No. SCWC-14-0001030, Thursday, February 21, 2019, 10 a.m.

ESTATE OF ROBERT FREY, Petitioner/Plaintiff-Appellant, vs. ROBERT P. MASTROIANNI, M.D., Respondent/Defendant-Appellee.

Supreme Court Courtroom
Ali iolani Hale
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:

Anthony Ranken and Samuel P. Shnider of Anthony Ranken & Associates

Attorneys for Respondent:

Thomas E. Cook and Bradford F. K. Bliss of Lyons, Brandt, Cook & Hiramatsu

NOTE: Order granting Application for Writ of Certiorari, filed 11/29/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

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Brief Description:

On June 13, 2004, Robert Frey was discharged from Maui Memorial Medical Center by Dr. Robert Mastroianni. He was readmitted to the hospital less than 24 hours later and died of pneumonia on June 15, 2004. Frey’s Estate brought a claim before the Medical Claims Conciliation Panel (“MCCP,” now renamed the Medical Inquiries and Conciliation Panel), claiming that his death was the result of Dr. Mastroianni’s negligence and alleging that if Dr. Mastroianni had followed a certain course of treatment and kept Frey in the hospital for further observation and treatment, “it is likely that he would have survived.” The MCCP decided in favor of the Estate, but Dr. Mastroianni chose not to pay the award.

The Estate then filed a medical malpractice complaint against Dr. Mastroianni in the Circuit Court of the Second Circuit, alleging that Dr. Mastroianni’s negligence caused Frey’s death or, in the alternative, deprived him of a significant improvement in his chances for recovery. At trial, after the Estate presented its evidence, including testimony from three expert witnesses, Dr. Mastroianni moved for, and was granted, judgment as a matter of law. The circuit court held that whether or not Hawaii recognizes a separate “loss of chance” claim, the court lacked subject matter jurisdiction over the claim because the Estate failed to raise it before the MCCP. And it held that the Estate could not establish its wrongful death claim because none of the Estate’s experts opined to a reasonable degree of medical probability as to whether Dr. Mastroianni’s care and treatment of Frey caused his death. On appeal, the Intermediate Court of Appeals (“ICA”) held that “the loss of chance doctrine is consistent with Hawai i law and should be recognized as a separate compensable injury in circumstances such as this case.” But it went on to affirm the circuit court’s judgment as to both its lack of jurisdiction over the loss of chance claim and the Estate’s failure to provide sufficient evidence to establish causation. The Estate then filed an application for writ of certiorari with the supreme court, which was granted on November 29, 2018.

In its application for writ of certiorari, the Estate presented two questions. The first question was whether it was error for the ICA to affirm the circuit court’s order granting judgment as a matter of law on the loss of chance claim because it was not properly asserted before the MCCP. The second question was whether it was error for the ICA to affirm the circuit court’s order on the basis that the Estate had failed to establish causation. The Estate argues that the statute establishing the MCCP is not a jurisdictional bar to its claim, and that its evidence was sufficient for a jury to find in its favor on the issue of causation.