphasize certain facts.

5. The trial judge does not abuse his discretion in prohibiting employment of medical texts for the purpose or rehabilitating one's own expert witness when the subject witness has made frequent references to medical studies to support his testimony throughout direct examination and cross-examination.

Frank D. Padgett, Honolulu (Padgett, Greeley, Marumoto & Steiner, Honolulu, of counsel), for appellants.

Richard K. Quinn, Honolulu (Anthony, Hoddick, Reinwald & O'Connor, Honolulu, of counsel), for appellees.

Before RICHARDSON, C. J., ABE, LEVINSON, KOBAYASHI, JJ., and KAWAKAMI, Circuit Judge, for MARUMOTO, J., disqualified.

RICHARDSON, Chief Justice.

This appeal arises out of an action filed in the First Circuit Court to recover damages in which appellants alleged that appellees' medical malpractice in the pre-natal and neo-natal care of appellee Jean Tittle and her son Stephen Tittle negligently caused Stephen Tittle to be born with cerebral palsy. Stephen Tittle was born at the Kaiser Foundation Hospital in Honolulu on October 19, 1965. A trial by jury determined whether appellees, or any of them committed acts of negligence which proximately caused Stephen Tittle to be born with cerebral palsy. The jury returned a verdict by way of special interrogatories in favor of appellees finding that none of the appellees committed any negligent acts. Appellants appeal the judgment based on that verdict.

Appellants raise twelve points on appeal. We believe that only three points merit discussion.

I

The first issue is whether lack of a state license to practice medicine by itself constitutes evidence of negligence. ¹ We believe it does not.

Appellee Dr. Hurlbutt at the time he delivered Stephen Tittle had met all of the statutory qualifications necessary to procure a license except that of the one-year durational residency requirement. Since he was a diplomate of the National Board of Medical Examiners, the necessity of an examination administered by the State of Hawaii was obviated. Dr. Hurlbutt's working experience in the medical profession, prior to acquisition of his Hawaii license in August, 1966, is considerable. Subsequent to graduation from medical school in 1943 and completion of his internship and residency, he served in the Navy where he was director of the Outpatient Department of the Newport Naval Hospital. Following that, the doctor entered private practice in obstetrics and gynecology in Connecticut. After six years, he moved to San Francisco where he served as attending physician in obstetrics and gynecology in the Kaiser Permanente Medical Group, a division of the Kaiser Medical Care Program for twelve years. In 1965, he moved to Hawaii where he remained in association with the Kaiser program.

The trial judge's refusal to allow appellant to establish negligence solely by reason of Dr. Hurlbutt's lack of a license to practice medicine was proper. We hold that the absence of a Hawaii license to practice medicine is immaterial in determining whether a defendant physician exercised proper care in the treatment of his patient where the defendant physician administered patient care under the direction of a licensed physician, as provided by law, and had satisfied all requirements necessary to obtain a license in this state except that of the durational residency requirement. It is the manner in which the services in treatment of a patient are performed that is determinative. See Starr v. Fregosi, 370 F.2d 15, 19 (5th Cir. 1966); McDonald v. Foster Memorial Hospital, 170 Cal.App.2d 85, 93-94, 338 P.2d 607, 611-612 (1959); Bute v. Potts, 76 Cal. 304, 305, 18 P. 329 (1888).

In the present case, Dr. Hurlbutt, at the time of his delivery of Stephen Tittle, was administering patient treatment 'under the direction of a physician regularly licensed in the State', in compliance with state law. ²

Further, absence of a license is immaterial in determining negligence by reason of an additional factor operative in the present case. Prior to his delivery of Stephen Tittle, appellee Hurlbutt had practiced medicine in his field of specialization no less than eighteen years in two different jurisdictions. Especially in light of the considerable extent of Dr. Hurlbutt's previous professional experience as a licensed physician, it would have been absurd to measure his skill by his non-licensed status in Hawaii. He had satisfied all statutory requirements for an Hawaii license save that of the then established one-year durational residency provision. ³ The traditional bases for such durational residency requirements include: (1) the opportunity for observation of moral character afforded by residence; (2) furtherance of high ethical standards after practice begins, when members of the profession develop a continuing interest and acquire a stake in the community. We find it unnecessary to comment on the constitutional soundness, or lack thereof, of these bases, but mention them because they constituted the underlying justification for the durational residency requirement effective at the time of the trial of the present case. They do not constitute supportable grounds for measuring Dr. Hurlbutt's skill by his non-licensed status.

First, prior to Dr. Hurlbutt's arrival in Hawaii in 1965, his moral character had been scrutinized and attested to by the jurisdictions in which he had practiced. The fact of prior investigation of one's moral character by other jurisdictions does not automatically dispense with this State's obligation to investigate, but is highly probative in establishing the existence of sound moral character. Second, that the Kaiser Medical Care Program has a continuing interest and state in the island community is clear; and Dr. Hurlbutt's association with their program for twelve years, prior to moving to Hawaii serves to satisfy the second basis of the residential requirement.

Appellants' reliance on Correira v. Liu, 28 Haw. 145 (1924) is misplaced. In Correira, the court held that a bailor automobile owner is liable to a third person if the bailor's breach of his statutory duty and his bailee's incompetence together are the proximate cause of injury to the third person. The bailor breached his statutory duty by reason of bailment of his automobile to a bailee not licensed by law to operate a motor vehicle. Operation of a motor vehicle without a license was a misdemeanor and, hence, the court found absence of a license constituted evidence from which incompetence could be inferred. In the present case, appellee Dr. Hurlbutt's care of patients without a license but under the direction of a licensed physician was authorized by law. ⁴ Hence, Dr. Hurlbutt's non-licensed status contained no probative value as to the issue of negligence.

II

The second question is whether the trial judge erred by reason of his refusal to give four specific instructions requested by appellant, each of which specified appellee's failure to perform certain acts as negligence. We believe the trial judge properly exercised his discretion in refusing to give these instructions.

The function served by jury instructions is to inform the jury of the law applicable to the current case. The boundaries of the trial judge's discretion in performing this function are defined by the obligation to give sufficient instructions and the opposing imperative against cumulative instructions. However, '(i)f any policy is to be preferred, it is that of allowing adequate and thorough instructions to be given', if they can be given without undue prejudice or confusion. Barretto v. Akau, 51 Haw. 383, 399, 463 P.2d 917, 926 (1969). The trial judge does not exceed the limits of his discretion by reason of his refusal of a requested instruction which is substantially covered by other instructions, even when the refused instruction is a correct statement of the law. Carson v. Saito, 53 Haw. 178, 180, 489 P.2d 636, 637 (1971); Ashford v. Thos. Cook & Son (Bankers) Ltd., 52 Haw. 113, 122, 471 P.2d 530, 536 (1970); Gibo v. City and County of Honolulu, 51 Haw. 299, 304, 459 P.2d 198, 201 (1969); Kometani v. Heath,50 Haw. 89, 98, 431 P.2d 931, 938 (1967); Collins v. Shishido, 48 Haw. 411, 418-419, 405 P.2d 323, 328 (1965); State by Kobayashi v. Heirs of Kapahi, 48 Haw. 101, 108, 395 P.2d 932, 937 (1964); Estate of Ching, 46 Haw. 127, 129, 376 P.2d 125, 127 (1962). In Barretto v. Akau, supra, 51 Haw. at 395-398, 463 P.2d 917, this court in elucidating the confines of the trial judge's discretion, indicated that the repetitious instructions should be avoided by striving to reduce the number of instructions given and to give a...