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Rosalinda Iturralde, Individually and In Her Capacity As Personal v. Hilo Medical Center

March 30, 2012

ROSALINDA ITURRALDE, INDIVIDUALLY AND IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ARTURO ITURRALDE, PLAINTIFF-APPELLANT, CROSS-APPELLEE,
v.
HILO MEDICAL CENTER, A HAWAII NON-PROFIT CORPORATION, HAWAII HEALTH SYSTEMS CORPORATION, A PUBLIC BENEFIT CORPORATION, STATE OF HAWAII, DEFENDANTS-APPELLEES, CROSS-APPELLANTS AND MEDTRONIC SOFAMOR DANEK, USA, A TENNESSEE CORPORATION LICENSED TO DO BUSINESS IN HAWAII, AND ROBERT RICKETSON, M.D., DEFENDANTS-APPELLEES



APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 03-1-0017 (HILO))

The opinion of the court was delivered by: Leonard, J.

FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

NAKAMURA, CHIEF JUDGE, FUJISE AND LEONARD, JJ.

OPINION OF THE COURT BY LEONARD, J.

Plaintiff-Appellant/Cross-Appellee Rosalinda Iturralde (Appellant or, in reference to her individual capacity, Rosalinda), individually and in her capacity as personal representative of the Estate of Arturo Iturralde (Arturo's Estate), and Defendants-Appellees/Cross-Appellants Hilo Medical Center, Hawaii Health Systems Corporation, State of Hawaii (collectively, HMC), appeal from the Amended Final Judgment (Judgment) of the Circuit Court of the Third Circuit (Circuit

Court).*fn1 The Judgment, entered September 10, 2007, awarded various damages against HMC and Defendant-Appellee Robert Ricketson, M.D. (Dr. Ricketson). It awarded judgment in favor of Defendant-Appellee Medtronic Sofamor Danek USA, Inc. (Medtronic) on all claims.

On appeal, Appellant asserts that the Circuit Court erred in: (1) awarding joint and several damages against HMC in an amount different from the amount awarded by jury against Dr. Ricketson; (2) adopting Medtronic's proposed jury instruction on the substantial change doctrine of products liability; (3) adopting Medtronic's proposed jury instructions and special verdict interrogatory on foreseeability and superseding cause; and (4) failing to hold HMC jointly liable for damages awarded to Rosalinda for negligent infliction of emotional distress (NIED). On cross-appeal, HMC asserts that the Circuit Court erred in:

(1) failing to apply Hawaii Revised Statutes (HRS) § 663-10.5

(Supp. 2006), as amended, to preclude HMC from being held jointly and severally liable in tort; and (2) failing to offset the judgment against HMC by the good-faith settlement of non-party Hawaii Orthopaedics, Inc.

I. BACKGROUND

A. Arturo Iturralde's Medical Care

Decedent Arturo Iturralde (Arturo) was admitted to HMC, a state-owned hospital in Hilo, in January of 2001, for an assessment of increasing weakness in his legs that had resulted in several falls. Dr. Ricketson, an orthopedic surgeon with credentials at HMC, examined Arturo on January 24, 2001. He diagnosed Arturo with degenerative spondylolisthesis L4-5 with stenosis, a condition that exerted pressure on the nerves. This condition could potentially be relieved through spinal fusion surgery, which involved implanting two rods into the spine to form a bilateral fixation. Dr. Ricketson scheduled Arturo for the surgery the following Monday, January 29, 2001. Dr. Ricketson directed HMC to order an M8 Titanium CD Horizon Kit (Kit) from Medtronic, which would contain all the necessary instrumentation and tools, including the two titanium implant rods crucial for the surgery. Because Medtronic did not have the instrumentation portion of the Kit in stock at its Memphis facility, it sent the order in two shipments: one from Memphis and one from Tulane. HMC received both shipments on Saturday, January 27, 2001, at approximately 7:30 pm. The contents were sterilized and sent to the operating room. At no time did any HMC staff complete an inventory of the contents of the Kit, as required by well-established HMC policy. Before Dr. Ricketson commenced the surgery, nurse Vicki Barry advised him that an inventory of the Kit had not been completed. Nevertheless, Dr. Ricketson proceeded with the surgery. He removed portions of Arturo's vertebrae in preparation for implanting the rods.

