Defendant-Appellant/Cross-Appellee State of Hawai`i (State) appeals from the Final Judgment entered on November 17, 2009 (Judgment), by the Circuit Court of the First Circuit (Circuit Court),
Pursuant to Hawaii Revised Statutes (HRS) § 334-2 (2010), the State's Department of Health (DOH) is mandated to "foster and coordinate a comprehensive mental health system[.]" HRS chapter 334 further directs DOH to
HRS § 334-3(a) (2010). In 1974, the Hawai`i State Legislature (Legislature) enacted legislation that established the responsibility for children's mental health services with DOH. 1974 Haw. Sess. Laws Act 211, § 1 at 469-72. The Child and Adolescent Mental Health Division (CAMHD) was established within DOH to "coordinate the effective and efficient delivery of mental health services to children and youth, including services provided by private nonprofit agencies under contract to the department of health, and be responsible for the development and implementation of centralized and highly specialized programs for children and youth." HRS § 321-172 (2010).
Pursuant to the foregoing authority, in 1999, the State entered into an agreement with Rainbow House to provide "community-based treatment mental health services to children" as part of the State's statutorily mandated community-based mental health care system.
Michael was born on October 4, 1986, and suffers from, inter alia, mild mental retardation, ADHD, Tourette's Disorder, Oppositional Defiant Disorder, and Mood Disorder. From kindergarten through the tenth grade, Michael was enrolled in special education classes with the State Department of Education (DOE). During Michael's tenth grade year, he experienced a series of behavioral episodes that required hospitalization. Specifically, in October 2001, following an attempted suicide and an argument with his father, Michael was admitted to Kahi Mohala Acute Inpatient Services for psychiatric treatment. Michael's treating physician completed a psychiatric evaluation and recommended that Michael be placed in a structured group home with ongoing individual therapy and medication management.
On November 5, 2001, DOE notified Michael's parents that it was not able to meet Michael's needs and that his condition required monitoring and intervention by DOH. Michael was registered with the Leeward Oahu Family Guidance Center (LOFGC), a satellite office of CAMHD, and a team of individuals recommended that the DOH provide assistance for Michael based on his suicidal tendencies, his need for "continual monitoring throughout a 24 [hour] period," his need for "an intense level of medication monitoring," and the possibility that he may need "cognitive restructuring therapy[.]" In response to the recommendation, DOH indicated that it would review a copy of the attending hospital's evaluation and make a determination of Michael's level of need.
DOH subsequently developed a "Coordinated Service Plan" (CSP) with the initial goal of putting Michael in a stable home environment. In order to meet this goal, the CSP stated that DOH would place Michael in a "group home placement" which provides "intensive psychotherapy with a therapist" to help address Michael's poor social skills with peers, oppositional behavior, and his tolerance to frustration. On February 8, 2002, CAMHD informed the LOFGC that referral of Michael to Rainbow House was clinically appropriate.
On February 13, 2002, Michael was admitted to Rainbow House. While there, Mossholder-Brom acted as Michael's personal and family therapist.
On April 11, 2000, approximately two years prior to Michael's referral to Rainbow House, all referrals to Rainbow House were suspended due to a lack of clinical oversight and inadequate staffing. There are no records indicating that Rainbow House corrected the clinical oversight and staffing deficiencies leading to the suspension of referrals. Further information received by CAMHD indicated that a staff member at Rainbow House had engaged in inappropriate sexual misconduct with a child, and that Rainbow House was in violation of its licensing requirements because there were too many youths housed there. Moreover, during the time prior to and including the time period when CAMHD determined it was clinically appropriate to refer Michael to Rainbow House, Rainbow House was not in compliance with CAMHD's reporting requirements. Michael's parents were not informed of the deficiencies at Rainbow House or the allegations of sexual assault by Rainbow House staff prior to CAMHD's referral.
Beginning approximately two months after Michael's placement at Rainbow House, Mossholder-Brom engaged in sexual acts with Michael that included multiple incidents of oral sex and at least one instance of anal sex.
On May 16, 2002, Michael was examined by the clinical director of the LOFGC, Dr. John Viesselmann (Dr. Viesselmann). Dr. Viesselmann noted, amongst other things, that Michael was preoccupied with getting out of the Rainbow House program and had expressed concerns about his sexual interests.
