Yamane v. Pohlson
| Decision Date | 27 June 2006 |
| Docket Number | No. 27047.,27047. |
| Citation | 137 P.3d 980 |
| Parties | John YAMANE, as Special Administrator of the Estate of John Duong; Hung Duong, and Duc Lai, Plaintiffs-Appellants, v. Elizabeth C. POHLSON, M.D., Mitsuo Hattori, M.D., Mitsuo Hattori, M.D., Inc., and Kapi`Olani Medical Specialists, Defendants-Appellees, and Kapi`Olani Medical Center for Women and Children; John Does 1-10, Defendants. |
| Court | Hawaii Supreme Court |
James J. Bickerton and Daniel A. Morris (of Bickerton Saunders Dang & Sullivan), on the briefs, Honolulu, for plaintiffs-appellants.
Kenneth S. Robbins, Leighton M. Hara, and Wendy M. Yamamoto (of Robbins & Associates), on the briefs, Honolulu, for defendant-appellee Kapi`olani Medical Specialists.
The present appeal concerns the issue whether plaintiffs-appellants John Yamane, as special administrator of the Estate of John Duong (John), Hung Duong, and Duc Lai [hereinafter, collectively, the plaintiffs] have complied with Hawai`i Revised Statutes (HRS) chapter 671, which established the Medical Claims Conciliation Panel [hereinafter, the MCCP or the panel] to "review and render findings and advisory opinions on the issues of liability and damages in medical tort[1] claims against health care providers[,]" HRS § 671-11(a) (1993), prior to filing their medical malpractice suit in court. Briefly stated, twelve-year-old John was taken by his father, Duong, to the emergency room at defendant Kapi`olani Medical Center for Women and Children [hereinafter, the Medical Center] because he was having difficulty breathing. It was determined that John had a large mediastinal mass (tumor) compressing his airway. Following a surgical biopsy to determine the histology of the tumor — performed by defendant-appellee Elizabeth Pohlson, M.D. (Dr. Pohlson), a self-employed pediatric surgeon, and defendant-appellee Mitsuo Hattori, M.D. (Dr. Hattori), an anesthesiologist — John passed away due to cardio respiratory arrest. Thereafter, the plaintiffs filed a medical tort claim before the MCCP, naming, inter alia, the Medical Center and defendant-appellee Kapi`olani Medical Specialist (KMS), alleging that John's death was a result of the medical care and treatment rendered by their employee-physicians, who were not specifically named as defendants. The plaintiffs also named Dr. Pohlson as a respondent in the MCCP action, but did not name Kelly Woodruff, M.D. (Dr. Woodruff), a specialist in pediatric hematology/oncology and a former employee of KMS, who was involved in the pre-biopsy care and treatment of John. The plaintiffs alleged that the health care providers2 failed to take precautionary measures to shrink the tumor in order to provide increased airway protection prior to undertaking a biopsy.
When the plaintiffs ultimately filed their complaint in the circuit court, they did not name Dr. Woodruff as a defendant, but alleged vicarious liability against KMS for the acts and/or of omissions of its employees. The Circuit Court of the First Circuit, the Honorable Bert I. Ayabe presiding, dismissed the plaintiffs' vicarious liability claim against KMS on the ground that the plaintiffs were precluded from asserting such claim because Dr. Woodruff was not named in the MCCP action and that, therefore, the plaintiffs had not perfected a vicarious liability claim against KMS as a condition precedent to bringing an action in circuit court. Consequently, the circuit court granted KMS's motion to dismiss for lack of subject matter jurisdiction. In accordance with Hawai`i Rules of Civil Procedure (HRCP) Rule 54(b) (2004),3 a final judgment was entered with respect to KMS on December 20, 2004, and the plaintiffs now appeal from that judgment.
On appeal, the plaintiffs argue that the circuit court erred in dismissing KMS because HRS chapter 671 does not require the plaintiffs to name KMS's employee, Dr. Woodruff, as a party in the antecedent MCCP proceedings and that such requirement would be contrary to vicarious liability law. The plaintiffs also assert that the circuit court erred in dismissing KMS for lack of jurisdiction inasmuch as KMS waived its right to challenge jurisdiction by not filing its motion prior to the deadline for substantive motions.
