Campano v. United States of America
FINDINGS OF FACT AND CONCLUSIONS OF LAW. "In accordance with the...findings of fact and conclusions of law, the Court HEREBY ORDERS that judgment enter in favor of Plaintiffs and against Defendant in the amount of $24,743,668 .53, which represents $22,443,668.53 to Plaintiff Marites Campano; $950,000.00 to Plaintiff Rafael Campano; $450,000.00 to Plaintiffs Marites and Rafael Campano as next friend of R.M.B.C.; $450,000.00 to Plaintiffs Marites and Rafael Campano as next friend of R.B.B.C.; and $450,000.00 to Plaintiffs Marites and Rafael Campano as next friend of M.R.B.C. Defendant is ORDERED to remit payment to Plaintiffs, through counsel, within 60 da ys of the entry of judgment." IT IS SO ORDERED. Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 3/7/2018. (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARITES CAMPANO and RAPHAEL
CAMPANO, Individually and as the
Court-Appointed Next Friend for
the Minor Children R.M.B.C,
R.B.B.C., and M.R.B.C.,
UNITED STATES OF AMERICA,
) CIVIL NO. 15-00439 KSC
) FINDINGS OF FACT AND
) CONCLUSIONS OF LAW
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court conducted a jury-waived trial in this matter
on December 5 to 8 and 11 to 12, 2017.
L. Richard Fried, Jr.,
Esq., John D. Thomas, Jr., Esq., and Geoffrey K.S. Komeya, Esq.,
appeared on behalf of Plaintiffs Marites and Rafael Campano,1
individually and as the court-appointed next friend for the
minor children R.M.B.C., R.B.B.C., and M.R.B.C. (collectively
Assistant U.S. Attorney Harry Yee appeared on
behalf of Defendant United States of America (“Defendant”).
Court has considered all the evidence presented, observed the
demeanor of witnesses and evaluated their credibility and
candor, considered the arguments of counsel, and considered the
Rafael Campano’s name is misspelled in the case caption.
Pursuant to Federal Rule of Civil Procedure 52,
the Court makes the following Findings of Fact and Conclusions
of Law, and CONCLUDES, for the reasons articulated below, that
Plaintiffs are entitled to $24,743,668.53 in damages.
finding of fact that should more properly be deemed a conclusion
of law and any conclusion of law that should more properly be
deemed a finding of fact shall be so construed.
FINDINGS OF FACT
This is a medical negligence case involving severe and
permanent injuries to Plaintiff Marites Campano (“Marites”),
including end-stage renal disease (“ESRD”) requiring
hemodialysis, multiple renal transplants, and immunosuppressant
medication to prevent rejection of the transplant, all for the
remainder of Marites’ life.
Marites was severely and permanently injured as a
result of sepsis caused by a group A streptococcus (“GAS”)
bacterial infection that was not timely diagnosed or treated
with antibiotic therapy by her physicians and care providers at
Tripler Army Medical Center (“Tripler” or “TAMC”) (“incident”).
Plaintiffs initiated this action against Defendant
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)
and 2671 et seq., alleging that Marites’ care and treatment at
Tripler starting on July 22, 2013, fell below the requisite
standard of care, and that as a result of this violation by
Tripler of its duty of care, Marites suffered severe and
Plaintiffs filed their administrative claims on
September 8, 2014, under the provisions of the FTCA.
were received by the Department of the Army on September 10,
Plaintiffs commenced the instant lawsuit on October
20, 2015, after Defendant failed to either admit or deny said
administrative claims within six months of the filing thereof.
Plaintiffs have complied with all jurisdictional and
procedural prerequisites to suit.
They have timely and properly
presented their claims under the FTCA to the appropriate Federal
At all times relevant to this action, Plaintiffs were
domiciled in and citizens of the City and County of Honolulu,
State of Hawaii.
Marites was born in 1976 in Ilocos Norte, a province
in the Philippines.
[Testimony of Marites B. Campano in
Transcript of Non-Jury Trial Before the Honorable Kevin S.C.
Chang, United States Magistrate Judge on Tuesday, December 12,
2017 (“Marites 12/12”)2 at 39:13, 14-17.]
In 1993, Marites graduated from St. Joseph High School
in Dingras, Ilocos Norte.
[Id. at 40:10-20.]
In 1998, Marites obtained an Associate’s Degree in
Computer/Secretarial Science from the Divine Word College of
Laoag in Laoag City, Philippines.
[Id. at 40:21-41:9.]
Marites was employed as a sales clerk at a store
called Fashion and Decor in Ilocos Norte and as a cashier at SM,
the biggest shopping center in the Philippines, located in
[Id. at 48:1-7.]
Marites also led hundreds of young people for seven to
eight years as an “SK Chairman,” an elected youth governmental
official in her area in the Philippines.
[Id. at 48:11-49:2.]
In November 2007, Marites came to the United States.
[Id. at 39:19.]
From 2008 to 2010, Marites was a cashier at Golden
[Id. at 43:18-21.]
In 2010, Marites obtained a Certified Nursing
Assistant certification from Healthcare Training and Career
[Id. at 41:10-42:1.]
Future references to trial transcripts will identify the
applicable witness and date.
From 2010 until her injury at Tripler in July 2013,
Marites was employed as a full-time Certified Nursing Assistant
at The Plaza at Mililani.
[Id. at 42:13-17; 50:15-17.]
Plaintiff Rafael Castro Campano (“Rafael”) was born
in 1976 in Ilocos Norte.
In 1993, Rafael graduated from high school in the
[Rafael 12/7 at 131:6-14.]
[Id. at 131:17-20.]
In 1996, Rafael received a Diploma of Technology in
Automotive Mechanics from the Mariano Marcos State University
Institute of Technology in Laoag City, Philippines.
In 2001, Rafael received a Bachelor’s Degree in
Physical Therapy from the Mariano Marcos State University in
Batac City, Ilocos Norte.
[Id. at 132:11-21.]
In September 2004, Rafael moved to Hawaii.
