Cue THI NGO, AWGELO NGUYEN, ANTHONY NGUYEN, AN VAN NGUYEN, and LEO YOUNG, ESQ., in his capacity as Personal Representative of the Estate of Jennifer Giao Nguyen, Deceased, Plaintiffs-Appellants,
THE QUEEN'S MEDICAL CENTER, a Hawai'i Domestic Nonprofit Corporation; THINH T. NGUYEN, M.D.; THE EMERGENCY GROUP, INC., a Hawai'i Domestic Professional Corporation, Defendants-Appellees, and JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE BUSINESS ENTITIES 1-10, DOE NONPROFIT CORPORATIONS 1-10, and DOE GOVERNMENTAL ENTITIES 1-10, Defendants.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 07-1-0268).
John S. Edmunds Ronald J. Verga Joy S. Omonaka (Edmunds Verga & Omonaka) for Plaintiff-Appellant Leo Young, Esq., in his capacity as Personal Representative of the Estate of Jennifer Giao Nguyen, Deceased.
Michael J.Y. Wong Plaintiffs-Appellants CUC Thi Ngo, Angelo Nguyen, Anthony Nguyen, An Van Nguyen.
Edmund Burke Jan M. Tamura John Reyes-Burke (Burke McPheeters Bordner & Estes) for Defendants-Appelleess Thinh T. Nguyen, M.D. and The Emergency Group, Inc.
Nakamura, C.J., Foley and Ginoza, JJ.
Plaintiffs-Appellants Cue Thi Ngo, Angelo Nguyen, Anthony Nguyen, An Van Nguyen, and Leo Young, Esq., in his capacity as Personal Representative of the Estate of Jennifer Giao Nguyen, Deceased (Plaintiffs) appeal from the July 28, 2009' Final Judgment entered in the Circuit Court of the First Circuit. In this medical malpractice action, Plaintiffs sued Defendants-Appellees Thinh Nguyen, M.D. (Dr. Nguyen) and the Emergency Group, Inc. (collectively, Defendants) for negligence and failure to obtain informed consent related to the death of Jennifer Nguyen . (Jennifer).
On appeal, Plaintiffs contend the circuit court erred by:
(1) granting Defendants' motion for judgment as a matter of law (Motion for Judgment) because Plaintiffs' expert witness testimony supported their informed consent claim;
(2) refusing to permit Plaintiffs to amend their pleadings to conform to evidence adduced during trial to allege a civil battery claim, and consequently (a) failing to grant Plaintiffs' motion for judgment as a matter of law on their claim for medical battery and (b) failing to allow Plaintiffs' medical battery claim to go to the jury; and
(3) denying Plaintiffs' motion for a new trial.
1. Jennifer's Death
On Thursday, February 12, 2 0 04, Jennifer, age 9, went with her mother, Cue Thi Ngo (Mother) to see Jennifer's family physician, Tyronne Dang, M.D. (Dr. Dang) because Jennifer had an ear infection and diarrhea. Dr. Dang gave Jennifer the antibiotic Amoxicillin for her ear infection and instructed the family to call him on Saturday, February 14, 2004. Dr. Dang did not receive any calls from the family on Saturday. Dr. Dang told the Ngo family that he would be moving offices that weekend and to call the Physician's Exchange number to obtain medical care. On Friday, February 13, Jennifer again experienced diarrhea and vomited. Jennifer's father, An Van Nguyen (Father) drove Jennifer, Mother, and Jennifer's two brothers, Angelo Nguyen (Angelo) and Anthony Nguyen (Anthony), to the Queen's Medical Center (QMC) emergency room. Anthony, Mother, Father, and Jennifer first spoke to a QMC nurse and then met Defendant Thinh T. Nguyen, M.D. (Dr. Nguyen). Both Jennifer and Anthony could speak English. Mother and Father are not as fluent in English as Anthony. Anthony served as an interpreter for Dr. Nguyen and his parents while Jennifer was in the hospital.