Inasmuch as we conclude that the plaintiffs have complied with the requirements of HRS chapter 671, we vacate the circuit court's December 20, 2004 final judgment and remand this case for further proceedings.
On August 8, 1998, John was admitted to the Medical Center with complaints of coughing and difficulty breathing. A chest x-ray and CT scan revealed a large anterior mediastinal mass4 (tumor) compressing or displacing John's trachea (windpipe) and right main bronchus. John was placed in the Pediatric Intensive Care Unit (PICU) for further evaluation and treatment.
On August 9, 1998, oncology and surgical consultations were obtained from Dr. Woodruff and Dr. Pohlson. Following several conferences with John's family, a decision was made to perform a surgical biopsy in order to obtain a pathological diagnosis and determine the type of cancer treatment to use.
On August 9, 1998 at 3:55 p.m., Dr. Pohlson, assisted by Kimberly Moseley, M.D. (Dr. Moseley), performed the biopsy surgery with Dr. Hattori providing anesthesia care. Although an initial blood gas analysis revealed that John was severely acidotic (excessive acid in the body fluids), John was transferred out of the operating room to the PICU and placed under the care of Paula Vanderford, M.D. (Dr. Vanderford), a pediatric intensivist employed by KMS. A second blood gas analysis indicated worsening acidosis and hypoxia (lack of oxygen), and, at 7:45 p.m., John went into cardiopulmonary arrest. Efforts to resuscitate him failed, and he was pronounced dead at approximately 8:10 p.m. on August 9, 1998.
The MCCP (now codified in HRS chapter 671) is a "comprehensive system of medical malpractice dispute resolution," Dubin v. Wakuzawa, 89 Hawai`i 188, 197, 970 P.2d 496, 505 (1999), created because of a "crisis in the area of medical malpractice." Tobosa v. Owens, 69 Haw. 305, 311, 741 P.2d 1280, 1285 (1987) (internal quotation marks omitted).
Among other objectives, the legislature sought thereby to "[s]tabilize the medical malpractice insurance situation by reintroducing some principles of predictability and spreading of risk" and "[d]ecrease the costs of the legal system and improve the efficiency of its procedures to the end that awards are more rationally connected to the actual damages." Id. ... The panels undoubtedly were established "to encourage early settlement of claims and to weed out unmeritorious claims." Hse. Stand. Comm. Rep. No. 417, in 1976 House Journal, at 1460.
Id. at 311-12, 741 P.2d at 1285 (brackets in original); see also Doe v. City & County of Honolulu, 93 Hawai`i 490, 497-98, 6 P.3d 362, 369-70 (App.2000).
In the context of the instant appeal, the following provisions of HRS chapter 671 are relevant:
§ 671-12 [ (1993) ] Review by panel required; notice; presentation of claims; request for a more definite statement of the claim. (a) Effective July 1, 1976, any person or the person's representative claiming that a medical tort has been committed shall submit a statement of the claim to the [MCCP] before a suit based on the claim may be commenced in any court of this State. Claims shall be submitted to the [MCCP] in writing. The claimant shall set forth facts upon which the claim is based and shall include the names of all parties against whom the claim is or may be made who are then known to the claimant....
....
§ 671-16 [ (Supp.2005) ] Subsequent litigation; exclusive evidence. The claimant may institute litigation based upon the claim in an appropriate court only after a party to a [MCCP] hearing rejects the decision of the panel, or after the twelve-month period under section 671-18 [ (Supp. 2005)5 ] has expired.
No statement made in the course of the hearing of the [MCCP] shall be admissible in evidence either as an admission, to impeach the credibility of a witness, or for any other purpose in any trial of the action[.]
(Bold emphases in original.) (Underscored emphases added.) During the MCCP process, the panel6 conducts an informal hearing and, if no settlement is reached, issues a written advisory decision, including a finding of damages, if any. HRS §§ 671-13 and -15 (1993); see also Lum v. Queen's Med. Ctr., 69 Haw. 419, 422, 744 P.2d 1205, 1207 (1987) .
On August 7, 2000, the plaintiffs filed a medical tort claim before the MCCP, pursuant to HRS § 671-12, against twelve respondents as indicated in the table below:
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