After arriving in Hawaii, Rafael was briefly employed
as a building maintenance worker, then as a physical therapy
[Id. at 135:24-136:18.]
In October 2005, Rafael enlisted in the U.S. Navy,
and remains in the Navy’s employ.
[Id. at 136:19-24.]
In December 2013, Rafael received a Bachelor of
Science in Nursing from Hawaii Pacific University.
In January 2014, Rafael became a licensed Registered
Nurse in Hawaii.
[Id. at 135:4-7.]
Rafael hopes to obtain a Master’s Degree in Nursing,
but Marites’ injuries have prevented him from doing so.
Had Marites not suffered the injuries from the subject
incident, Rafael believes that he would have entered a Master’s
Degree program and possibly already obtained a degree.
A Master’s Degree in Nursing would improve Rafael’s
chances for promotion in the Navy because such accomplishments
factor into career advancement.
Rafael also aspires to be an Advanced Practice
[Id. at 134:3-13, 17-19.]
[Id. at 134:20-135:3.]
Rafael’s current rank is Lieutenant Junior Grade, and
his promotion to full Lieutenant is expected in December 2017.
[Id. at 134:14-16; 136:25-137:6.]
The Campano Family
Marites and Rafael have been together since 1998, and
were married on April 8, 2005.
[Marites 12/12 at 49:21-22, 24.]
Marites and Rafael’s eldest son, Plaintiff R.M.B.C.,
was born in 1999 in the Philippines.
He came to Hawaii in 2004
with Rafael, but returned to the Philippines until 2007, at
which time he moved to Hawaii with Marites and his younger
brother, Plaintiff R.B.B.C.
[R.M.B.C. 12/7 at 87:23-88:8,
R.M.B.C. attends high school in San Diego and is
currently a senior with a 4.0 grade point average.
R.M.B.C. plans to attend college at the University of
Hawaii at Manoa, Northern Arizona University, or Washington
[Id. at 106:10-13.]
R.M.B.C. aspires to become a fighter pilot in the Air
[Id. at 106:14-19.]
Marites and Rafael’s younger son, R.B.B.C., was born
in 2001 in the Philippines.
He is presently attending high
school in San Diego and has a 3.6 grade point average.
[R.B.B.C. 12/7 at 116:9-25, 127:1-5.]
R.B.B.C. is considering majoring in mechanical
engineering and would like to join the Navy as a mechanical
[Id. at 128:13-17.]
Marites and Rafael’s youngest child and daughter,
Plaintiff M.R.B.C, was born during the incident at Tripler.
[Rafael 12/7 at 140:6-15; Ex. J-1, TAMC2 3679-81, 3838-39, 5059;
Ex. J-2, TAMC 2057-59, 3054.]
Rafael recently relocated to San Diego, California, to
be trained at Balboa Naval Hospital.
[Rafael 12/7 at 142:1-10.]
Prior to the relocation, the Campano family lived in
Mililani with Rafael’s brother, Paquito, and Marites’ mother.
[Id. at 142:14-20.]
Rafael hopes to serve in the Navy for eight more
years, at which time he will be eligible for retirement.
Following Rafael’s retirement, Plaintiffs intend to
return to Hawaii.
[Id. at 146:3-8.]
In the event Marites requires hemodialysis again, the
Campanos would return to Hawaii because of the required family
support, even if it means that Rafael is forced to leave the
Navy prior to his eligibility for retirement.
[Id. at 143:14-
Stipulation as to Liability
The parties stipulated to Defendant’s sole liability
for the injuries sustained by Marites in the July 22, 2013
hospitalization at Tripler.
[Doc. No. 123.]
additionally stipulated that they shall not elicit any testimony
or offer any proof at trial on the issue of liability.
Stipulatio n a s t o Expert Qua lificatio ns
The parties stipula t ed that the knowl edge , ski l l ,
experience , t raining and/or education o f the follow i ng wit nesses
sa ti sfy Federal Rule o f Evi dence (" FRE " ) 702 ' s standar ds f or
expert qual ifications in t heir respec t ive f ields of expert ise as
se t out i n the tabl e be l ow :
Ching , J e ff rey D. S . , M. D.
Fount aine , Joh n
Friedman , St uart
Kle i n , Keith L.' M. D.
Laudat , Thomas A .' Ph. D.
M r vit , Robe r t c .' M. D.
eyers , Je ffr ey E .
Ponce , Dan i lo E . ' M. D.
Riddick- Gr i sham, Susan
10 . Smith , Eric s . ' Ph . D.
Field o f Expertise
Eme r gency and I nte r nal
Li f e Care Pl anning
Nephrol ogy , Inte r na l
Medicine , Life Expec t ancy
Psych ia try , Gene r a l Medi cine
Economi c Loss Projec ti ons and
Psych ia try
Life Care Pl anning , Case
Forens i c Psychology
The parties were no t required to presen t oral test imony a t t ria l
r egardi ng t he qual ifications of t he above wit nesses f or pur poses
o f estab l is h ing FRE Rule 702 qual ifications .
[Doc . No . 1 2 4 . ]
S t ipulatio n a s t o Pa s t and Future Wage Lo ss Dama ges
The parties stipula t ed that the inci den t caused
M ites to suff er $538 , 092 . 00 i n past and f u t ure wage l oss , as
r e fl ected i n the t abl e below :
Past Wage Loss
Present Value Futur e
$89 , 012 . 00
$507 , 202 . 00
Ne t Income
$8 , 470 . 00
$49 , 652 . 00
To tal Ne t
Wage Lo ss
$80 , 5 4 3 . 00
$ 457 , 5 4 9 . 00
$596 , 2 1 5 . 00
$58 , 122 . 00
$ 5 38,0 92 . 0 0
[ Doc . No . 12 6 . ]
Stipulatio ns as to Exhibits
Th e parties stipula t ed to the admiss i bility f or a l l
purposes of a l l exhib its on the joint exh i bi t l ist , Exh ibits J - 1
t h rough J - 91, and to the aut henticity o f Plaintiff s ' Exh i bits P56 thr ough 71 .