A nurse and Dr. Nguyen asked Jennifer if she was taking any medications and Jennifer told them that she was not. Because Jennifer was overweight, Dr. Nguyen tested her for diabetes. The test results were negative. Based on his physical examination and other test results, Dr. Nguyen diagnosed Jennifer with viral gastroenteritis (inflammation of the gastrointestinal tract), which indicated some type of infectious process. He conducted an orthostatic hypertension test, which indicated that Jennifer was dehydrated. Dr. Nguyen administered Jennifer fluids and ten milligrams of Reglan, an anti-emetic drug (drugs used to treat nausea), by intravenous therapy (IV). Mother, Father, and Anthony were in the room with Jennifer, and all of them testified that they witnessed the IV in Jennifer's arm. While Mother testified she was aware that Jennifer received medicine, both father and Anthony testified they did not notice the introduction of IV drugs.
Mother' testified that Jennifer vomited and passed diarrhea near the end of the IV administration; but did not notify the nurse or Dr. Nguyen that this occurred. After the IV was administered, Jennifer said that she felt better, and the nurse gave Jennifer a "by mouth" or "per oral" (PO) challenge, which consists of the oral ingestion of water and crackers or chips. Jennifer passed the PO challenge as she did not vomit or pass diarrhea.
Dr. Nguyen and the nurse told the family to bring Jennifer back to the emergency room if the symptoms got any worse. Dr. Nguyen specifically told the family that if Jennifer had any stomach pain she should be returned to the hospital. Dr. Nguyen also instructed the family to take Jennifer to see Dr. Dang on the following Monday. Dr. Nguyen prescribed Jennifer pills of Reglan to take at home. It is undisputed that Dr. Nguyen did not warn the family about any risks or side effects of Reglan.
The family also received discharge instructions, which stated that if there should be any problems before their appointment with Dr. Dang on Monday, they should call a number listed for QMC. The discharge instructions included Dr. Dang's number. The discharge instructions also instructed the family to return Jennifer to the emergency room if they were concerned, if Jennifer's symptoms got worse, or if Jennifer showed any signs of dehydration. An emergency room attending physician from the Kapi'olani Medical Center for Women and Children's pediatric intensive care unit treated Jennifer on the day she died and stated that Jennifer had been complaining about abdominal pain at home for two days preceding her cardiac arrest.
After Jennifer and the family returned home from QMC, Anthony called QMC three times - once on Friday night, once early Saturday morning, and a third time Saturday night. During each call, he informed the QMC staff person that Jennifer was still vomiting and passing diarrhea and each time the QMC staff person told Anthony to let the medicine work, and to follow up with Jennifer's doctor on Monday. The family testified Jennifer had the same symptoms on Friday evening and Saturday (vomiting and diarrhea), and that the symptoms did not get any better or any worse. At 3:00 a.m. on Sunday morning, Jennifer woke up and said she was having trouble breathing. Father gave her some water, and she felt better approximately one minute later. On Sunday morning, around 7 a.m., Jennifer became unconscious. An ambulance took Jennifer to Pali Momi Medical Center and then to Kapi'olani Medical Center for Women and Children, where Jennifer died.
The family did not allow an autopsy to be performed on Jennifer. The death certificate, signed by Dr. Dang, stated the cause of Jennifer's death was cardiac arrest due to, or as a consequence of, hypovolemic shock (where severe blood and fluid loss make the heart unable to pump enough blood to the body).
2. Testimony of Gary Leroy Towle, M.D. (Dr. Towle)
Plaintiffs called Dr. Towle to testify as to whether Dr. Nguyen met the standard of care in his treatment of Jennifer and to material risks of Reglan. Dr. Towle testified, inter alia, that in treating Jennifer, Dr. Nguyen breached the standard of care several times. Dr. Towle testified the Reglan manufacturer's insert in effect in 2004 stated that the " [s]afety and effectiveness in pediatric patients has not been established" and that "[t]he safety profile of [Reglan] in adults cannot be extrapolated to pediatric patients."
Dr. Towle testified about other drugs that are safer than Reglan for treating nausea and vomiting in children. Under the circumstances presented by Jennifer's case, he said he would have used Phenergan or Zofran rather than Reglan, because those drugs had been approved for pediatric patients in 2004. Dr. Towle testified that a reasonable physician treating Jennifer in 2004 would have been aware that Zofran and Phenergan were approved by the Food and Drug Administration (FDA) and on the market. He stated, "[t]he problem with Reglan is that one of the ways it works is it increases the motility of the stomach and small intestine. In other words, it gets it going, it gets things flowing through it."