On August 31, 2002, Michael was involved in a group-sex incident, involving six youths residing at Rainbow House, in one of the facility's dormitory rooms. On September 26, 2002, Michael reported to his LOFGC care coordinator what had happened during the group-sex encounter, including information that Rainbow House had consented to an unsupervised gathering in the dormitory room, and that he had been forced to perform sex acts with two other youths. No formal complaints were filed based on information from Rainbow House that they had taken "appropriate corrective action." Rainbow House's internal investigation of the incident, and all interviews related to the incident, were conducted by Mossholder-Brom. There is no indication in the record that Michael was provided psychosexual counseling or treatment relating to the group-sex incident.
Mossholder-Brom was released from his employment at Rainbow House on or about October 18, 2002.
On or about October 21, 2002, Michael was hospitalized at Kahi Mohala after he attempted to run into traffic and kill himself. Medical records of Michael's hospitalization note that he had become "quite attached" to his therapist at Rainbow House, and that he was distraught that the therapist was no longer working with Michael. A CSP, dated November 8, 2002, indicates that Michael was returned to Rainbow House after the October hospitalization. It is not clear from the record when Michael was ultimately discharged from Rainbow House.
Approximately one year later, on or about October 2, 2003, Michael reported to his then-psychotherapist, Carolyn Carlson (Dr. Carlson), for the first time, that he had been sexually assaulted by Mossholder-Brom on multiple occasions during his residency at Rainbow House. Michael later testified that he told Dr. Carlson about the sexual relationship with Mossholder-Brom because he felt what had happened "was wrong," "[b]ecause I was a minor and he was an adult and — and I had like . . . bad dreams about it." Dr. Carlson then relayed the information about the sexual abuse to Michael's parents.
On October 3, 2007, Plaintiff filed a complaint with the Circuit Court against Defendants Rainbow House,
On December 6, 2007, the State filed a motion to dismiss Plaintiff's complaint as barred by the expiration of the statute of limitations under the State Tort Liability Act, HRS Chapter 662. On April 8, 2008, Plaintiff filed their opposition to the State's motion to dismiss, claiming that the claims are "medical torts" governed by a six-year limitations period, and therefore, the complaint is timely filed. A hearing on the motion to dismiss was held on April 16, 2008. At the hearing, the Circuit Court determined that "the law does define a medical tort in the context which is applicable here to include Mr. Mossholder-Brom as an employee of Rainbow [House,]" and the State's motion to dismiss was denied as the complaint was filed within the six-year limitations period governing medical torts. The order denying the State's motion to dismiss was filed on April 23, 2008.
A non-jury trial on the merits was held from September 14, 2009 through September 21, 2009. At the hearing, Plaintiff presented testimony from nine witnesses, including Michael, his parents, and expert testimony from Dr. Carlson, Dr. Daryl Matthews (Dr. Matthews), and rehabilitation nurse Karen Klemme, regarding Michael's injuries and recommendations for future treatment. Following the close of Plaintiff's case, the State did not present any evidence and, after the filing of certain motions (which were denied), rested its case. After an oral ruling on September 21, 2009, the Circuit Court entered its Findings of Fact and Conclusions of Law on October 20, 2009.
The Circuit Court concluded that the State was required by law to establish and operate a community-based mental health care system, to monitor and evaluate the quality of health care, and to ensure accountability for services provided through the community-based mental health care system. The Circuit Court further concluded that CAMHD is required by law to coordinate the effective and efficient delivery of mental health services to youths like Michael, and that it had a duty to "exercise ordinary care in checking the credentials of care providers at Rainbow House (including Mossholder-Brom) in referring Michael to Rainbow House, and in providing oversight of the services provided by Rainbow House." The Circuit Court also concluded that CAMHD had a duty of care, as a health care provider, to meet the applicable professional standard of care, to protect Michael from foreseeable harm, and to promptly and fully investigate allegations that Mossholder-Brom misrepresented his credentials and engaged in misconduct.
