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Ditto v. McCurdy6/9/1997
charge.
The most oft-cited case on the abuse of discretion standard of review is Tittle v. Hurlbutt, 53 Haw. 526, 497 P.2d 1354 (1972). Tittle also involved a trial court's refusal of a requested instruction. And although the case does not contain an in-depth analysis, the court did adopt and apply the abuse of discretion standard of review:
The function served by jury instructions is to inform the jury of the law applicable to the current case. The boundaries of the trial Judge's discretion in performing this function are defined by the obligation to give sufficient instructions and the opposing imperative against cumulative instructions. . . . The trial Judge does not exceed the limits of his [or her] discretion by reason of his [or her] refusal of a requested instruction which is substantially covered by other instructions, even when the refused instruction is a correct statement of the law.
Id. at 531, 497 P.2d at 1357 (citations omitted).
More recent decisions in this line of cases have, with little Discussion, used the abuse of discretion standard of review outside the context of cumulative or repetitive instructions. See, e.g., Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 81 Haw. 512, 525, 918 P.2d 1168, 1181 (App. 1996); Richardson, 76 Haw. at 504, 880 P.2d at 179.
Because of the difficulty involved with trying to apply the abuse of discretion standard of review in the instant case, which does not involve cumulative or repetitive instructions, and because it is virtually impossible to review the refusal of an instruction in this context without some type of de novo review, we choose to follow the "viewed as a whole" line of cases when analyzing the issue of Dr. McCurdy's refused instruction. Thus, we review the informed consent instruction that was given and the standard of care instruction that was refused de novo under the right/wrong standard to determine whether they are correct statements of the law. Secondly, we further review the refusal of Dr. McCurdy's instruction on the standard of care de novo in light of all the given instructions as a whole. In this vein, we assess the instructions as a connected whole to determine whether the essence of the standard of care instruction was sufficiently and substantially covered by other instructions and whether the instructions were rendered prejudicially insufficient, erroneous, inconsistent, or misleading by the trial court's refusal. See Craft, 78 Haw. at 303, 893 P.2d at 138 (quoting State v. Pinero, 75 Haw. 282, 292, 859 P.2d 1369, 1374 (1993) ("'Both in civil and in criminal cases the instructions of the court must be read together as one connected whole, to ascertain whether they correctly declare the law.'")).
2. The Consent Form Instruction Was Proper.
Dr. McCurdy contends that it was error for the trial court to instruct the jury that Ditto had no duty to read the consent form instruction. We disagree.
The trial court instructed the jury that Dr. McCurdy had a duty to inform Ditto of, among other things, the risks involved in her procedure and alternative forms of treatment:
Before performing surgery or providing any other treatment to plaintiff Janie Ditto, Dr. McCurdy had the affirmative duty to inform her of the following in timely manner :
1, the condition being treated;
2, the nature and character of the proposed treatment or surgical procedure;
3, the anticipated result;
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Hawaii Personal Injury Attorneys
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