No. 29988 – Thursday, October 21, 2010 at 9 a.m.

MICHAEL RAY, Individually and As Next Friend for Alyssa Ray, A Minor, and DEBBIE RAY, Plaintiffs-Appelles, Cross-Appellants, vs. KAPIOLANI MEDICAL SPECIALISTS, KAPIOLANI MEDICAL CENTER FOR WOMEN AND CHILDREN, Defendants-Appellants, Cross-Appellees, and DOES 1-20, Defendants. (Medical Malpractice)

Attorney(s) for Defendants-Appellants/Cross-Appellee(s)
Kenneth S. Robbins, John-Anderson L. Meyer and Sergio Rufo (Robbins & Associates) and Andrea M. Gauthier (Horvitz & Levy)
              
Attorney(s) for Plaintiffs-Appellees/Cross-Appellant(s)
Collin M. Fritz and Allen K. Williams (Trecker & Fritz) and Margaret C. Jenkins

NOTE: Certificate of Recusal by Justice Simeon Acoba, filed 4/5/10
NOTE: Order assigning Judge Michael D. Wilson in place of Justice Acoba; recused, filed 4/7/10
NOTE: Order accepting Application for Transfer, filed 4/19/10
NOTE: Certificate of Recusal, by Chief Justice Ronald T.Y. Moon, filed 4/27/10
NOTE: Order assigning Judge Randal K. Lee in place of Moon, CJ; recused, filed 4/28/10
NOTE: Certificate of Recusal by Substitute Justice Randal K. Lee, filed 5/4/10
NOTE: Order assigning Judge Sabrina S. McKenna in place of Substitute Justice Randal K. Lee; recused, filed 5/4/10

COURT:    MER, CJ; PAN, JED, JJ; Circuit Court Judge Michael D. Wilson in place of Acoba, recused; Circuit Court Judge Sabrina S. McKenna in place of Circuit Court Judge Randal K. Lee, recused, in place of former CJ Moon, recused and now retired.

[ Listen to the entire audio recording in mp3 format ]

Brief description:
Petitioners/plaintiffs-appellees/cross-appellants Michael Ray and Debbie Ray (the Rays) timely filed an application for mandatory and discretionary transfer from the Intermediate Court of Appeals (ICA) to the Hawaiʻi Supreme Court of their cross-appeal from a judgment on their complaint for medical malpractice.  The application for transfer was accepted pursuant to Hawaii Revised Statutes (HRS) § 602-58(b)(1) (Supp. 2009) on April 19, 2010.

The Circuit Court of the First Circuit’s (circuit court) Amended Judgment, in relevant part, reduced Alyssa Ray’s pain and suffering damages from $2 million to $375,000 “in accordance with” HRS § 663-8.7 (1993 & Supp. 2009).

On appeal, respondent/defendant-appellant/cross-appellee Kapiolani Medical Specialists (KMS) asserts that the circuit court erred by:  1) granting judgment as a matter of law (JMOL) in favor of the Rays on their negligent treatment claim; 2) denying KMS’ motion for JMOL and renewed motion for JMOL on informed consent; 3) allowing evidence of requirements not set forth in the informed consent statute, HRS § 671-3(b) (Supp. 2009), and declining to take adequate steps to cure the error; and 4) allowing plaintiffs to present improper rebuttal testimony as a “sanction.”

In their cross-appeal, the Rays assert that the circuit court erred by:  1) denying their motion for a new trial because the jury verdict was ambiguous; 2) denying their motion to amend the judgment and reducing the jury’s pain and suffering award pursuant to HRS § 663-8.7 because the statute is unconstitutional; and 3) denying their motion to amend the judgment to add prejudgment interest.