APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 06-1-1654) DECEMBER 31, 2 013
Kendall H. Moser, Deputy Attorney General, (Mark J. Bennett, Attorney General, and Caron M. Inagaki, Deputy Attorney General, with her on the briefs) for Defendants-Appellants.
Richard Turbin and Janice D. Heidt (Rai Saint Chu and Francis L. Jung with them on the briefs) for Plaintiff-Appellee.
NAKAMURA, CHIEF JUDGE, FUJISE AND LEONARD, JJ.
Defendants-Appellants State of Hawai'i (State), Department of Public Safety (DPS), Halawa Correctional Facility (HCF), Dr. Salvatore Abbruzzese (Dr. Abbruzzese), and Dr. Sisar Paderes (Dr. Paderes) appeal from the November 12, 2009 Final Judgment entered by the Circuit Court of the First Circuit (Circuit Court) on, inter alia, the Circuit Court's March 12, 2009 order denying Dr. Abbruzzese and Dr. Paderes's motion for summary judgment, and the court's findings of fact (FOFs) and conclusions of law (COLs), which were entered after a bench trial in this case. In the Final Judgment, the Circuit Court entered judgment in favor of Plaintiff-Appellee Gregory Allen Slingluff (Slingluff), with respect to Counts I through IV of Slingluff's Complaint, and against the Defendants-Appellants,  relating to Slingluff's claims of negligence on the part of the Defendants-Appellants. The Circuit Court entered judgment in favor of the Defendants-Appellants and against Slingluff on Counts V and VI of Slingluff's complaint, including Slingluff's claims of informed consent and deliberate indifference. The Circuit Court awarded Slingluff $983, 395.29, including special damages, general damages, and costs.
In this appeal, Dr. Abbruzzese and Dr. Paderes argue that because they are State-employed physicians, they are shielded from Slingluff's medical malpractice claims by the doctrine of qualified immunity. As discussed below, we hold that physicians employed by the State, including prison doctors, exercising purely medical discretion in the diagnosis and treatment of potentially injured or sick people, are not protected from medical malpractice claims by the doctrine of qualified immunity under Hawai'i law. In this case, although Dr. Abbruzzese and Dr. Paderes were exercising professional judgment and discretion, their actions in diagnosing and treating Slingluff were medical, not governmental. Therefore, their actions were not protected by a qualified immunity. In addition, for the reasons set forth herein, we reject the Defendants-Appellants ' contention that the Circuit Court clearly erred in finding that their negligence caused Slingluff's infertility.
The Circuit Court's FOFs are unchallenged on appeal, except with respect to the cause of Slingluff's loss of fertility. The FOFs are the basis for the following background facts.
In September 2003, Slingluff was residing in the High module of HCF. During this time, a doctor regularly visited the High module of HCF every Tuesday. September 9, 2003, was a Tuesday.
Slingluff testified that, on Thursday, September 11, 2003, he complained about scrotal pain to Dr. Patel but the doctor did not examine him.
On Saturday, September 13, 2003, Slingluff saw a nurse regarding a three centimeter by three centimeter left scrotal abscess. He reported that his scrotal abscess started two days before as a small cyst. He grimaced in pain upon palpitation and was waddling in pain. The nurse contacted Dr. Paderes, who prescribed the antibiotic Keflex.
On Monday, September 15, 2003, Slingluff went to "the gate" within the module for medication. His scrotum, which was red and grapefruit-sized, caused him apparent discomfort. The nurse contacted Dr. Abbruzzese who prescribed a painkiller, Vicodin, and said that he should be seen in the clinic the next day.
On Tuesday, September 16, 2003, Slingluff again went to "the gate" in obvious discomfort. He was seen by Dr. Paderes who ordered him to the infirmary. Slingluff was taken to the infirmary in a wheelchair and started on 500 milligrams of the antibiotic Ancef. He was oozing blood and pus from his infection and again given Vicodin. Slingluff reported that his infection started six days before. That night, a nurse noted that Slingluff's scrotum was "grossly swollen, the size of a very large grapefruit . . . [, he] was pale, appeared in severe pain, and he was limited in his ability to move about." Dr. Saldana then ordered a urological consultation.
