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O'Connor v. Wong1/28/2003
ation omitted). "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Roxas, 89 Hawaii at 116, 969 P.2d at 1234 (citation omitted); see also Hawaii Rules of Civil Procedure (HRCP) Rule 56(c). "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982) (citations omitted). In a motion for summary judgment, "'we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.'" Morinoue v. Roy, 86 Hawai`76, 80, 947 P.2d 944, 948 (1997) (quotingMaguire v. Hilton Hotels Corp., 79 Hawaii 110, 112, 899 P.2d 393, 395 (1995)) (brackets omitted).
FACTS (EVIDENCE VIEWED MOST FAVORABLY TO O'CONNOR)
The following are the facts stated by O'Connor in his deposition and/or his handwritten exhibits.
On July 11, 1994, O'Connor slipped on some stairs. The next day, O'Connor was seen in the emergency room of Queen's Medical Center (QMC) where he complained of pain in his right arm below the elbow. Dr. Wong examined O'Connor and sent him for x-rays. Dr. Meagher examined the x-rays and reported a normal forearm with normal alignment. Dr. Wong diagnosed a mild sprain, prescribed medication, and advised O'Connor that he would most likely have symptoms for thirty days. He also advised O'Connor to seek follow-up care the following morning with his primary care physician. Dr. Wong had no further contact with O'Connor.
O'Connor had experienced a sprain-type injury prior to the injury in question and it had subsided within a week. Dr. Wong had advised him that his symptoms should resolve within thirty days. Instead, his pain was getting worse. He had a big lump at the point of the injury. He was scared to return to QMC because he "felt" Dr. Wong made a mistake. He initially saw Dr. John Martell (Dr. Martell) at the "free medical clinic" on August 22, 1994. On August 30, 1994, O'Connor told Dr. Martell that he "felt" he had been mis-diagnosed by Dr. Wong and was thinking he had a break in his arm. The pain "was bad." He was not able to move his elbow. Dr. Martell advised O'Connor to return to QMC to have another x-ray of his right arm. O'Connor told Dr. Martell that he would not return to QMC because he "was paranoid of [Dr.] Wong." Dr. Martell referred O'Connor to another facility for an x-ray. Treatment was refused because O'Connor could not pay and did not have insurance. Dr. Martell continued to treat O'Connor for arm complaints, as well as general health problems. O'Connor's arm symptoms did not cease, and Dr. Martell again advised O'Connor to return to QMC for another x-ray.
Finally, on November 15, 1994, O'Connor was seen at the Queen Emma Clinic for an x-ray. After looking at the x-ray films taken the first time in July 1994, the doctor advised O'Connor that O'Connor had a broken arm. A new set of x-rays confirmed the fact of the break. According to O'Connor, he some time later was advised "by other doctors" "that the bone has since surely re-connected, but incorrectly" and "most likely I'll need to have the bone rebroken."
On April 12, 1995, "as per advise from Attorney as well as a few doctors [he had] seen, and others[,]" O'Connor filed a handwritten claim with the Medical Claims Conciliation Panel of the Department of Commerce & Consumer Affairs, State of Hawaii (MCCP). In t
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