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Castro v. Melchor

Intermediate Court of Appeals of Hawaii

January 29, 2016

LEAH CASTRO, individually and as PERSONAL REPRESENTATIVE of the ESTATE OF BRIANDALYNNE CASTRO, deceased minor, Plaintiff-Appellee,
LEROY MELCHOR, in his official capacity; WANNA BHALANG, in her official capacity; TOMI BRADLEY, in her official capacity; STATE OF HAWAI'I; and HAWAII DEPARTMENT OF PUBLIC SAFETY, Defendants-Appellants, and AMY YASUNAGA, in her official capacity; ROBERTA MARKS, in her official capacity; KENNETH ZIENKIEWICZ, M.D., in his official capacity; and KEITH WAKABAYASHI, in his official capacity, Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants


Marie Manuele Gavigan, Henry S. Kim, Deputy Attorneys General, for Defendants-Appellants.

Sue V. Hansen, Charles W. Crumpton, (Crumpton & Hansen), for Plaintiff-Appellee




Defendants-Appellants Leroy Melchor (Melchor), Wanna Bhalang (Bhalang), Tomi Bradley (Bradley), the State of Hawai'i, and the Hawai'i Department of Public Safety (DPS) (collectively, the State), appeal from the Circuit Court of the First Circuit's (Circuit Court's) Judgment Pursuant to Findings of Fact, Conclusions of Law and Order (Judgment) filed on July 31, 2012, and challenge the Circuit Court's Findings of Fact and Conclusions of Law and Order filed May 14, 2012 (FOF, COLs and Order) .[[1]]

This wrongful death action arose out of the allegedly inadequate medical care provided to Plaintiff-Appellee Leah Castro (Castro) while she was incarcerated at the Oahu Community Correctional Center (OCCC). After a non-jury trial, the Circuit Court found that Castro's baby, Briandalynne Castro (Briandalynne), was stillborn as the result of the State's negligence. Castro was awarded $250, 000 in damages for negligent infliction of emotional distress (NIED) and $100, 000 for loss of filial consortium, and Briandalynne's estate was awarded $250, 000 for, inter alia, the loss of enjoyment of life.

On appeal, the State argues, inter alia, that: a wrongful death claim may not be brought on behalf of an unborn fetus under Hawai'i's wrongful death statute; the Circuit Court erred by finding that the State was negligent and that its negligence was the legal cause of Briandalynne's death; and that even if negligence has been proved, the damages awarded were speculative and improper. We affirm.


A. Procedural History

On July 30, 2009, individually and as the personal representative of Briandalynne's estate, Castro filed her First Amended Complaint[2] against the Defendants-Appellants, as well as Amy Yasunaga (Yasunaga), Roberta Marks (Marks), Kenneth Zienkiewicz (Zienkiewicz), and Keith Wakabayashi (Wakabayashi), in their official capacities. Count I of the complaint alleged that Melchor, Bhalang, Bradley, and Yasunaga, who were nurses at OCCC, failed to provide proper medical care to Castro and Briandalynne. The State of Hawai'i and DPS were alleged to be negligent in training, supervising, and/or retaining their defendant employees, and also vicariously liable for their negligence as they were acting within the scope and course of their employment. Count I also alleged that the defendants' negligence and/or gross negligence was the legal cause and/or substantial factor in Briandalynne's death and Castro's mental and emotional distress. Count II alleged intentional and negligent infliction of emotional distress to Castro by all defendants except the State of Hawai'i and DPS.

On March 24, 2011, the defendants filed a motion for summary judgment. On October 14, 2011, the Circuit Court entered an Amended Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (Amended Summary Judgment Order).[3] The court granted summary judgment as to all claims against Yasunaga, Marks, Zienkiewicz, and Wakabayashi, but denied summary judgment in all other respects. A jury-waived trial began on February 27, 2012.

B. Testimony at Trial

1. Castro's pregnancy, incarceration and stillbirth

Castro was pregnant when she entered OCCC as an inmate on May 29, 2007.[4] She had not previously received any prenatal care and admitted to using "ice" during the first two months of her pregnancy. According to Castro, the baby's father was Castro's biological father. Castro had never been pregnant before. When she was admitted to OCCC, she did not immediately tell OCCC's medical unit that she was pregnant. Castro said her reason for not revealing her pregnancy was that it was embarrassing. It appears from her testimony that she also felt pressure from police officers and inmates who were friends with her father to not reveal the pregnancy.

On June 29, 2007, Castro was transferred to the Federal Detention Center (FDC) where a pregnancy test revealed her pregnancy. As the FDC would not house pregnant inmates, Castro was sent back to OCCC. On July 2, 2007, she saw Yasunaga, a nurse at OCCC. Yasunaga testified that she referred Castro to Kapiolani Medical Center for prenatal care and for an ultrasound. However, although she was transported to Kapiolani, Castro was told that her appointment had been cancelled. To her knowledge, another appointment was never scheduled.