[ Doc . No . 1 15 . ]
Th e parties stipula t ed to the admiss i bility f or a l l
purposes of Joint Exh i bi t s J - 92A and J - 92B .
[Doc . No . 1 30 . ]
The Inc ide n t
Mar ites ' estimated due date was July 24 , 2013 .
Despite Marit es ' advanced mate r nal age , her p r egnancy was
uncomp l icated .
There was no indicat i on o f issues with Marites
or M.R . B . C . , or antic i pa t ion of p r ob l ems with the b i rth .
J - 1 at TAMC2 2523 , 2533 - 34 , 7323 - 24 , 7380 - 82 ; Ex . J - 3 at TAMC
(CHRONO) 153- 54 ; Ex . J - 11 a t MAKALAPA 927 - 28 ,
984 - 86] .
Mar ites present ed to Tripler at 11 : 40 a . m. on July 22 ,
2013 , and was admit t ed to l abor and delivery .
t herea f t er i nduced .
[Ex . J - 1 at TAMC2 3669 , 3830 ; Ex . J - 2 at
TAMC 860 - 61 1888 , 2049 - 57 .]
Within hours of arrival, Marites became clammy and
pale, and experienced intermittent episodes of hypotensive low
blood pressure and a tachycardic heart rate ranging from 120 to
150 beats per minute.
Notwithstanding the administration of
multiple fluid boluses and an IV, Marites’ symptoms did not
[Ex. J-1 at TAMC2 3673-77, 3834-37, 4469, 5057-59; Ex.
J-2 at TAMC 1117, 1888, 2049-57, 2505.]
M.R.B.C. was born at 1:10 a.m. on July 23, 2013.
J-1 at TAMC2 3679-81, 3838-39; Ex. J-2 at TAMC 2057-59.]
Marites experienced repeated and increasing episodes
of hypotension and tachycardia after her transfer to the
[Ex. J-1 at TAMC2 3185, 3190, 3198, 3218; Ex.
J-2 at TAMC 1404, 1409, 1417, 1437.]
A number of measures were taken to alleviate Marites’
fluctuating level of pain.
[Exs. J-1, J-2.]
Marites was not producing urine due to her failing
As a result, she was catheterized at least eight times
to drain her bladder.
[Ex. J-2 at TAMC 1117, 1120-21, 3496.]
At approximately 5:45 a.m. on July 24, 2013, the
Tripler Rapid Response Team independently noticed Marites’
[Ex. J-2 at TAMC 3477-80; Rafael 12/7 at 149:25-
By the time the Rapid Response Team intervened,
Marites had been in near constant pain for approximately 48
hours and her condition deteriorated into sepsis.
[Ex. J-1 at
TAMC2 5927-28, 6885-86; Ex. J-2 at TAMC 458; Ex. J-11 at
Despite her need for immediate escalation of care and
acute intervention, Marites’ admission to the intensive care
unit (“ICU”) was delayed for another two hours.
[Ex. J-1 at
By the time she was finally admitted to the ICU,
Marites’ blood tests indicated she was in metabolic acidosis
with accompanying compensatory respiratory alkalosis.
at TAMC 3478, 3542-44.]
The respiratory alkalosis caused her respiratory rate
to increase in an effort to compensate for the increased
acidosis, which in turn led to a decreased level of carbon
dioxide in her bloodstream.
[Id. at TAMC 3477-79, 3543.]
After arriving at the ICU, Marites was intubated due
to worsening respiratory distress.
[Id. at TAMC 3604.]
Concerned with vaginal bleeding in the afternoon of
July 24, 2013, the OB/GYN team decided that Marites should
undergo a dilation and curettage (“D&C”) procedure.
The same day, Drs. Tamarin McCartin and Jason Patzwald
performed the D&C procedure.
Although they did not identify any
sources of bleeding or infection, they remarked that Marites’
acute renal failure and disseminated intravascular coagulation
(“DIC”) were presumed to be secondary to sepsis and that her
condition was critical.
[Ex. J-1 at TAMC2 2332-33; Ex. J-2 at
TAMC 3067-68, 3460, 3599, 3581-82.]
Dr. Bradford Whitcomb, a gynecologic oncologist,
evaluated Marites in the operating room and noted her
overwhelming sepsis and renal failure.
[Ex. J-2 at TAMC 3583.]
Dr. Jeffrey Ching described Marites’ hospital stay as
a “stormy ICU and hospital course” during which her condition
deteriorated to “classic sepsis and disseminated intravascular
coagulopathy (DIC) with markedly abnormal labs, positive blood
cultures and eventually multi-organ injury.”
[Dr. Ching 12/11
at 102:14-18, 103:10-12; Ex. J-47 (Dr. Jeffrey Ching Report)
DIC further complicated Marites’ condition.
DIC is a
complex reaction, usually from a very serious infection, where
blood functions stop working, which eventually leads to multiorgan failure or multi-organ damage.
[Dr. Ching 12/11 at
Marites suffered many of the typical complications of
DIC including multi-organ system failure and permanent multiorgan damage of her kidneys.
[Id. at 103:4-9.]
Marites also sustained adult respiratory distress
syndrome, a complication related to DIC where the lungs fill
with fluid, making it difficult to breathe.
placed on a respirator as a result.
[Id. at 103:13-104:2.]
Marites required multiple red blood cell and platelet
transfusions as a result of the DIC.
Marites had to be
[Id. at 102:19-21.]
Dr. Nealanjon Das, a nephrologist, evaluated Marites
during the night on July 24, 2013.
He opined that Marites had
suffered permanent and irreversible kidney damage from the
sepsis and determined that her prognosis for regaining dialysisindependent renal function was “very grim”.
[Ex. J-1 at TAMC2
2993; Ex. J-2 at TAMC 454, 463-64.]
Dr. Das ordered Marites to be placed on continuous
renal replacement therapy (“CRRT”), or kidney dialysis.
1 at TAMC2 2993, 3699; Ex. J-2 at TAMC 454, 2073.]
An infectious disease consult confirmed that Marites’
sepsis was related to a GAS infection leading to bacteremia,
toxic shock syndrome, and puerperal sepsis.
