The Estate of Louie John Rodrigues v. Warrington

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-FEB-2024
08:28 AM
Dkt. 82 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

THE ESTATE OF LOUIE JOHN RODRIGUES,
Plaintiff-Appellant,
v.
WAYNE D. WARRINGTON, D.O., Defendant-Appellee,
and
HAWAII MEDICAL CENTER WEST and
DOE DEFENDANTS 1-25, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 14-1-1770)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and Nakasone, and McCullen, JJ.)

This appeal arises out of a medical malpractice lawsuit
brought by Plaintiff-Appellant The Estate of Louie John Rodrigues
(Estate) and Plaintiff The Estate of Garbetti Kanoe Rodrigues
(collectively, Plaintiffs) against Defendant-Appellee Wayne D.
Warrington, D.O. (Warrington) and Defendant Hawaii Medical Center
West.1/ After the Estate concluded its case-in-chief at trial,
the Circuit Court of the First Circuit (Circuit Court) granted
Warrington's oral motion for judgment as a matter of law as to
the issue of causation, pursuant to Hawai#i Rules of Civil
Procedure Rule 50, and subsequently entered judgment in favor of
Warrington and against Plaintiffs.2/

1/
The Estate of Garbetti Kanoe Rodrigues was dismissed as a
plaintiff, and the case caption was amended to reflect the Estate as the sole
plaintiff, by stipulation and order entered on January 3, 2019. Defendant
Hawaii Medical Center West was dismissed as a party by agreement of the
parties on January 2, 2019, as reflected in the court minutes for that date.
2/
The Honorable Jeffrey P. Crabtree presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

The Estate appeals from the Judgment, entered on
March 18, 2019, and the "Order Granting in Part and Denying in
Part [Warrington's] Oral Motion for Judgment as a Matter of Law,"
entered on January 22, 2019, in the Circuit Court.3/ The Estate
contends that the Circuit Court erred in granting Warrington's
motion for judgment as a matter of law on the issue of causation.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
Estate's contention as follows and affirm.
The Estate contends that the Circuit Court erred in
granting the motion for judgment as a matter of law on the issue
of causation because "Warrington's negligence could be found to
be a substantial factor in causing Mr. Rodrigues' death even if
there were other substantial factors (such as his fall), and in
the absence of a finding that without [Warrington's] negligence
the harm would not have occurred." Relatedly, the Estate argues
that "Warrington's actions, or rather failure to act, in this
case deprived . . . Rodrigues of any chance of surviving his
fall." The Estate further argues that "the trial court erred
when it failed to apply the common knowledge exception when it
found that [the Estate] had not met its burden to prove causation
with expert witnesses." (Formatting altered.)
"[I]n order to prevail on a medical negligence claim, a
plaintiff must prove, by a preponderance of the evidence, that a
health care provider defendant, acting in the defendant's
professional capacity, committed a negligent act or omission
which was a substantial factor in bringing about the death of, or
injury or other damage to, a patient." Estate of Frey v.
Mastroianni, 146 Hawai#i 540, 550-51, 463 P.3d 1197, 1207-08
(2020) (footnote omitted). As to the substantial factor/
causation element, "[a] medical negligence plaintiff is required
to establish legal causation through the introduction of expert
medical testimony, [Barbee v. Queen's Medical Center, 119 Hawai#i

3/
Pursuant to Hawai#i Rules of Appellate Procedure Rule 4(a)(2), the
February 15, 2019 notice of appeal is deemed filed immediately after entry of
the Judgment.

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

136, 158, 194 P.3d 1098, 1120 (2008)], and such testimony must be
'based on a "reasonable medical probability,"' id. at 163, 194
P.3d at 1125 (quoting Craft[ v. Peebles], 78 Hawai#i [287,] 305,
893 P.2d [138,] 156[ (1995)])." Estate of Frey, 146 Hawai#i at
557, 463 P.3d at 1214 (original brackets omitted); see Barbee,
119 Hawai#i at 159, 194 P.3d at 1121.
"Loss of chance," which in these circumstances refers
to the patient's lost chance of survival, is "a relevant
consideration in determining whether a defendant's negligence was
a substantial factor in causing the plaintiff's injury." Frey,
146 Hawai#i at 552, 554, 463 P.3d at 1209, 1211. However, in
proving that the plaintiff suffered injury, "the plaintiff must
prove that the lost chance of survival . . . was a substantial
loss of chance[,]" and must do so through expert medical
testimony based on a "reasonable medical probability." Id. at
555, 463 P.3d at 1212 (quoting Delaney v. Cade, 873 P.2d 175,
185-86 (Kan. 1994), and McBride v. United States, 462 F. 2d 72,
75 (9th Cir. 1972)).
This court has concluded that "Hawai#i does recognize a
'common knowledge' exception to the requirement that a plaintiff
must introduce expert medical testimony on causation." Barbee,
119 Hawai#i at 159, 194 P.3d at 1121 (citing Medina v. Figuered,
3 Haw. App. 186, 188, 647 P.2d 292, 294 (1982)).