After she had been sent back to OCCC from the FDC, Castro was placed in what was known as a lockdown cell. While in lockdown, Castro began to experience spotting and what she described as light pinkish discharge. She asked Adult Corrections Officer (ACO) Hattie Reis (Reis) if bleeding or spotting during pregnancy was normal. Castro stated "to my understanding from what ACO Hattie told me was that medical had said that only if I was bleeding I guess more and if I was cramping then to notify them again." Castro estimated that she talked to Reis about three times about her bleeding. Each time she spoke to Reis, Reis would tell her that Reis had spoken to a nurse and "it was the same, same response. 'Is the pad saturated?'" Castro did not receive medical care after speaking with Reis for the third time.

Castro also asked ACO Wanda Nunes (Nunes) if her bleeding was normal. Castro testified that the response that Nunes related from the medical unit was "that if the pad wasn't completely saturated, or in her words, if I wasn't bleeding more or cramping, then . . . medical was not going to take me."

After speaking to Nunes, Castro told ACO Reyetta Ofilas (Ofilas) about her bleeding "once or twice". Ofilas asked her if she was cramping and if the pad was saturated, which Castro understood to be questions coming from the medical unit. No medical care was provided through Ofilas.

Describing her bleeding, Castro said that "the spotting started getting excessive probably about a week after of just spotting. And then it was blood. And then about a week before I got transferred to [Women's Community Correctional Center (WCCC)] it went back to spotting again."

While she was bleeding, Castro had been to the medical unit of OCCC for a medication called Seroquel which she took for post-traumatic stress disorder (PTSD) and anxiety. She did not tell her psychiatrist or psychologist about her bleeding. Nor did she tell the nurse who delivered Seroquel to her cell about her bleeding.

Castro was transferred to the women's prison, WCCC, on August 2, 2007. She was housed in the segregation area. Her bleeding had stopped by the time she went to the WCCC, but she was still experiencing discharge. However, by the third day after she arrived at the WCCC, Castro's stomach felt hard, she could not feel the baby kicking, and she felt sick after eating. Castro used an intercom to call an ACO named "Sula" and told her that her baby had not been moving for about three days. A nurse came to see Castro and told her a midwife would be seeing her on Friday. The interaction with the nurse occurred on a Tuesday or Wednesday.

Castro was seen on that Friday and was told that her baby's heartbeat could not be found and she needed to be taken to the hospital immediately. The midwife who saw her, Joann Amberg (Amberg) testified that this visit occurred on August 10, 2007. Castro was rushed to the hospital where she learned that her baby was dead. Labor was induced and Castro gave birth to a stillborn baby. An autopsy authorization shows that the stillbirth occurred on August 11, 2007.

2. The expert testimony

Dr. Jeffrey Killeen (Dr. Killeen) was qualified as an expert in anatomic and clinical pathology. Dr. Killeen performed an autopsy on Briandalynne on August 14, 2007. Dr. Killeen reported that no "gross congenital anomalies" were found during the autopsy. He stated that in "[s]omewhere between probably 25 and 50 percent of [stillbirth] cases you can't find a specific cause of death." In this case, he did not have a "specific cause of death" but could come up with a "likely scenario" meaning a cause of death that was at least 51% likely. His opinion was that the likely cause of death was an abruption, meaning "a separation of the placenta from the uterus so that there is a -kind of a disconnect between the maternal blood supply and placental nutrition from the maternal circulation." He concluded that an incestuous or consanguineous partnership was "a complete non-factor in the death of the fetus."

Dr. Killeen estimated that the age of the fetus was thirty-five to thirty-seven weeks. With regards to the time of death, Dr. Killeen opined: "[I]t appeared that it was most likely that the fetus had been dead at least 96 hours, very likely at least one week but very likely less than two weeks at the time from fetal death to delivery."

Dr. Theodore Hariton (Dr. Hariton) was qualified as an expert in obstetrics and gynecology. He opined that "the prenatal care that Ms. Castro got was totally inadequate and below the standard of care." He identified two instances where the standard of care was not met: first, "the initial July 2nd visit with the nurse practitioner in which she did not do a prenatal exam" and second, "when [Castro] had the bleeding episodes in the last week or so of July, . . . she reported to the guards, the guards reported to the medical facility, and no action was taken."

With regards to the first instance, Dr. Hariton stated that if a complete exam had been done and ultrasounds and a prenatal lab had been completed, "this case should have been classified as a high risk pregnancy . . . she would have had an excellent chance of having a good baby." As to the second instance, "[p]robably at least July 25th or later the baby could have been saved if she had had an obstetrical consultation." Dr. Hariton was asked: "Had the medical personnel at [OCCC] followed the standard of care under these circumstances, would that have prevented the baby's death?" Dr. Hariton replied: "Yes."