Over two hours into the operation, when he was ready to affix the two titanium rods to both sides of Arturo's spine, surgical staff informed Dr. Ricketson that they could not locate the rods. At trial, several staff testified that they had engaged in an extensive search throughout the hospital, to no avail. A staff member contacted Eric Hanson, the Medtronic sales representative in Honolulu. He could not immediately confirm whether the rods had been shipped. However, he had implant rods available in Honolulu and offered to personally deliver them to HMC within ninety minutes.

Dr. Ricketson's testimony was that he believed that the delay was too risky for the patient. He proceeded with the surgery, absent the titanium rods. He cut a three to four centimeter section from the shaft of a surgical, stainless steel screwdriver included in the Kit. He then implanted the shaft into Arturo's spine, creating an improvised unilateral rod. The screwdriver shaft was not intended or approved for human implantation.

Following the surgery, HMC personnel did not inform

Arturo that a screwdriver shaft had been implanted in his spine. Dr. Ricketson issued post-operative orders for Arturo to commence physical therapy and begin walking. Sometime during the next day, Arturo likely sustained one or more falls, and the screwdriver shaft shattered. On February 5, 2001, Dr. Ricketson again operated on Arturo in order to remove the screwdriver pieces and implant the proper titanium rods.

Nurse Janelle Feldmeyer (Feldmeyer) had been present during portions of the initial operation and was aware of what Dr. Ricketson had done. She immediately reported the incident to her supervisors. They informed her that it was the surgeon's responsibility to communicate such incidents to the patient. When Dr. Ricketson failed to do so, Feldmeyer resolved to inform Arturo herself. However, she was unable to speak with him because he did not speak English, and the hospital reportedly had posted a security guard at his room.

Feldmeyer made arrangements to discretely obtain the fractured screwdriver shaft after it was removed during the second surgery. After obtaining the shaft, she delivered it to an attorney's office. She then telephoned Rosalinda, Arturo's younger sister and caretaker, and informed her that part of a screwdriver had been implanted into Arturo's back. Rosalinda relayed this information to her brother.

After Arturo was discharged from HMC, his condition steadily worsened. His ability to live independently, ambulate, and care for his personal hygiene declined. He required regular catheterization that had to be performed by close family members or home nursing aides. He was often in great pain; he became depressed, and he reportedly lost the will to keep going. The titanium rods eventually became dislodged and Arturo underwent two further revision surgeries in Honolulu followed by a period of rehabilitation. After the final surgery, his physical condition continued to decline. He underwent permanent catheterization and suffered from multiple bouts of urosepsis (infection of the urinary tract) resulting in multiple hospitalizations and emergency room visits. He became completely bedridden and ultimately passed away on June 18, 2003, from complications of urosepsis.

B. Dr. Ricketson

HMC extends hospital privileges to health care professionals who, through a credentialing process, document their "current professional competence, good judgment, and adequate physical and mental health, and who adhere to the ethics of their respective professions." At the time Dr. Ricketson applied for hospital privileges at HMC, he had a history of serious professional problems. He was subject to professional disciplinary orders in Oklahoma, Texas, and Hawaii based on numerous lapses in judgment, including falsifying medical records, violating state and federal drug laws, abusing his authority to write prescriptions, lying to licensing authorities, and failing to report prior actions against his license. On October 13, 2000, the State of Hawaii had placed Dr. Ricketson on probation for failing to disclose prior disciplinary actions. Despite these serious lapses, HMC granted Dr. Ricketson hospital credentials.

