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Lunsford v. Surgical Associates, Inc.

Intermediate Court of Appeals of Hawaii

July 19, 2013

SUSANNE M. LUNSFORD, Individually and as Personal Representative of the Estate of BRIAN F. MCVEY, Deceased, Plaintiffs-Appellants,
v.
SURGICAL ASSOCIATES, INC.; FONG-LIANG FAN, M.D.; JOSE A. GANEL, M.D., Defendants-Appellees,
v.
and DOES 1-100, Defendants

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE. FIRST CIRCUIT (CIVIL NO. 09-1-2310).

Dennis W. King William J. Deeley Aaron Loeser (Deeley King Pang & Van Etten) for Plaintiffs-Appellants.

Arthur F. Roeca April Luria Jodie D. Roeca (Roeca Luria Hiraoka) for Defendant's-Appellees.

Foley, Presiding J, , Leonard and Reifurth, JJ.

MEMORANDUM OPINION

In an appeal arising out of alleged negligence in obtaining informed consent, Plaintiffs-Appellants Susanne M. Lunsford (Lunsford) and Brian F. McVey (McVey) (collectively, Plaintiffs) appeal from the February 1, 2012 judgment and the April 12, 2012 "Order Denying Plaintiffs' Motion For Judgment As A Matter Of Law Notwithstanding The Verdict And For New Trial On Damages (Filed February 13, 2012)" entered in the Circuit Court of the First Circuit[1] (circuit court). The judgment followed a jury verdict in favor of Defendants-Appellees Surgical Associates, Inc., Fong-Liang Fan, M.D. {Dr. Fan), and Jose A. Ganel, M.D. (Dr. Ganel) (collectively. Defendants).

I. BACKGROUND

McVey was born in 1973 and was diagnosed with type 1, insulin-dependent diabetes when he was nine years old. McVey's kidneys failed in 1996, after which he required dialysis sessions three times a week. As a dialysis patient, McVey needed continued vascular access through which dialysis therapy could be delivered.

Three primary methods are used to gain access to a patient's circulation: an intravenous catheter, an arteriovenous (AV) graft, or an AV fistula. In 1997, Dr. Fan placed the first access site, an AV graft on McVey's left forearm. From then until June 2007, with Dr. Fan as his vascular surgeon, McVey underwent over forty surgical procedures to gain or maintain access sites for dialysis. McVey received additional AV grafts as well as AV fistulas and catheters.

On March 1, 2007, McVey felt a blister on the AV graft on his left leg, which at the time was being used as a permanent access site. On March 13, 2007 McVey visited Dr. Fan, who informed McVey that the poking of dialysis needles had caused a pseudoaneurysm at the graft site. Dr. Fan recommended McVey undergo surgery to treat the pseudoaneurysm. McVey agreed and received surgery on March 16, 2007.

A few days later, McVey's nephrologist, Dr. Ganel, informed McVey the left leg AV graft site was failing. McVey's mother, Lunsford, called Dr. Fan, and Dr. Fan informed her that despite the repair to the pseudoaneurysm, the site could fail at any time. Dr. Fan then recommended placing an access site on McVey's right leg so that McVey would have a site available when the left site failed. Dr. Fan did not mention any other options or alternatives to Lunsford or McVey. McVey signed a form consenting to the surgery, and on March 21, 2007, Dr. Fan placed an AV graft in McVey's right leg. This procedure became the subject of this appeal.

On May 22, 2007, McVey was admitted to the emergency room with a fever and with bleeding from the AV graft on his left leg. Dr. Fan conducted ligation surgery on the site that day, tying a suture around the AV graft. McVey then moved to Texas in June 2007, where he continued receiving treatment and underwent further surgical procedures.

On October 5, 2009, Plaintiffs filed a complaint in the circuit court alleging in relevant part that Defendants had been negligent in obtaining informed consent from McVey for the March 21, 2007 surgery. Lunsford also raised derivative claims of loss of consortium and negligent infliction of emotional distress.

On November 16, 2011, following trial, the jury returned a verdict in Defendants' favor, determining in relevant part that Dr. Fan did not breach his duty to obtain informed consent from McVey. Consequently, the jury did not reach the questions regarding Plaintiffs' damages and Lunsford's derivative claims. On February 1, 2012, the circuit ...


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