Dr. Hariton opined that the "medical cause of death was placental insufficiency. The placenta was no longer able to carry the pregnancy. It didn't have enough oxygen or nutrition for the baby to survive." He further stated: "Why wasn't it supplying it? . . . [T]hat would be a placental separation of some sort." Responding to Dr. Greigh Hirata's (Dr. Hirata's) opinion that "the death could be because of incest, " Dr. Hariton stated "there's no medical evidence for that anywhere. I've not only reviewed the literature, I've gone to medical libraries, I've gone to perinatologists, gone to colleagues, and nobody's ever heard of a stillbirth related to incest."

Dr. Hirata was qualified as an expert in obstetrics and gynecology, in the area of maternal fetal medicine, and in medical genetics. His opinions were formed after reviewing Castro's medical records, depositions from various "people involved in the correctional facility, " and letters from other expert witnesses. Dr. Hirata disagreed with Dr. Hariton's opinion that "had an obstetric consult and ultrasound been accomplished after the initial visit on July 2nd of 2007, [Castro] would have been treated as a high risk pregnancy and would have had a successful delivery." He also testified that while it is possible to detect abruptions on ultrasounds, "most abruptions are not detectable on ultrasound." Dr. Hirata "found no evidence in the review of [Castro's] records that she had an abruption."

As to the cause of the stillbirth, Dr. Hirata opined "based on the exclusion of all the other common causes of still birth, the most likely cause would be a result of the consanguineous pregnancy." He testified that:

There is an article from the American Journal of Human Genetics that looked at the outcomes of patient - of offspring from related couples. And in patients and offsprings of a father-daughter, or mother-son, or brother-sister relationship, a first degree relative, it's estimated that 32 percent of patients that were delivered alive . . would have either passed away, or would have significant mortality and morbidity. . . . So if I would assume, like every other model with genetic disorders, that it's probably worse, a higher loss rate before delivery than after birth.

Dr. Hirata believed that the OCCC health unit met the standard of care as to Castro.

C. The Circuit Court's Rulings

The Circuit entered the FOFs, COLs and Order on May 14, 2012. The court found that the State had been negligent by breaching the applicable standards of care as to Castro and that its negligence was the legal cause of death of the baby and Castro's injuries and damages. The court awarded Castro $250, 000 in damages for NIED and $100, 000 for loss of filial consortium. Briandalynne's estate was awarded $250, 000 in damages for loss of life and for all of the damages she would have been entitled to had she been alive, including the loss of enjoyment of life. The Judgment was filed on July 31, 2012, and the State timely appealed on August 29, 2012.


The State alleges the following points of error on appeal:

(1) The Circuit Court clearly erred in FOFs 12, 15-17, 28, and 29, because the court found that the State did not follow DPS and OCCC policies and procedures for medical care for segregated inmates;

(2) The Circuit Court clearly erred in FOFs 23-25, 27, 31, and 41-50, and COLs 70-74, because the Circuit Court found that the State was negligent and there was no credible evidence as to the cause of death of the baby or that she could have survived even if she had been born alive; in addition, there was no credible evidence to support FOF 56 that the fetus was normal;

(3) The Circuit Court erred in its award of damages to Briandalynne's estate because Castro had not pled a surviving negligence claim on behalf of the estate; in addition, even if a claim was properly raised, there was no credible evidence that the fetus was viable and/or had a right to bring a negligence claim;

(4) The Circuit Court clearly erred in FOFs 60, 61, 63, 64, and 66, and COLs 77 and 81-83, insofar as the court awarded damages because causation was not proved and/or the damages awarded were speculative and improper; and

(5) The Circuit Court erred in denying the State's motion for summary judgment as to claims on behalf of Briandalynne's estate because a fetus is not a "person" under Hawai'i's wrongful death statute.


"In this jurisdiction, a trial court's FOFs are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed." Chun v. Bd. of Trs. of the Emps' . Ret. Sys. of the State of Hawai'i, 106 Hawai'i 416, 430, 106 P.3d 339, 353 (2005) (citations and internal quotation marks omitted) (quoting Allstate Ins. Co. v. Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104 (2004)). "An FOF is also clearly erroneous when the record lacks substantial evidence to support the finding. [The Hawai'i Supreme Court has] defined 'substantial evidence' as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Leslie v. Estate of Tavares, 91 Hawai'i 394, 399, 984 P.2d 1220, 1225 (1999) (citations, internal quotation marks, and brackets omitted) (quoting State v. Kotis, 91 Hawai'i 319, 328, 984 P.2d 78, 87 (1999)).

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. However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case.

Chun, 106 Hawai'i at 430, 106 P.3d at 353 (citations, internal quotation marks, and brackets omitted) (quoting Allstate Ins. Co. V. Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104 (2004).

"On appeal, the grant or denial of summary judgment is reviewed de novo." Nuuanu Valley Ass'n v. City & Cnty. of Honolulu, 119 Hawai'i 90, 96, 194 P.3d 531, 537 (2008) (citations omitted).


A. Wrongful Death of an Unborn, ...

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