Based on these findings and conclusions, the Circuit Court determined that CAMHD was negligent and violated its duties of care, and that this negligence was a legal cause of the injuries suffered by Michael at Rainbow House. The Circuit Court further determined that the damages suffered by Michael were "reasonably foreseeable to the State" and that the State's negligence "was a legal cause of the sexual assaults committed by Mossholder-Brom, and the State and Mossholder-Brom are jointly and severally liable for Michael's damages." The Circuit Court further determined that Michael suffered "compensable psychological injury and emotional distress resulting from Mossholder-Brom abusing his position of trust and taking advantage of Michael in an intimate and self-defining way," and that Michael also suffered compensable psychological injury and emotional distress "when he felt abandoned by Mossholder-Brom after attempting unsuccessfully to locate him . . . resulting in a feeling of unrequited love after Mossholder-Brom left Rainbow House." The State does not challenge any of these findings and/or conclusions.
The Circuit Court awarded Plaintiff $4,000 in special damages for psychosexual or neuropsychological testing, but did "not award other special damages for past or future treatment of any kind." The Circuit Court further awarded Plaintiff $200,000 in general damages for Michael's psychological injury and emotional distress.
On October 6, 2009, Plaintiff filed a motion for attorney's fees pursuant to HRS § 662-12 (1993)
On November 4, 2009, the Circuit Court filed its order granting in part and denying in part Plaintiff's motion for attorney's fees and costs. The Circuit Court awarded Plaintiff costs in the amount of $11,742.61, and denied the request for attorney's fees pursuant to HRS § 662-12.
Final judgment was entered on November 17, 2009, in favor of Plaintiff and against the State and Mossholder-Brom. The State filed its notice of appeal on December 15, 2009. On December 28, 2009, Plaintiff filed a notice of cross-appeal.
The State raises a single point of error, contending that "[t]he trial court erred by denying the State's motion to dismiss."
Plaintiff raises three points of error:
(1) contending that the Circuit Court clearly erred when it entered Findings of Fact (FOFs) 67-74,
(2) contending that, based on the foregoing erroneous FOFs, the Circuit Court erred in Conclusion of Law (COL) 75,
(3) contending that the Circuit Court abused its discretion when it denied Plaintiff's request for an award of attorney's fees.
"In this jurisdiction, a trial court's FOFs are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed."
Findings of fact are not to be viewed in isolation, but are "to be construed so as to render them complete and internally consistent, thus avoiding a reversal on purely technical grounds."
The State argues that Plaintiff's claims against the State, which were first brought before the MCCP on September 25, 2007, are time-barred by Hawaii Revised Statutes (HRS) § 662-4 (1993), because Michael's injuries occurred in 2002 and were discovered no later than October of 2003.
HRS § 662-4 provides:
(Emphasis added.)
The State argues (1) that Plaintiff's claim is not a medical tort and therefore HRS § 657-7.3 does not apply, and (2) even if it is a medical tort, it is time-barred by the HRS § 657-7.3. We address each of these in turn.
Plaintiff's claim is a medical tort. The term "medical tort" is defined in HRS § 671-1(2) (1993)
(Emphasis added.)
The term "health care provider" is defined in HRS § 671-1(1) (1993)
(Emphasis added.)
The term "health care facility" is defined in HRS § 323D-2 (2010) as follows:
(Emphasis added.)
The State argues:
This argument is without merit. The Circuit Court found and concluded, and the State does not challenge, inter alia, that: (1) on or about January 23, 2002, "DOH assumed the responsibility of placing Michael in a structured group home capable of providing `intensive psychotherapy with a therapist' and ongoing medication management by a psychiatrist"; (2) Michael was admitted to Rainbow House on February 13, 2002, with Mossholder-Brom acting as his personal and family therapist; (3) the State was required by law to coordinate effective and efficient delivery of mental health services to Michael; (4) the State had a duty to meet the applicable professional standard of care for the mental health treatment Michael received; and (5) the State's "negligence was a legal cause of the injuries suffered by Michael at Rainbow House, as it was not clinically appropriate to refer Michael to Rainbow House and Michael would not have been exposed to Mossholder-Brom or other inadequately supervised residents of Rainbow House if the necessary credentialing and oversight had been followed." These unchallenged findings and conclusions clearly indicate that the State was acting as a health care provider and that the allegations against the State constitute a medical tort pursuant to Hawai`i's statutes and as previously interpreted by Hawai`i courts.
When a claim asserted against the State alleges a medical tort, HRS § 657-7.3 is applied. Having concluded that Plaintiff's claim is a medical tort, we review the State's argument that Plaintiff's action is, nevertheless, time-barred by HRS § 657-7.3. HRS § 657-7.3 (1993)
Relying on the first paragraph of HRS § 657-7.3, and dismissing the applicability of the second paragraph, the State in effect argues that the statute bars all claims brought more than two years after the discovery of the injury, notwithstanding the minority of the injured person. We reject this argument.