C. Relevant Procedural History

Appellant asserted claims of negligence, negligent credentialing, breach of warranty, and strict liability against the various defendants. Appellant also raised negligence and negligent credentialing claims against non-party Hawaii

Orthopaedics, Inc., a professional corporation that employed Dr. Ricketson. A jury trial took place from February 6 through March 13, 2006. The Circuit Court employed the jury in an advisory capacity with respect to the claims against HMC, pursuant to HRS § 662-5 (1993).*fn2

The jury returned a special verdict finding Medtronic not liable for any of the claims against it. The jury found that both Dr. Ricketson and HMC were negligent, and their negligence was a substantial factor in causing Arturo's harm. The jury apportioned 65% of the fault to Dr. Ricketson and 35% to HMC. It awarded $307,000 in special damages to Arturo's Estate, $1.7 million in general damages to the Estate, and $170,000 in general damages to Rosalinda. It also awarded $3.4 million in punitive damages against Dr. Ricketson individually. The jury did not apportion any of Arturo's harm to pre-existing injuries. The Circuit Court had employed the jury in an advisory capacity with regard to the claims against HMC and declined to follow the jury's determination of damages with respect to those claims. The court determined that Arturo suffered general, unadjusted damages in the sum of $2,000,000. The Circuit Court concluded that HMC and Dr. Ricketson were jointly and severally liable and adopted the jury's apportionment of fault. However, the court found that 75% of the damages were attributable to Arturo's pre-existing medical conditions. Accordingly, the Circuit Court concluded that HMC was only jointly and severally liable for 25% of the total damages found by the court.

The Circuit Court further concluded that HMC was not jointly and severably liable for damages to Rosalinda in her personal capacity for NIED based on HRS §§ 663-10.5 (Supp. 2006) and 663-10.9 (1993 & Supp. 1999), which limit claims for which the state may be held jointly and severally liable. The court reasoned that Rosalinda's claim was derivative of Arturo's injuries and death, and was therefore not within the scope of HRS § 663-10.5 or § 10.9. Accordingly, it limited HMC's joint and several damages to those awarded in favor of Arturo's Estate.*fn3 Finally, Appellant had previously reached a good-faith settlement with Hawaii Orthopaedics, Inc. for $200,000, plus a promissory note, payment of which was contingent on the outcome of Appellant's claims. The Circuit Court concluded that HMC was not entitled to offset its damages by the amount of the settlement pursuant to HRS § 663-15.5 (Supp. 2003). A timely notice of appeal was filed on October 9, 2007. HMC's notice of cross-appeal was filed on October 15, 2007.

II. POINTS OF ERROR

Appellant raises the following contentions in her points of error:

(1) The Circuit Court erred in awarding joint and several damages against HMC in an amount different from those awarded by the jury against Dr. Ricketson;

(2) With respect to Appellant's claims against

Medtronic, the Circuit Court erred in its adoption and/or rejection of certain jury instructions and a special verdict form question;*fn4 and

(3) The Circuit Court erred in failing to hold HMC

jointly liable to Rosalinda for negligent infliction of emotional distress, based on a mistaken interpretation of HRS § 663-10.9; HMC asserts the following points of error on cross- appeal:

(1) The Circuit Court erred in failing to apply HRS § 663-10.5, as amended, which precludes HMC from being held jointly and severally liable in tort; and

(2) If the Circuit Court was correct in holding HMC jointly and severally liable, it erred in failing to offset the judgment by the amount of Hawaii Orthopaedics, Inc.'s good-faith settlement.

III. APPLICABLE STANDARDS OF REVIEW

Statutory interpretation is a question of law reviewable de novo. Lingle v. Hawaii Gov't Emps. Ass'n, Local 152, 107 Hawaii 178, 183, 111 P.3d 587, 592 (2005).

Our statutory construction is guided by the following well established principles: our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.

[The appellate] court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it to discover its true meaning.

Id. (citation, internal quotation marks, brackets and ellipses omitted).

A COL is not binding upon an appellate court and is freely reviewable for its correctness. [The appellate]

court ordinarily reviews COLs under the right/wrong standard. Thus, a COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned.

Chun v. Bd. of Trs. of Employees' Ret. Sys., 106 Hawaii 416, 430, 106 P.3d 339, 353 (2005) (internal quotation marks, citations, and brackets in original omitted).

"The standard of review for a trial court's issuance or refusal of a jury instruction is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." Moyle v. Y & Y Hyup Shin, Corp., 118 Hawaii 385, 391, 191 P.3d 1062, 1068 (2008) (internal quotation marks and citation omitted). "Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not ...


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