The exception is similar to the doctrine of res ipsa
loquitur, and when applied, transforms a medical malpractice
case "into an ordinary negligence case, thus obviating the
necessity of expert testimony to establish the applicable
standard of care." Craft, 78 Hawai#i at 298, 893 P.2d at
149 (citing Rosenberg by Rosenberg v. Cahill, 99 N.J. 318,
492 A.2d 371, 374 (1985)). This exception is "rare in
application," id., and applies in instances such as "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." Id. (citing Medina, 3 Haw. App. at
188, 647 P.2d at 294).

Id. (brackets omitted).
Where the common knowledge exception does not apply,
the default rule kicks in (see supra), and the plaintiff must
establish causation through expert medical testimony based on a
reasonable medical probability. See Frey, 146 Hawai#i at 557,

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

463 P.3d at 1214; Barbee, 119 Hawai#i at 162-63, 194 P.3d at
1124-25.

This means that testimony that "falls short of providing the
causal nexus" between alleged negligence and harm to the
patient is insufficient as a matter of law." Barbee, 119
Hawai#i at 163, 194 P.3d at 1125. However, when testimony
asserting such a causal nexus is provided, it falls to the
jury to determine whether the party presenting the testimony
has met its burden of proof. Dzurik v. Tamura, 44 Haw. 327,
329, 359 P.2d 164, 165 (1960) . . . [.]

Frey, 146 Hawai#i at 557, 463 P.3d at 1214 (original brackets
omitted).
Here, the causal link between any alleged negligence
and Rodrigues's death is not within the realm of "common
knowledge." The evidence at trial showed that Rodrigues suffered
from numerous underlying health conditions, including diabetes,
hypertension, "end-stage liver disease" (or decompensated
cirrhosis), and liver cancer. With these conditions, Rodrigues
fell off a ladder from a height of approximately six feet,
sustaining further injuries, allegedly including a significant
head injury and intracranial bleeding. The Estate contends that
giving Ibuprofen to a patient with liver disease and failing to
conduct a head CT scan rendered Warrington negligent. However,
the diagnosis of intracranial bleeding, as well as the role that
preexisting conditions and alleged subsequent complications
related to his treatment played in Rodrigues's death, are not
within the knowledge of the average layperson. Additionally, as
the Circuit Court observed and Warrington points out, "[f]urther
complicating matters is the fact that the Certificate of Death
identified the cause of death as respiratory failure and advanced
liver carcinoma." In sum, Rodrigues sustained a "sophisticated
injury," and "a reasonable jury would need expert medical
testimony to determine whether and to what extent any alleged
negligence" contributed to Rodrigues's death and/or lost chance
of survival. See Barbee, 119 Hawai#i at 161, 194 P.3d at 1123.
The Estate was thus required to establish causation through
expert medical testimony based on a reasonable medical
probability.

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

The Estate failed to do so. Based on our review of the
Estate's arguments regarding causation, as well as our own review
of the trial record, it appears there was no expert medical
testimony that any alleged negligent act or omission by
Warrington contributed to Rodrigues's death, or to a lost chance
of survival, to a reasonable medical probability.4/ Because the
testimony at trial "'[fell] short of providing the causal nexus'
between alleged negligence and harm to [Rodrigues]," it was
insufficient as a matter of law. Frey, 146 Hawai#i at 557, 463
P.3d at 1214 (quoting Barbee, 119 Hawai#i at 163, 194 P.3d at
1125). Accordingly, the Circuit Court did not err in granting
Warrington's motion for judgment as a matter of law on the issue
of causation.
For the reasons discussed above, we affirm the
Judgment, entered on March 18, 2019, and the "Order Granting in
Part and Denying in Part . . . [Warrington's] Oral Motion for
Judgment as a Matter of Law," entered on January 22, 2019, in the
Circuit Court of the First Circuit.

DATED: Honolulu, Hawai#i, February 29, 2024.

On the briefs:

Michael J. Green and /s/ Clyde J. Wadsworth
Denise M. Hevicon Presiding Judge
for Plaintiff-Appellant.

Michele-Lynn E. Luke and /s/ Karen T. Nakasone
Saori Takahashi Associate Judge
(Kessner Umebayashi Bain &
Matsunaga)
for Defendant-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

4/
As a threshold matter, we note that the Estate did not argue below
that it had established causation based on an alleged lost chance of survival
or otherwise raise the loss-of-chance doctrine at trial. Generally, issues
not raised below are waived on appeal. See State v. Moses, 102 Hawai #i 449,
456, 77 P.3d 940, 947 (2003) ("As a general rule, if a party does not raise an
argument at trial, that argument will be deemed to have been waived on appeal;
this rule applies in both criminal and civil cases."); Ass'n of Apartment
Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai #i 97, 107, 58 P.3d 608,
618 (2002) ("Legal issues not raised in the trial court are ordinarily deemed
waived on appeal."). That is the case here; the Estate waived its argument
based on the loss-of-chance doctrine. In any event, the argument is without
merit for the reasons discussed above.

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