[Ex. J-1 at TAMC2
2999-3001; Ex. J-2 TAMC 460-62.]
Marites required heavy sedation while intubated.
had an abnormal heart rhythm, her lungs were compromised by the
infection, and she was agitated.
[Ex. J-1 at TAMC2 3002-06; Ex.
J-2 at TAMC 463-64, 466-67.]
On July 27, 2013, Marites extubated herself and oxygen
was administered via mask.
[Ex. J-1 at TAMC2 4641-42; Rafael
12/7 at 153:17-154:23.]
While off the ventilator, Marites experienced issues
with oxygen saturation and her mental status declined.
agitated, confused, and disoriented.
[Ex. J-1 TAMC2 2557-60;
Ex. J-2 TAMC 18-20].
Marites had to be reintubated due to oxygen saturation
[Ex. J-1 at TAMC2 2563.]
On August 4, 2013, Marites was transferred to the
Progressive Care Unit (“PCU”).
[Ex. J-1 at TAMC2 2625.]
On August 5, 2013, sonogram and ultrasound studies
indicated that Marites likely had gallstones that would require
surgical attention, but her compromised condition prevented her
from tolerating a surgical procedure.
[Id. at TAMC2 3032-34.]
Marites experienced intense pain in her abdomen
related to her gallbladder and stones.
On August 6, 2013, an
endoscopic retrograde cholangiopancreatography (“ERCP”)
procedure was performed to stent her biliary duct in an effort
to relieve her pain.
[Ex. J-1 at TAMC2 3850-51; Ex. J-2 at TAMC
The ERCP procedure also revealed that Marites had a
large duodenal ulcer, which was likely a stress ulcer from her
condition at the time.
[Ex. J-1 at TAMC2 2391-92, 7651-52; Ex.
J-2 at TAMC 3019-20; Ex. J-11 at MAKALAPA 1251-52; Dr. Ching
12/11 at 109:4-8.]
On August 7, 2013, Marites began hallucinating and
experienced increased confusion and changes to her mental
She was unaware of her whereabouts and could not
[Ex. J-1 TAMC2 2676, 3852-53; Ex. J-2 TAMC
Marites’ physicians contemplated transfer to Queen’s
Medical Center (“Queen’s”) due to concerns that Marites may need
a liver transplant.
However, Dr. Linda Wong, a transplant
surgeon at Queen’s, rejected Marites because she believed that
Marites’ condition was merely cholestasis.
[Ex. J-1 at TAMC2
Marites was alert and oriented only to herself, and
was uncooperative with nursing assessments.
She stated “I’m
going to die,” became increasingly clingy with Rafael, and had
limited interaction with visitors and her sons.
changes to Marites’ mental status prevented her from identifying
herself or Rafael at times.
[Id. at TAMC2 2692-93.]
On August 8, 2013, Marites had to be placed in wrist
restraints because she continually attempted to pull out her
nasogastric feeding tube.
[Id. at TAMC2 2693-94.]
Because the precise neurological cause for Marites’
neurological abnormalities could not be identified, she
underwent a lumbar puncture to check for causes such as
[Id. at TAMC2 2704.]
The results of the tests of Marites’ cerebrospinal
fluid were not consistent with meningitis.
[Id. at TAMC2 3871-
From August 9 to 10, 2013, Marites alternated from
distant and random stares, to chattiness with repetition of
certain phrases, to constantly opening her eyes, to constantly
closing her eyes.
[Id. at TAMC2 2705, 2720-21, 4079-84.]
Although an MRI showed increased reactivity in the
pituitary gland, Marites’ providers concluded that her altered
mental status was most likely attributable to bilirubin
[Id. at TAMC2 2728, 3881-84, 7273-77; Ex. J-11
at MAKALAPA 877-81.]
Marites’ mental status slowly improved in the days
that followed, but she continued to suffer from multiple medical
conditions, including a bleeding duodenal ulcer, gallstones, and
impaired renal function.
[Ex. J-1 at TAMC2 3906-07, 7258; Ex.
J-2 at TAMC 558-59; Ex. J-3 at TAMC CHRON 87; Ex. J-11 at
On August 15, 2013, Marites was referred for a
permanent catheter placement to facilitate her hemodialysis.
[Ex. J-1 at TAMC2 2421-23.]
On August 17, 2013, Marites was transferred from the
PCU to the Mother Baby ward.
[Id. at TAMC2 2786.]
On August 24, 2013, Marites was discharged from
[Id. at TAMC2 2791.]
Marites began receiving outpatient dialysis three
times a week at Pearlridge Dialysis Clinic on August 27, 2013.
[Id. at TAMC2 2988-89; Ex. J-2 at TAMC 449-50.]
On September 4, 2013, Marites went to the emergency
department at Tripler with intense abdominal pain.
[Ex. J-1 at
Radiological studies indicated that Marites continued
to have symptomatic cholecystitis (gallstones), but she also had
ascites, or a large collection of fluid in the abdomen.
Dr. Ching attributed Marites’ ascites to her
experience at Tripler.
[Dr. Ching 12/11 at 108:15-22.]
Marites was admitted to the PCU and scheduled for a
paracentesis procedure to drain fluid from her abdomen.
1 at TAMC2 7208-10; Ex. J-3 at TAMC CHRON 36-38, 352-57; Ex. J11 at MAKALAPA 811-15.]
Blood cultures returned positive for bacterial
peritonitis, but because of her acute condition, Marites’
providers were reluctant to subject her to invasive procedures.
[Ex. J-1 at TAMC2 208-09.]
As a compromise, on September 7, 2013, a percutaneous
cholecystostomy was performed, which involves the insertion of a
drainage catheter into the gallbladder lumen under radiologic
guidance to provide temporary relief from accumulated fluid and
sludge until definitive surgical treatment can be performed.
[Id. at TAMC2 222-23, 6848-51, 7644-745; Ex. J-2 TAMC 3038-39,
3285-87; Ex. J-11 at MAKALAPA 495-99.]