On cross-examination, Dr. Towle testified, "one of the side effects for all of the anti-emetics is possible diarrhea." Dr. Towle further testified to diarrhea as a risk of Reglan's role in increasing gastric motility:
[Plaintiffs' counsel:] Now you talked about risks with Reglan, about increasing gastric motility?
[Dr. Towle:] Yes.
[Plaintiffs' counsel:] Could you explain that a little more?
[Dr. Towle:] Well, one of the ways Reglan works is that it gets the pylorus, or the sphincter between the stomach and small intestines, to relax and open up and allow the contents of the stomach to pass through to the small intestine.
[Plaintiffs' counsel:] Would you look please at the exhibit before you under Contraindications on the first page. You see where it says "metoclopramide should not be used whenever stimulation of gastrointestinal motility might be dangerous"?
[Dr. Towle:] Yes.
[Plaintiffs' counsel:] Is that what you're talking about?
[Dr. Towle:] Yes.
[Plaintiffs' counsel:] And in this case, in Jennifer's case, was increasing or stimulating gastrointestinal motility as she was sent home from the hospital something that you wanted or didn't want?
[Dr. Towle:] Well, it -- it could increase her diarrhea. It doesn't directly affect the lower intestine so it's not going to cause diarrhea in and of itself. But if you're emptying the stomach and you're dumping things into the small intestine, it kind of gets the intestines going and diarrhea is one of the more common side effects with Reglan.
Dr. Towle could not say to a reasonable degree of medical probability that Reglan had caused harm. In response to questions about Reglan's increase of the risk of harm, Dr. Towle testified:
[Plaintiffs' counsel:] Now let's go back to the Reglan. Am I correct that in your opinion that -- you've told us it shouldn't have been given to her but it was given. To a reasonable medical probability, do you believe it increased the nausea and diarrhea?
[Dr. Towle:] I can't say that.
[Plaintiffs' counsel:] Can't say. All right. Do you believe it had any side effects that were of consequence to this girl?
[Dr. Towle:] I can't say one way or the other.
[Plaintiffs' counsel:] Were there risks to giving it of which the parents should have been warned? You say it shouldn't have been given so - -
[Dr. Towle:] Yeah.
[Plaintiffs' counsel:] It's a little hard to talk about. If you do give it, you warn of the risks?
[Dr. Towle:] It's like asking what's the dose of some medicine you're not supposed to give. I can't answer that.
The circuit court asked Dr. Towle to clarify his opinion on Reglan's material risks:
[circuit court:] You were asked, I believe, by one of the counsel as to whether in your opinion the material risks of giving the Reglan to this girl in the [emergency room] in this situation should have been disclosed to the parents and I heard you say, I can't answer that because your opinion basically is it should not have been given, period?
[Dr. Towle:] Correct.
[circuit court:] So do I understand you correctly that your opinion is that Reglan, giving the Reglan was a breach of the standard of care, should not have been given no matter what; is that what you're saying?
[Dr. Towle:] Should not have been given no matter what in these circumstances.
[circuit court:] In these circumstances?
[Dr. Towle:] Yes, yes.
[circuit court:] So that, and again I don't want to put words in your mouth, but as I understand your opinion, your answer to the question of, well, shouldn't the risks have been explained to the parents, as I understand your opinion, you don't even get to that, you can't answer that one way or the other, you don't even get to that in your mind because it shouldn't have been given in the first place?
[Dr, Towle:] That's correct.
3. Testimony of James D. Gallup, M.D. (Dr. Gallup)
The circuit court precluded Plaintiffs' expert witness, pathologist Dr. Gallup from testifying as a standard of care witness in this case. The circuit court limited Dr. Gallup's testimony on the mechanism and effects of Reglan. Plaintiff's counsel assented; stating Dr. Gallup was offered "solely on the issue of whether Reglan was a causative agent in Jennifer's death[.]”
Dr. Gallup testified on the effects of Dr. Nguyen's IV administration of ten milligrams of Reglan to Jennifer:
[Plaintiffs' counsel:] Okay. Do you have an opinion as to what effect, if any, that injection intravenously of the ten milligrams of Reglan had on Jennifer's system?
[Dr. Gallup:] Yes, I do.
[Plaintiffs' counsel:] Can you explain ...