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Keomaka v. Zakaib5/14/1991
This is a medical tort case arising from plaintiff Richard Keomaka's (Keomaka) claim that defendant George Zakaib, M.D. (Dr. Zakaib), was professionally negligent in rendering a surgical procedure without Keomaka's informed consent. The jury found that Dr. Zakaib was negligent, but that the negligence was not "the legal cause" of the harm and damages suffered by Keomaka. Keomaka appeals the judgment entered pursuant to the jury's special verdict, specifying fifteen points of error, including the giving of certain instructions to the jury.
Upon a review of the record, we conclude that the trial court reversibly erred in giving the jury instructions on superseding cause and contributory negligence. We therefore vacate the judgment and remand the case for a new trial.
I. FACTS
On March 9, 1984, Keomaka, a sheet metal worker, injured his left middle finger (finger) and right ankle when he fell from a ladder while at work. At the Kula Clinic on Maui, Frederick Sands, M.D. (Dr. Sands), found that Keomaka suffered a sprain of his right ankle, which required no further medical attention after the initial treatment. As to the finger, Keomaka suffered a puncture wound, but the x-ray did not show any foreign body in the finger. A Band-Aid was applied to the finger, and Keomaka received a tetanus shot.
The next day, Keomaka saw Dr. Sands again, complaining about a swelling and soreness of the finger. Neither a probing of the puncture wound nor a fluoroscopy examination revealed any foreign body in the finger. Dr. Sands prescribed antibiotics for Keomaka. Keomaka continued to feel pain and numbness in the finger. Around March 20, 1984, Dr. Sands referred Keomaka to Dr. Zakaib, an orthopedic surgeon. X-rays revealed a foreign body in the wound site of the finger.
On April 30, 1984, Dr. Zakaib operated on Keomaka's finger and removed a piece of pencil lead. Shortly thereafter, Dr. Zakaib informed Keomaka that the piece of pencil lead had squeezed the radial nerve, causing the pain and numbness in the finger. Dr. Zakaib told Keomaka that the damaged nerve may return to normal. If not, the damaged portion of the nerve could be surgically removed and the two ends abutting the removed portion joined together (repair) or a nerve from some other area of his body could be placed in between the two ends (graft).
On July 27, 1984, after he had received a second opinion from another orthopedic surgeon regarding the need for surgery on his finger, Keomaka informed Dr. Zakaib of his decision to proceed with the operation. On July 31, 1984, at a pre-operation physical, Dr. Zakaib discussed the surgical procedure and the risks involved with Keomaka, and Keomaka signed a surgical consent form. At trial, there was a conflict in testimony regarding what Dr. Zakaib told Keomaka on July 27 and 31, 1984, and the circumstances under which Keomaka signed the consent form.
On August 1, 1984, at the Maui Memorial Hospital, Dr. Zakaib operated on Keomaka's finger and leg, removing Keomaka's sural nerve from the area just above the right ankle and grafting it into the finger. This sural nerve graft surgical procedure is the basis of Keomaka's medical tort claim and is hereinafter referred to as the "August 1, 1984 surgery."
Following the August 1, 1984 surgery, Keomaka's right foot, ankle, and calf were numb. During August, September, and October 1984, Keomaka complained to Dr. Zakaib about pain and a "shocking" sensation in his right leg. On October 24, 1984, Dr. Zakaib operated on Keomaka's right leg to determine the source of his discomfort. At the original donor site, Dr. Zakaib found a neuroma (nerve tumor) which he removed. He then placed a pl
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