100. The percutaneous cholecystostomy immediately improved
Marites’ symptoms, but her condition deteriorated over the next
The increasing abdominal pain prompted an ultrasound
on September 17, 2013, which revealed several foci of ascites.
[Ex. J-1 at TAMC2 305-07.]
101. On September 18, 2013, Marites’ providers recommended
a full-blown diagnostic abdominal laparotomy and washout
surgery, along with a surgical cholecystostomy (gallbladder
removal), having determined that her condition could not be
resolved with percutaneous drainage.
[Id. at TAMC2 314.]
102. Two liters of ascites fluid were drained from Marites’
abdomen during the surgery.
[Id. at TAMC2 9-11, 314-16, 417,
7631-33; Ex. J-2 at TAMC 3023-25, 3094-95; Ex. J-11 at MAKALAPA
103. While Marites initially showed signs of improvement,
she developed an ileus in her intestine and was unable to
consume food by mouth.
[Id. at TAMC2 541-42, 548-50.]
104. Upon discovery of a bile leak, Marites underwent an
ERCP procedure to install a biliary stent.
[Id. at TAMC2 556,
105. Post-operative attempts to return Marites to food by
mouth were unsuccessful, resulting in persistent nausea and
[Id. at TAMC2 379-81.]
106. Marites was finally discharged on October 3, 2013.
VII. Issues Following Second Hospitalization
107. In the weeks that followed, Marites had difficulty
adjusting to her condition and being a new mother to M.R.B.C.
[Ex. J-13 at DSI 36-53.]
108. Marites required a wheelchair and four-wheel walker
for mobility which, in a small multi-level townhouse living with
six other people, proved to be especially challenging.
109. Marites became depressed and suffered from insomnia.
[Id. at DSI 50-51.]
110. On December 25, 2013, Rafael took Marites to the Pali
Momi emergency department because she was experiencing
intermittent severe dizziness.
Marites was diagnosed with
[Ex. J-14 at PALI MOMI 8-14, 20-21, 39.]
111. On January 16, 2014, a repeat paracentesis was
performed and two liters of fluid were removed.
[Ex. J-1 at
TAMC2 7070-72, 7584-87; Ex. J-2 at TAMC 3189-92; Ex. J-11 at
MAKALAPA 674-76; Ex. J-16 at SURG ASSO 35-36.]
112. On January 17, 2014, Marites returned to the Makalapa
Clinic for pain at her permacath site and was provided
additional antibiotics to address community-acquired MRSA.
J-3 at TAMC CHRON 253-55; Ex. J-11 at MAKALAPA 671-73.]
113. On January 22, 2014, Marites was diagnosed with
cellulitis at the catheter insertion site.
[Ex. J-1 at TAMC2
7061-65; Ex. J-3 at TAMC CHRON 246-51; Ex. J-11 at MAKALAPA 66569.]
114. On February 19, 2014, Marites underwent another
The procedure was unsuccessful due to suspected
adhesions that impaired the ability to drain fluid.
[Ex. J-1 at
TAMC2 7048-52; Ex. J-3 at TAMC CHRON 231-36; Ex. J-11 at
115. Marites was referred to Queen’s transplant program for
evaluation of candidacy for a kidney transplant, and was
accepted into the program on February 28, 2014.
[Ex. J-12 at
QMC 120, 131, 139-48.]
116. Marites subsequently began experiencing episodes of
[Ex. J-1 at TAMC2 7041-44; Ex. J-3 at TAMC CHRON
224-27; Ex. J-11 at MAKALAPA 645-48.]
117. Marites’ nephrologist, Dr. Noah Solomon, suspected
that her continuing insomnia stemmed from her depression and
post-traumatic stress disorder (“PTSD”) related to the incident.
He recommended psychiatric evaluation and treatment.
at NOKS 53-54, 188-89.]
118. Dr. Solomon further recommended that Marites proceed
with an AV fistula installation by a vascular surgeon due to the
extended time of her need for dialysis and the lack of any
indication that she would recover any appreciable renal
[Id. at NOKS 55, 190.]
119. On March 27, 2014, Marites consulted a psychiatrist
for the first time, who provisionally diagnosed her with chronic
PTSD related to the incident.
[Ex. J-2 at TAMC 3099-3100, 7016-
120. Marites asked to see a psychologist who was not at
Tripler because Tripler was a source of extreme anxiety.
J-1 at TAMC2 7016-20; Ex. J-3 at TAMC CHRON 200-04.]
121. During her appointment with the psychiatrist, Marites
revealed that M.R.B.C. was a source of her depression and
anxiety; even looking at M.R.B.C. caused her to relive the
122. On March 31, 2014, Dr. Jon Yamaguchi evaluated Marites
for a kidney transplant and opined that she would be an
excellent surgical candidate for kidney transplantation.
recommended that she complete the standard transplant work-up.
[Ex. J-16 at SURG ASSO 1-2.]
123. On April 24, 2014, Dr. Dwight Kellicut created an AV
fistula in Marites’ right arm at Tripler.
[Ex. J-1 at TAMC2
124. On May 14, 2014, Marites was informed that she was
approved for active listing status on the United Network for
Organ Sharing kidney transplant waitlist.
[Ex. J-12 at QMC
125. Prior to M.R.B.C.’s birth, Marites had planned to have
her tubes tied after delivery.
[Ex. J-1 at TAMC2 2532-33,
7325-27; Ex. J-11 at MAKALAPA 929-30; Rafael 12/8 at
126. Due to the incident and medical complications
following delivery, Marites did not undergo a tubal ligation.
[Rafael 12/8 at 163:12-16.]
127. Marites was advised against pregnancy because of her
[Id. at 163:17-23].
128. To prevent pregnancy, Marites had an intrauterine
contraceptive device (“IUD”) inserted.
[Ex. J-1 at TAMC2 7078-
79; Ex. J-11 at MAKALAPA 683.]
129. After experiencing sharp pain in her left lower
abdomen, Marites went to the Pali Momi emergency department in
May 2014, where radiologic studies of her abdomen revealed that
she had a left ovarian cyst.
