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Ditto v. McCurdy

6/9/1997

OPINION OF THE COURT BY KIRIMITSU, J.


In this medical malpractice case, defendant-appellant Dr. John A. McCurdy, Jr. (Dr. McCurdy) appeals from the First Circuit Court's initial judgment, dated July 7, 1992; the order denying Dr. McCurdy's motion for judgment notwithstanding the verdict (JNOV) dated July 20, 1992; the order granting in part plaintiff-appellee Janie Ditto's (Ditto) motion for prejudgment interest dated September 1, 1992; the order denying Dr. McCurdy's motion for reconsideration of the supplemental judgment for prejudgment interest dated August 3, 1993; the supplemental judgment for prejudgment interest and costs dated September 17, 1992; the order vacating the judgment in favor of Karla Scarpiova (Scarpiova) and confirming the judgment in favor of Dr. McCurdy dated November 6, 1992; and the August 9, 1993 amended judgment awarding compensatory and punitive damages to Ditto. We reverse that portion of the trial court's August 9, 1993 amended judgment that awarded prejudgment interest on punitive damages, vacate that portion that awarded fraud damages, vacate the remaining award of prejudgment interest, and remand for further proceedings consistent with this opinion. In all other respects, we affirm.


I. BACKGROUND


A. Summary Of The Facts


Ditto is a first generation Korean immigrant. She migrated to the United States in 1976 after marrying an American serviceman and settled in Hawai'i ten years later. Ditto suffered from a history of serious illnesses throughout her life, including childhood polio and recent problems with high blood pressure, diabetes, heart complications, and hyperthyroidism. The drug treatment for her hyperthyroidism ultimately caused her breasts to flatten.


Ditto's breast disfigurement prompted her to consider breast augmentation surgery. She subsequently visited Dr. McCurdy for a consultation on October 23, 1986. Dr. McCurdy is a board-certified otolaryngologist (generally referred to as an ear, nose, and throat specialist) with practices on Maui and in Honolulu. Dr. McCurdy is also certified by the American College of Surgeons and the American Board of Cosmetic Surgeons (ABCS). The ABCS is not recognized by the American Board of Medical Specialties, which accredits and supervises specialty practices. Dr. McCurdy began performing breast augmentation surgery in 1982, had performed over 150 such surgeries by 1986, gave lectures, and has published books and articles on cosmetic surgery, including breast augmentation surgery.


Ditto testified that during her consultation, Dr. McCurdy conducted a five minute physical exam and took her medical history. She testified that the medical history portion of the consultation essentially consisted of a single question, specifically, whether she was presently taking any medication. Dr. McCurdy neither asked, nor did Ditto volunteer, any information about Ditto's prior illnesses. Moreover, Ditto alleges that Dr. McCurdy did not discuss any potential complications. According to Ditto, the entire consultation lasted approximately twenty minutes.


On the other hand, Dr. McCurdy testified that he discussed with Ditto the possibility that bleeding, infection, nerve damage, and hardening of the breasts could result from the surgery. His medical notes indicate that Ditto "has no history of breast masses, or other disorders and no family history of breast cancer. No bleeding disorders, aspirin or other medication that she took which would be predisposed to bleeding no known allergies." In addition, he testified that he explains to all of his patients that they have to make four decisions: type of implant, incision location, implant location, and size of implant

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