On Wednesday, September 17, 2003, Slingluff's scrotum, which was now the size of a melon, was described as "swollen, purplish in color, [and] draining purulent fluid." Slingluff was taken to a urologist's office in a wheelchair where the urologist performed an incision and drainage (I & D). A scrotal ultrasound performed at this time indicated that Slingluff's infection was "suspicious of Fournier's gangrene."
Slingluff underwent a total of six surgeries, including the I & D on September 17, 2003. The surgeries subsequent to the I & D included: (1) on September 18, 2003, the "debridement of his scrotum"; (2) on October 14, 2003, the "debridement of his scrotal area and covering with thigh flaps"; (3) on October 23, 2003, the "debridement of necrotic scrotal flaps and closure of the thigh donor site"; (4) on October 29, 2003, the "debridement of his scrotum, with delayed primary closure"; and (5) on November 14, 2003, the "debridement of the thigh flap." Slingluff remained at Queens Medical Center until November 30, 2003, before returning to HCF.
Slingluff's Complaint includes six counts: (1) Negligent Care and Treatment (Count I); (2) Respondeat Superior and Agency (Count II); (3) Breach of Warranties (Count III); (4) Negligent Actions or Inactions (Count IV); (5) Informed Consent (Count V); and (6) Deliberate Indifference (Count VI). As found by the Circuit Count, Counts I through IV are basically medical malpractice claims.
On January 23, 2009, Dr. Abbruzzese and Dr. Paderes moved for summary judgment, arguing that they have qualified immunity from Slingluff's claims. The Circuit Court denied Dr. Abbruzzese and Dr. Paderes's motion on March 10, 2009. The court then conducted a bench trial on Slingluff's claims, hearing testimony and taking evidence from September 1, 2009 through September 4, 2009. The court announced its decision orally on September 17, 2009 and issued its FOFs and COLs, along with the Final Judgment, on November 12, 2009.
The Circuit Court found, inter alia, that on September 13, 2003, "the proper dose of antibiotic was not given and this fell below the applicable standard of care." The choice of antibiotic, however, "did not fall below the standard of care." The Circuit Court also found that Slingluff "should have been seen before September 15, 2003, or at the latest September 16, 2003, for an [I & D] of the abscess, and that delay in treatment fell below the standard of care." The Circuit Court further found that both the prescription of Ancef on September 16 and 17, 2003, and the dose it was prescribed in, fell below the applicable standard of care and that the antibiotic should have been changed to a "different group or family when it was apparent that the original antibiotic was not working."
The Circuit Court ultimately found that the Defendants-Appellants' negligence was "the direct and proximate cause of Plaintiff's injuries and damages." The Circuit Court further found, inter alia, that as a result of the Defendants-Appellants' negligence, Slingluff suffered damages of "six surgeries . . ., amputation of his scrotal sac, multiple skin grafts . . ., hospitalization for two months, infertility, loss of production of male hormones, painful sexual erections, " that Slingluff will further suffer future damages from the surgical removal of his skin tabs and surgical reconstruction "in order to get testicular function back, " and that Slingluff has suffered lost earnings, and will suffer future lost earnings, as well as future medical costs.
As a result of the injuries caused by the Defendants-Appellants' negligence (Counts I through IV), Slingluff was awarded $306, 188 for "the present value of Plaintiff's past and future lost earnings, " and $326, 712 for "the present value of Plaintiff's future medical costs." Slingluff was also awarded $300, 000 for his "past and future pain and suffering, mental anguish and disfigurement." Finally, the Circuit Court also awarded Slingluff $50, 495.29 after granting Slingluff's motion for taxation of costs.
The Circuit Court entered judgment in favor of Defendants-Appellants on Count V because Slingluff "failed to prove, by a preponderance of the evidence, this count of the Complaint." The Circuit Court also entered judgment in favor of Defendants-Appellants' on Count VI because the Defendants-Appellants "did ...