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Ditto v. McCurdy6/9/1997
mand for a hearing to determine when Ditto's motion for prejudgment interest was served on Dr. McCurdy; (7) in the event the motion was timely, the trial court may award prejudgment interest on special and general damages (but not punitive damages) at the statutorily prescribed rate of ten percent and determine whether Ditto should be awarded prejudgment interest on fraud damages, if any are awarded in favor of Ditto; and (8) in the event the motion was untimely, reverse the granting of the prejudgment interest award in toto.
Simeon R. Acoba, Jr., Walter S. Kirimitsu
DISSENTING OPINION OF WATANABE, J.
I respectfully Dissent from the majority opinion in the following respects:
(1) Assuming that the motion for prejudgment interest of Plaintiff-Appellee Janie Ditto (Ditto) was timely served, I disagree that Hawai'i Revised Statutes (HRS) § 636-16 (1993) authorized the trial Judge to award Ditto prejudgment interest from October 23, 1986, the date of Ditto's initial consultation with Defendant-Appellant Dr. John A. McCurdy, Jr. (Dr. McCurdy). The plain language of HRS § 636-16 requires that in tort cases, the earliest commencement date that can be designated in awarding interest is "the date when the injury first occurred." In the case of Ditto, I believe her actual injury occurred on November 3, 1986, the date she underwent the first surgery, and not on October 23, 1996 when she merely met with Dr. McCurdy to discuss the surgery.
(2) In light of Craft v. Peebles, 78 Haw. 287, 893 P.2d 138 (1995), I believe that the trial court committed prejudicial error when it refused to instruct the jury that the standard of care required of Dr. McCurdy had to be determined from expert medical testimony. In Craft, the supreme court stated:
It is well settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. The standard of care to which a doctor has failed to adhere must be established by expert testimony because "a jury generally lacks the 'requisite special knowledge, technical training, and background to be able to determine the applicable standard without the assistance of an expert.'" There are, however, exceptions to the rule.
The "common knowledge" exception, which is similar to the doctrine of res ipsa loquitur, provides that certain medical situations present routine or non-complex matters wherein a lay person is capable of supplanting the applicable standard of care from his or her "common knowledge" or ordinary experience.
There are "some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge in the patient's interior, or removes or injures an inappropriate part of his anatomy, or when a tooth is dropped down his windpipe or he suffers a serious burn from a hot water bottle, or when instruments are not sterilized, the thing speaks for itself without the aid of any expert's advice."
When the "common knowledge" exception is applied, the medical malpractice case transforms into an ordinary negligence case, thus obviating the necessity of expert testimony to establish the applicable standard of care. This exception, however, is rare in application.
Id. at 298, 893 P.2d at 149 (emphasis added, citations omitted).
Thus, the law in this jurisdiction e
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