Swink v. Cooper

881 P.2d 1277, 77 Haw. 209, 1994 Haw. App. LEXIS 30
CourtHawaii Intermediate Court of Appeals
DecidedSeptember 30, 1994
Docket15852
StatusPublished
Cited by12 cases

This text of 881 P.2d 1277 (Swink v. Cooper) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swink v. Cooper, 881 P.2d 1277, 77 Haw. 209, 1994 Haw. App. LEXIS 30 (hawapp 1994).

Opinion

WATANABE, Judge.

In this medical malpractice case, Plaintiff-Appellant Evelyn Swink (Plaintiff) appeals from the October 14, 1991 judgment entered against her by the First Circuit Court pursuant to a jury’s verdict in favor of Defendant-Appellee Dr. Maxwell Cooper (Dr. Cooper). 1 According to Plaintiff, the circuit court reversibly erred when it: (1) improperly curtailed the trial testimony of Plaintiff’s expert witness, Dr. Susan Hughes (Dr. Hughes); and (2) improperly allowed Defendant’s expert witness, Dr. James Carraway (Dr. Carr-away), to testify at trial even though he had never personally examined Plaintiff. 2

We find no error and accordingly affirm.

FACTS AND PROCEDURAL HISTORY

On June 18,1982, Plaintiff went to see Dr. Cooper, a board-certified general surgeon and plastic and reconstructive surgeon, regarding a slight droop in her left eyelid, a condition known as “ptosis.” 3 Dr. Cooper determined that Plaintiff had a two-millimeter degree of ptosis and recommended that she undergo a corrective surgical procedure called “Fasanella-Servat.” 4 Dr. Cooper also advised Plaintiff that he had never personally performed the particular surgery before, but *211 did have experience in cosmetic eyelid surgeries of equal or greater magnitude and was willing to perform the surgery for her at a reduced price. He further discussed with Plaintiff the potential risks of such surgery, which included bleeding, infection, blindness, and an uneven result.

Plaintiff agreed to have Dr. Cooper perform the surgery and executed an informed consent form, acknowledging the risks of such surgery. On July 9, 1982, Dr. Cooper performed his first surgery on Plaintiffs eyelid in his office. Unfortunately, the amount of ptosis in Plaintiffs eyelid did not improve. Accordingly, Dr. Cooper referred Plaintiff to Dr. Vernon Jim (Dr. Jim), who is a board-certified ophthalmologist and plastic surgeon, for an evaluation and second opinion as to whether or not it was medically indicated to reoperate.

Dr. Jim examined Plaintiff on August 11, 1982, at which time Plaintiff had 20/20 vision in both eyes and normal test results. Transcript (Tr.) 10/8/91 at 130-31. Dr. Jim recommended that Plaintiff wait for about six months before repeating a Fasanella-Servat procedure to correct the residual ptosis.

On January 12, 1983, Dr. Cooper performed a second Fasanella-Servat surgery on Plaintiff. Plaintiff testified that post-op-eratively, she experienced pain, burning, scratching, heaviness, and loss of control of her left eyelid. However, Dr. Cooper’s medical records reflect that Plaintiffs only complaint was that the outer portion of her eyelid was still not completely corrected, and Plaintiff wanted Dr. Cooper to reoperate.

Dr. Cooper then referred Plaintiff to Dr. Jim and Dr. Jorge Camara (Dr. Camara) to determine whether it was medically reasonable to repeat another Fasanella-Servat procedure. When Dr. Jim examined Plaintiff on March 10, 1983, he did not find anything abnormal other than a minimal residual pto-sis of one millimeter or less, which was less than what Plaintiff had previously. Dr. Jim noted that Plaintiff seemed “overanxious to get a perfect result.” Tr. 10/8/91 at 138. He advised Plaintiff to wait for six months before undergoing further surgery.

Dr. Camara, a board-certified ophthalmologist, examined Plaintiff on March 15, 1983. Although Plaintiffs vision and levator muscle function were a little decreased in her left eye compared to the right, and she complained of dizziness during a test for extrao-cular motion, she had no abnormal findings or complaints at the time. Dr. Camara measured the amount of ptosis at two millimeters, and felt that further surgery on Plaintiffs eyelid was not contraindicated. In a letter to Dr. Cooper dated March 21, 1983, Dr. Camara stated that he felt “the best mode of correction would be doing a Fasanel-la-Servat procedure under frontal block.” Tr. 10/8/91 at 17.

Following Plaintiffs office visit with Dr. Cooper on May 12, 1983, Dr. Cooper noted that Plaintiff was “[r]elaxed, relatively, and happy with care.... Wants lateral lid lifted further. Likes central and medial.” Tr. 10/8/91 at 18. They discussed scheduling for another eyelid surgery, but Plaintiff later called Dr. Cooper’s office to postpone surgery indefinitely.

It was not until March 14, 1986, almost three years later, that Dr. Cooper saw or heard from Plaintiff again in his office. During this office visit, Plaintiff did not complain about any problems with her eye or her vision, but she felt that more lateral lift of the eyelid was needed.

On April 29,1986, Dr. Cooper performed a third surgery on Plaintiffs left eyelid. Post-operatively, Plaintiff did not report any problems with her vision or her eye, but she still felt that the ptosis was not fully corrected. Dr. Cooper thereafter referred Plaintiff to Dr. Camara.

When Dr. Camara examined Plaintiff on December 16, 1986, Plaintiff indicated that *212 her left eye felt heavier, but she did not report any problems with her eye or her vision. At this time, Plaintiff and Dr. Ca-mara discussed doing a levator resection to correct the ptosis. 5

On January 16, 1987, Dr. Camara performed a levator resection on Plaintiff at Straub Hospital. Dr. Cooper was present during the procedure as an assistant, but made no incisions or surgical decisions. During the surgery, Dr. Camara did not observe any unusual scarring or abnormalities from Dr. Cooper’s previous surgeries. Immediately after the operation, Plaintiff complained of a great amount of pain in her left eye, and she was upset about the care she received at Straub. In the days following the surgery, Plaintiff reported severe itching and swelling.

When Dr. Camara examined Plaintiff again on February 11, 1987, the amount of ptosis was half a millimeter. However, Plaintiff indicated that her left eyelid did not open all the way, and she reported intermittent pain and headaches.

On March 5, 1987, Plaintiff went to Dr. Cooper’s office and reported double vision when looking upwards. Dr. Cooper noted that her ptosis appeared to be a little worse than it had been before the levator resection surgery.

When Dr. Camara examined Plaintiff on August 18, 1987, she reported having double vision, which Dr. Camara suspected was caused by adhesions between the superior rectus and levator muscles.

Plaintiff was subsequently examined on September 21, 1987 at Wills Eye Hospital in Philadelphia by Dr. Susan Hughes (Dr. Hughes), a board-certified ophthalmologist and oeuloplastic and reconstructive surgeon. Plaintiff reported ptosis, double vision on upward gaze, and a mass in her left eyelid, and Dr. Hughes could feel a mass in Plaintiffs left eye. Dr. Hughes advised Plaintiff not to have further surgery, but Plaintiff insisted that Dr. Hughes perform an operation to remove the mass and correct the ptosis, even at the risk of worsening her double vision.

Plaintiff subsequently underwent three more levator resections.

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Bluebook (online)
881 P.2d 1277, 77 Haw. 209, 1994 Haw. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swink-v-cooper-hawapp-1994.