The second paragraph of HRS § 657-7.3 specifically applies to actions by minors and provides that an action "shall be commenced within six years from the date of the alleged wrongful act[.]" It is clear from the legislative history, as well as the plain language of the statute, that injured minors have no less than six years to seek redress for their injuries.
Michael's injuries occurred over the period approximately ranging from February through October of 2002. Michael, who was fifteen when he was placed at Rainbow House, was a minor when the wrongful acts occurred. The claims against the State were asserted no later than September of 2007, well within the six-year statute of limitations.
Plaintiff challenges eight written findings of fact, FOFs 67-74, entered by the Circuit Court, two related oral findings, and the Circuit Court's related conclusion, COL 75, that, with the exception of certain psychosexual or neuropsychological testing, Plaintiff should not be awarded any special damages for past or future treatment. Because they are inter-related, we consider these findings individually and collectively, as well as in conjunction with the Circuit Court's other findings and conclusions and the whole record of the evidence presented at trial.
The challenged findings include the Circuit Court's rejection of Dr. Matthews's opinion, as not credible, that Michael was or was likely to become a sexual predator. It is well-established that "the credibility of witnesses and the weight to be given their testimony are within the province of the trier of fact and, generally, will not be disturbed on appeal."
The Circuit Court's findings and determination that Michael did not require any treatment whatsoever for his injury, however, are irreconcilably inconsistent with and contradictory to the Circuit Court's unchallenged findings concerning the injury he suffered, the overwhelming and uncontradicted evidence in the record, the Circuit Court's "counseling" of Michael in FOFs 73 and 74, the award of special damages for future psychosexual or neurophysical testing, and the Circuit Court's award of substantial general damages for Michael's suffering.
The Circuit Court's unchallenged factual findings
In addition, although not incorporated in the Circuit Court's FOFs and COLs, the evidence in the record includes: (1) prior to the sexual incidents with Mossholder-Brom and the group-sex incident, Michael had never had sex with anyone; (2) since then, Michael has reported "bad dreams" about what Mossholder-Brom had done to him, which were continuing at the time of trial; (3) Michael testified that he "really need[s] help" about his "sexual issues", that he has a "sex problem", that he looks for sex on the internet, that he goes to public bathrooms, beaches, video/porn shops, and that he wants to stop doing that; (4) Michael testified that he has unprotected sex because he asks the people if they have AIDS/HIV and they said no; (4) Michael's therapist, Dr. Carlson, testified that, because of his Tourettes, Michael can become overly focused and perseverate, "meaning that he becomes compulsive and obsessed with ideas, people, events, or things he wants" and is unable to stop; (5) Dr. Carlson, who worked with Michael over an 18-month period, testified that "because the [sexual] abuse happened when it did, it messed up [Michael's] perception of boundaries and what he has the right to say yes or no to and what adults want from him . . . it just lifted the sexual compulsions to a [] pathological level"; (6) Dr. Carlson further testified that Michael was perseverating about "getting out in the world and hooking up" and was repeatedly suicidal or threatened suicide; (7) Carlson testified that, for Michael to deal with his perseveration over sexual activity, he needs a comprehensive program "run by adults who have the ability to have significant boundaries with him and model for him appropriate ways of interacting"; she was not aware of any facilities like that in Hawai`i; (8) Dr. Matthews testified that, although Michael had behavioral problems prior to his admission to Rainbow House, there had been no indication of sexual misbehavior, sexual aggression, or sexual identity confusion; (9) Dr. Matthews testified that Mossholder-Brom choked and punched Michael during sexual activity and would undergo "aggressive sexual behavior towards each other"; after that, on one occasion that Dr. Matthews was aware of, Michael developed an erection while he was being restrained, all of which Dr. Matthews viewed as indicative of a paraphilic interest in violence (an arousal pattern associated with violence); (10) Dr. Matthews further testified that, after the sexual molestation incidents at Rainbow House, Michael became "somewhat hypersexual," disregarded any conventional sexual boundaries, was seeking sex in video emporia, public restrooms, through the internet, and had unprotected sex with adults and possibly youths; (11) Dr. Matthews testified to the distinction between Michael's underlying problems and the problems that flowed from the sexual molestation; and (12) Dr. Matthews testified that the goals for Michael's treatment included reducing the sexual acting-out behavior and paraphilic behavior, to improve anger management skills and relationship skills, to reduce Michael's tremendous dependence on others for emotional support, and that without "massive intervention" Michael's prognosis was poor.