[Ex. J-1 at TAMC2 7001-02; Ex. J-3
at TAMC CHRON 185-86; Ex. J-11 at MAKALAPA 613-14.]
130. Marites’ gynecologist opined that the cyst could be
secondary to the IUD.
131. On June 10, 2014, Dr. Kellicut cleared Marites’ AV
fistula for use in her hemodialysis.
[Ex. J-11 at MAKALAPA
132. On June 23, 2014, Marites’ hemodialysis catheter was
removed and she was placed on antibiotics.
[Ex. J-1 at TAMC2
133. Marites’ IUD was removed on July 10, 2014, and a
Nexplanon contraceptive was implanted on August 28, 2014.
J-1 at TAMC2 6962-63; Ex. J-2 at TAMC 3409-10; Ex. J-11 at
134. In September 2014, Marites completed medical workups
to prepare for a kidney transplant.
[Ex. J-12 at QMC 45-51.]
135. The ongoing dialysis sessions took a toll on Marites
and her family because she was at the dialysis center three
times a week for four to five hours and would not see her
Paquito usually dropped Marites off at DSI Pearlridge
and Rafael picked her up after he finished his work day.
[Rafael 12/7 at 167:8-9, 167:16-168:2.]
136. Attending dialysis sessions caused Marites distress.
Most of her fellow dialysis patients were older individuals, and
when she learned that some stopped showing up because they had
died, she became concerned that she would meet the same fate.
[Id. at 168:11-169:12; Rafael 12/8 at 173:6-11, 174:2-7.]
137. Marites cried frequently during and after dialysis.
It caused exhaustion, depression, and devastation.
12/12 at 68:25-69:7; Rafael 12/8 at 173:12-17.]
138. Marites had concerns that she would have to undergo
dialysis for the remainder of her life and told Rafael that she
wanted to give up.
[Marites 12/12 at 69:9-14; Rafael 12/8 at
139. Marites described dialysis as a nightmare.
dreaded it that death was preferable to enduring it.
12/12 at 68:4-16.]
140. In an effort to alleviate some of the stress caused by
the dialysis, Rafael and Marites inquired about home
hemodialysis, and Dr. Solomon sent them to training beginning in
[Ex. J-15 at NOKS 4-5.]
141. Home hemodialysis training ordinarily takes a minimum
of one month.
Because Rafael’s supervisors would not grant him
one month’s leave, however, Rafael had to complete the training
in three weeks.
[Rafael 12/8 at 174:8-175:13.]
142. The Campanos started home hemodialysis on December 4,
[Ex. J-12 at QMC 268-71.]
143. Because the home hemodialysis was not as comprehensive
as the dialysis performed at a dialysis center, Marites had to
be dialyzed five days a week instead of three.
144. The home hemodialysis schedule was also taxing for
Rafael because he assisted with the dialysis until 11:00 p.m. or
midnight, after returning home from working a full day, then
woke up at 4:30 a.m. and reported to work.
[Id. at 73:1-13;
Rafael 12/8 at 174:8-177:6.]
145. Not only did the home hemodialysis procedure present
significant challenges for both Rafael and Marites, it was also
[Rafael 12/8 at 175:20-177:6.]
146. The home hemodialysis machine required cleaning and
preparation and the environment needed to be disinfected and
[Marites 12/12 at 70:12-19.]
147. Insofar as the circulating blood volume outside of
Marites’ body contained in the home hemodialysis machine was
about 300 to 400 milliliters at a time, any issue with the
machine or the home dialysis process could be life threating.
[Rafael 12/8 at 176:18-25.]
148. When Marites must go through hemodialysis again, she
and Rafael do not want home hemodialysis because of the
associated risks and challenges.
[Rafael 12/8 at 177:7-24.]
VIII. Third Hospitalization
149. On March 1, 2015, Marites went to the Pali Momi
emergency department with a sore throat, fever, and a
yellowish/white discharge from an infection at her AV fistula
site that had developed during her home hemodialysis sessions.
[Ex. J-1 at TAMC2 6913-16; Ex. J-2 at TAMC 3360-63.]
150. Marites was transferred to Tripler and was admitted to
[Ex. J-1 at TAMC2 6064-68.]
151. Marites was terrified to be at Tripler again.
152. Marites was discharged from Tripler on March 5, 2015.
[Id. at TAMC2 6069-72.]
153. On March 24, 2015, Marites was informed that there was
an available kidney.
[Ex. J-12 at QMC 280-81.]
154. On March 25, 2015, Dr. Makoto Ogihara performed the
[Id. at QMC 676-78.]
155. The donor kidney demonstrated good function and
Marites was monitored inpatient at Queen’s for the next five
days until Dr. Ogihara discharged her on March 30, 2015.
at QMC 490-92.]
156. The transplant, while providing Marites and Rafael
with relief, has created a different set of health concerns and
Marites is required to take immunosuppressant
medications for the life of the transplanted kidney to prevent
[Ex. J-12 at QMC 282-88; Rafael 12/8 at 185:12-
157. The immunosuppressant medications place Marites at
high risk for acquiring and developing infections, malignancies,
and other diseases due to a compromised immune system.
27 (Dr. Keith Klein Report) at 4.]
158. Marites takes her immunosuppressant medication daily
at 7:00 a.m., 9:00 a.m., at lunch, two hours after lunch, at
dinner, and two hours after dinner.
These strict intervals are
necessary to maximize the effectiveness of the medication and
Marites structures her day around this medication schedule.
[Marites 12/12 at 77:8-78:14.]
159. Because of the potential complications from the
transplant, Marites’ constant anxiety has shifted from kidney
failure to contamination and potential infection.
(Dr. Robert Marvit Report) at 2.]
160. Marites’ compromised immunity would preclude her from
returning to work at The Plaza care facility, even if she were
physically capable of performing the job, because of the
exposure to illness and infections.
[Ex. J-27 (Dr. Klein
Report) at 4-5.]
161. Marites now has increased susceptibility to diseases,
including diabetes mellitus, cancer, and bone disease.
162. Marites’ diet is also restricted because of the
potential exposure to germs and infection.
