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Ditto v. McCurdy6/9/1997
told her that this condition happens to one out of every thirty patients. He instructed Ditto to massage her breasts ten minutes a day to alleviate the hardness.
The hardness persisted, however, and Ditto subsequently returned to Dr. McCurdy's office on May 14, 1987. During this visit Dr. McCurdy performed a closed capsulotomy. This procedure involves manually crushing the implants until the hardness disappears. Craft v. Peebles, 78 Haw. 287, 291 n.2, 893 P.2d 138, 142 n.2 (1995). A closed capsulotomy is an extremely painful procedure performed without anesthesia. Ditto screamed during the procedure and placed a towel in her mouth after being admonished by Dr. McCurdy that other patients could hear her. Dr. McCurdy performed this procedure on two separate occasions, with the second being performed on September 2, 1987. Unfortunately, both closed capsulotomy procedures were unsuccessful.
In between the closed capsulotomy procedures, Dr. McCurdy recommended an open capsulotomy. "An open capsulotomy is a surgical procedure in which the doctor makes an incision into the breast in order to rupture the scar tissue surrounding the implant." Id. at n.3, 893 P.2d at 142 n.3. Ditto was thus placed under general anesthesia and underwent her fourth surgery on July 15, 1987.
Seven days later, on July 21, 1987, Ditto returned to Dr. McCurdy's office. Her breasts were again hard, painful and, at this point, oozing black blood from both incisions. Dr. McCurdy was in San Francisco, however, so Ditto was seen by his medical assistant, Karla Scarpiova (Scarpiova). Scarpiova changed Ditto's dressing, taped up her open incisions, and sent her home. But Ditto returned the next day because her open wounds had saturated the bandages. Scarpiova then, with Dr. McCurdy's consent, "stitched up" Ditto's open wounds.
In spite of numerous visits, medication, and procedures, Ditto's problems continued. On October 16, 1987, Ditto saw Dr. McCurdy yet again. Operation number five, an open capsulotomy, was performed during this visit. In the days following this procedure, her pain and bleeding continued, with blood at one point "draining down" her stomach.
Her pain intensified in the days that followed and she ultimately returned to Dr. McCurdy a few days after her second open capsulotomy for her final substantive visit. During this visit Dr. McCurdy attempted to drain the blood from Ditto's breasts with a needle. When this procedure failed Dr. McCurdy recommended that he perform surgery the following day. Still bleeding, Ditto returned home.
By the time she reached home her shirt was saturated with blood. After unsuccessfully trying to reach Dr. McCurdy by phone, Ditto went to Tripler Army Medical Center's (Tripler) Emergency Room. A plastic surgeon at Tripler told Ditto that her breasts were infected and that the implants had to be removed. Although Dr. McCurdy disagreed, recommending additional surgery to soften her breasts, Ditto refused, opting instead to have the implants removed. Consequently, in October of 1987, Ditto underwent her sixth surgical procedure and had her right implant removed at Tripler. Her seventh and final operation-removal of the left implant-was performed approximately one year later in San Antonio, Texas.
B. Procedural History
Ditto filed a fraud and negligence claim against Dr. McCurdy and Scarpiova on July 25, 1989. A jury trial commenced on June 10, 1992. On June 30, 1992, the jury returned a unanimous verdict in favor of Ditto.
The trial court filed its initial judgment on July 7, 1992. Dr. McCurdy's subsequent motions for new trial, judgm
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