On April 15, 2014, the HAWSCT accepted cert in Cuc Thi Ngo, et al. v. The Queen’s Medical Center, et al., SCWC-30172, involving the significance of a drug’s packaging on the issue of informed consent, and whether the admitted failure to disclose such information precludes a finding of informed consent.
In the underlying medical malpractice case, the plaintiffs alleged negligence and that the defendant health care providers failed to obtain informed consent resulting in the death of a 9 year old girl. The child was treated by one doctor with an antibiotic for an ear infection and diarrhea, then later treated at Queen’s emergency room for vomiting and diarrhea, which the hospital diagnosed as inflammation of the gastrointestinal tract. After being treated, the girl was released with instructions that included a prescription to the drug Reglan (used to treat nausea). Even though the child continued to have the same symptoms, and even though her parents called the hospital, they were not told to return but rather to “let the medicine work.” ICA Slip. Op. at 5. Two days later, after experiencing abdominal pain and trouble breathing, the girl became unconscious, was transported to two other hospitals, and later died. Medical testimony at trial revealed that Reglan was not safe for use in children.
The circuit court granted the defendants’ motion for judgment as a mater of law on the issue of informed consent. The jury ruled in favor of the doctor on the negligence claim. The circuit court also denied multiple motions by the plaintiffs’ to amend their pleadings to conform to the evidence. The ICA affirmed the circuit court’s judgment.
On cert, Ngo argues that the circuit court erred because (1) it was wrong to discount or exclude evidence of the drug’s package insert, in combination with the3 expert testimony, in finding that plaintiffs failed to meet their burden on the claim of informed consent, and (2) the treating physician’s admission that he did not disclose the information, combined with evidence that the information was material, precluded a finding of informed consent.
Honorable Circuit Court Judge Bert I. Ayabe was assigned to the case to sit due to vacancy.
Oral arguments will be held on Monday, May 12, 2014 at 10:00 a.m. in the Hawaii Supreme Court courtroom.
The order accepting cert is available here.
The ICA’s memorandum opinion is available here.
The cert application is available here.
The opposition to cert is available here.
The reply in support of cert is available here.