There is a list of
foods she cannot eat, including certain fruits, raw foods,
street food, and leftovers after two hours.
[Marites 12/12 at
163. Because of her susceptibilities, cleanliness is of
utmost concern for Marites and her family, both inside and
outside the home.
Extensive hand washing, use of sanitizers,
and inspection of restaurants for sanitary conditions are among
the steps taken by Marites to maintain her health.
164. Prior to the incident, Marites loved gardening, but is
now restricted so as to avoid contact with soil and fertilizer
and because of physical limitations.
Currently, gardening for
Marites primarily entails directing others.
[Id. at 80:6-81:9.]
165. Due to the elevated risk of skin cancer from the
immunosuppressant medication, Marites must avoid sun exposure
and she uses sunscreen and protective clothing when outside.
[Id. at 81:23-82:10.]
166. Although it causes her embarrassment, Marites is
required to wear a face mask in crowded public areas like movie
theaters, grocery stores, and airplanes.
[Id. at 81:10-22.]
167. The Campanos had five dogs before the incident, but
gave them up at the advice of a doctor because of the risk of
infection to Marites.
[Id. at 84:12-14; R.B.B.C. 12/7 at
168. On August 1, 2015, Marites went to Queen’s emergency
department with pain in her lower abdomen.
[Ex. J-12 at QMC
169. Marites was subsequently admitted.
[Id. at QMC 1855.]
170. On August 2, 2015, Dr. Donn Tokairin performed the
following procedures on Marites:
exploratory laparotomy, excision of ovarian cyst, drainage of
left tubo-ovarian abscess, and lysis of adhesions.
[Id. at QMC
171. Marites remained at Queen’s until her discharge on
August 6, 2015.
[Id. at QMC 1818-21.]
172. On August 9, 2015, Marites returned to Queen’s with
increasing abdominal pain and a fever and was admitted.
173. Marites had a urinary tract infection that led to
sepsis, as well as a painful genital rash.
[Id. at QMC 2829-35,
174. Marites was discharged on August 12, 2015.
175. In October 2015, Marites’ AV fistula developed an
aneurysmal dilation or pseudoaneurysm and swelled larger than a
This caused pain and limitations with her right arm,
as well as intermittent tingling.
[Ex. J-1 at TAMC2 7765-71;
Exs. P-129-30 (photos of AV fistula aneurysm).]
176. Marites consulted with Dr. Kellicut, who, after
assessing the situation, deferred to Dr. Ogihara as to how to
address the aneurysm.
[Ex. J-1 at TAMC2 7726, 7765-71; Rafael
12/8 at 181:4-13.]
177. Dr. Ogihara removed the fistula.
[Rafael 12/8 at
XII. Current Medical Status
178. Following the Campanos’ move to San Diego, Marites was
diagnosed with elevated ferritin levels linked to her multiple
blood transfusions from her previous incident-related procedures
[Ex. P-117 at NMC San Diego-A.000670-73.]
179. Marites is currently seeing a hematologist in San
Diego who has recommended successive blood draw procedures
(similar to donating blood) to reduce the circulating ferritinrich blood volume and to induce the body to produce its own
blood to replace the withdrawn ferritin-rich blood.
12/8 at 182:4-184:20.]
180. Marites has been experiencing difficulty with the
blood draw procedures because her veins are scarred from all of
her previous incident-related procedures, and her care providers
in San Diego are unable to draw the requisite blood volume.
[Id. at 183:19-184:7.]
Marites’ Future Prognosis and Care Needs
A. End-Stage Renal Disease
181. As a result of Defendant’s negligence, Marites has and
will in the future suffer the injuries, complications, and
damages associated with kidney transplants and hemodialysis.
[Ex. J-32 (Dr. Klein Treatment Plan) at 2-3; Dr. Klein 12/5 at
182. When her transplant fails, Marites will be required,
as before, to undergo hemodialysis three times per week until
she has another kidney transplant.
[Dr. Klein 12/5 at 26:19-
183. The risks and complications of hemodialysis are
permanent for Marites and will be magnified or worsened in the
future because of her advanced age and because dialysis has a
cumulative effect - bone disease will be more progressive,
dialysis fatigue will be greater, there will be greater risk of
infection, and access sites can become clotted and unusable.
[Dr. Klein 12/5 at 44:20-45:24; Dr. Friedman 12/11 at 63:2264:12.]
184. Due to her ESRD, Marites has suffered or will suffer
various complications - cardiovascular, orthopedic, respiratory,
integumentary, urinary, immune system, gastrointestinal,
general, cancer/malignancies, and psychological.
9; Ex. J-32 (Dr. Klein Treatment Plan) at 6.]
[Id. at 27:1-
185. The most common cause of death in both dialysis and
transplant patients with ESRD is cardiovascular complications.
[Dr. Klein 12/5 at 27:12-13.]
186. Dialysis and kidney transplant patients are more
susceptible to ulcers, and medications for kidney disease can
[Id. at 32:10-12; Dr. Ching 12/11 at 116:2–
187. Dr. Ching testified that he expects Marites’
gastrointestinal symptoms to continue and that she will likely
require lifetime medications to assist with controlling those
[Dr. Ching 12/11 at 133:23-134:7.]
188. Transplant patients often have increased acid,
popularly known as gastroesophageal reflux disease (“GERD”), and
often have to avoid certain types of uncooked foods because of
[Dr. Klein 12/5 at 32:14-18.]
189. At the time Marites was examined by Dr. Ching, she was
actively suffering from GERD and taking medication to address
[Dr. Ching 12/11 at 119:15-120:14.]
190. Dialysis patients have stricter dietary limitations
than transplant patients and need to watch their intake of
fluids, salt, protein, potassium and phosphorous.
12/11 at 141:16-142:11; Dr. Klein 12/5 at 32:22-25.]
191. Dialysis patients are also required to take multiple
medications to handle complications resulting from their kidney
[Dr. Klein 12/5 at 39:21-23; Dr. Ching 12/11 at
192. The parties’ experts all agree that Marites will live
a near-normal life expectancy to at least 75 years old.