The State called no expert witnesses, nor did it call any other witnesses to testify about Michael's need for treatment for the injuries resulting from the extended period of sexual assaults by his trusted therapist. There were no records, reports or exhibits in evidence contradicting Dr. Carlson's and Dr. Matthews's testimony that Michael needed treatment. The Circuit Court does not point to any evidence in support of the finding that "Michael does not require a course of residential psychosexual treatment or any other treatment for any injury resulting from the conduct of Mossholder-Brom" and we find none.
Although concluding that Michael did not need any professional treatment as a result of the sexual abuse and the "injurious mental health care treatment and infliction of emotional distress" suffered by Michael as a result of the State's negligence, the Circuit Court found it "appropriate" for the court to "counsel" Michael in FOFs 73 and 74 about the danger of AIDs stemming from high-risk behaviors such as "having a lot of sexual contact, a lot of anal intercourse, a lot of oral intercourse," and/or having "unprotected sex or engag[ing] the services of male or female prostitutes". While clearly well-intended, the Circuit Court's counseling in these findings was based on the court's personal experiences and opinions, rather than any medical or other expert opinion delivered in this case. As Plaintiff argues, the court's substitution of these admonitions — given to a mildly retarded person who suffers from Tourette's disorder, other mental and behavioral maladies, and who has been adjudicated to be an incapacitated person under Hawai`i law — for professional treatment is ungrounded in the evidence in the record of this case and the law. Albeit in another context, the Hawai`i Supreme Court has noted that "mental health counseling, . . . like psychiatric care, is a professional realm beyond the expertise of the judiciary."
Finally, we examine the alleged inconsistencies in the damages award set forth in COL 75, wherein the Circuit Court awarded Plaintiff $4,000 in special damages "for psychosexual or neuropsychological testing as recommended by Plaintiff's expert psychiatrist, Dr. Matthews", but did not award other special damages for past or future treatment of any kind. As argued by Plaintiff, the special damages award for testing is based on the following testimony by Dr. Matthews:
The cost of this testing was established through the testimony of Karen Klemme, a board-certified rehabilitation registered nurse and board-certified nurse life care planner, who collaborated with Dr. Matthews "to determine how [Dr. Matthews's] treatment plan could be implemented and the costs associated with his treatment plan." Karen Klemme testified that the costs for the neuropsychological testing was $2,000 and the costs for the psychosexual testing was in a range between $2,000 and $5,000.
Plaintiff submits that the award of special damages for "psychosexual or neuropsychological testing as recommended by Plaintiff's expert psychiatrist, Dr. Matthews" is completely irreconcilable with the conclusion that Michael does not need any future care or treatment whatsoever because Dr. Matthews's above-referenced testimony, in conjunction of his other testimony and the record as whole, can only be understood to require such testing as a step in Michael's treatment. The State acknowledges that Dr. Matthews's treatment plan included pre- and post-treatment testing, but otherwise ignored the manifest contradictions in the Circuit Court's findings and conclusions, and the clear findings and overwhelming evidence of sexual abuse, substandard care and resulting injuries, instead focusing on the Circuit Court's rejection of Dr. Matthews's opinion that Michael was not, and was not likely to become, a sexual predator or to be victimized.
Finally, we take into consideration the Circuit Court's unchallenged award (in COL 76) of substantial general damages, in the amount of $200,000, for Michael's psychological injury and emotional distress. To recover as special damages the value of future medical expenses, a plaintiff must provide sufficient evidence to show that future medical expenses are necessary and the charges reasonable.
Plaintiff contends that the Circuit Court abused its discretion when it denied Plaintiff's request for attorney's fees. In light of our decision to vacate in part and remand this case for further proceedings, we vacate the order denying attorneys' fees to allow further consideration of the issue in conjunction with the trial court's further ruling on the issue of damages.
For the foregoing reasons, we vacate in part and remand this case to the Circuit Court for further proceedings on the issues of special damages and attorney's fees. In all other respects, the Circuit Court's November 17, 2009 Judgment is affirmed.