Klein 12/5 at 72:17-25; Dr. Friedman 12/11 at 40:12-15; Dr.
Loudat 12/7 at 33:6-34:10; Ex. J-50 (AsherMeyers Report) at 3.]
193. Marites’ current kidney will not function for her
remaining life expectancy.
[Dr. Klein 12/5 at 45:25-46:7.]
Life Care Planning
194. The Court finds, based on the testimony at trial and
the evidence before it, that, except as detailed below, Karen
Klemme’s life care plan (“Klemme plan”) reasonably provides for
Marites’ future medical and other needs.
Current Kidney and Future Transplants
195. Although Dr. Keith Klein originally opined that
Marites’ kidney would last for five to ten years, based on
medical evidence available to him at trial, he opined that her
kidney will last for approximately five years.
[Dr. Klein 12/5
196. Dr. Stuart Friedman testified that Marites’ kidney
will be viable for at least 14 years.
[Dr. Friedman 12/11 at
197. The estimations contained in Dr. Ching’s report were
based on a ten-year graft survival rate.
[Dr. Ching 12/11 at
198. The Court finds that the evidence, taken together,
supports a conclusion that Marites’ kidney will likely last a
total of ten years.3
Transplant Waiting Time
199. Although the parties agree that the waiting time on
the transplant list is five to seven years, given Marites’
history and circumstances, the probable waiting time for a
transplant will be seven years, during which Marites will
[Dr. Friedman 12/11 at 28:3-15; Dr. Klein
12/5 at 67:20-68:6.]
200. As clarified at trial, Marites’ life care plan relies
on transplant surgery in Honolulu, Hawaii, at Queen’s, with
costs based directly upon the medical bills for Marites’ actual
transplant in Hawaii.
[Grisham 12/5 at 162:23-163:2; Grisham
12/6 at 48:16-49:2.]
201. In calculating Marites’ lifetime hemodialysis costs,
Ms. Klemme utilized the medical bills from DSI Pearlridge, where
The transplant having occurred on March 25, 2015, Marites’
kidney will be viable until approximately 2025.
Marites received hemodialysis from October 2013 to March 2015.
[Ex. J-29 (Karen Klemme Report) at 68-69.]
202. Marites’ actual hemodialysis costs totaled
$1,524,376.24, with an average monthly cost of dialysis of
$83,187.25 ($998,247 per year).
203. Susan Riddick-Grisham testified that in preparing a
life care plan, it is customary and accepted methodology to use
past medical bills and billed charges to determine the cost to
be used in the life care plan for future services and items.
[Grisham 12/5 at 159:5-18; 167:14-20.]
204. The future hemodialysis monthly average cost of
$67,239.00 was based upon the most current, consistent, and
conservative charges for the billed dialysis amounts.
12/6 at 45:2-7.]
205. The Court finds projected costs based on actual billed
amounts to be more accurate and persuasive than “private pay”
costs and national statistical data.
Private pay costs are not
acceptable methodology in life care planning and the statistical
data relied upon by John Fountaine and Dr. Ching is based on
Medicare costs, which cannot be used to support future costs in
a life care plan.
206. Defendant relies on Bynum v. Magno, 106 Hawai`i 81,
101 P.3d 1149 (2004), for the proposition that standard rates –
in this case $500.00/dialysis session – are determinative of the
reasonable value of future hemodialysis costs.
reliance is misplaced.
Bynum addressed two certified questions:
Where a plaintiff’s healthcare expenses are paid
by Medicare and/or Medical, does the discounted
amount paid to a healthcare provider by
[Medicare] and Medi-Cal constitute the amount
that should be awarded as medical special damages
to a plaintiff in a negligence action? In this
circumstance, is evidence of amounts billed in
excess of the amount paid irrelevant and
Id. at 82, 101 P.3d at 1150 (alterations in original).
Hawaii Supreme Court held that “a plaintiff, injured by the
tortious conduct of a defendant, is entitled to recover the
reasonable value of medical services and is not limited to the
expenditures actually paid by Medicaid/Medicare.”
101 P.3d at 1160 (emphasis added).
Id. at 92,
Thus, because “the
collateral source rule prohibits reducing a plaintiff’s award of
medical special damages to reflect the discounted amount paid by
Medicare/Medicaid,” evidence of amounts billed in excess of the
amounts paid is neither irrelevant nor inadmissible.
101 P.3d at 1162.
Id. at 94,
Not only is Bynum distinguishable, it cuts
against Defendant’s contention that private pay rates must
govern in estimating Marites’ future hemodialysis needs.
issue in this case is not whether private pay costs are
admissible, but whether they, or actual billed amounts, more
appropriately address Marites’ future hemodialysis costs.
Bynum, standard rates are an acceptable measure for damages
because they do not limit a plaintiff’s recovery to lesser
Here, Marites’ actual bills reflect costs far
in excess of private pay rates, the use of which are not
standard in life care planning.
The Court finds unpersuasive
any suggestion that actual bills should be disregarded in favor
of private pay estimates.
207. Although Defendant challenges the reasonableness of
the future hemodialysis costs, Medicare and Tricare paid
Marites’ DSI Pearlridge bills.
[Ex. J-92A (Tricare Claims
Information by Date of Service for Marites B. Campano).]
208. The Court accordingly finds that Ms. Klemme’s
provisions for $67,239.00 in monthly dialysis costs for Marites’
future care are reasonable, necessary, and appropriate.
Klemme plan is more suitable than Mr. Fountaine’s life care plan
(“Fountaine plan”) with respect to dialysis costs.
209. The Court further finds that the provisions in the
Klemme plan for round-trip transportation to and from dialysis
sessions, including the costs related thereto, are reasonable,
necessary, and appropriately address Marites’ future care needs.
210. Drs. Klein and Friedman agreed that dialysis patients
are seen weekly by their nephrologist.
19; Dr. Friedman 12/11 at 62:11-16.]
[Dr. Klein 12/5 at 7:13-
211. The Court finds that monthly nephrology monitoring is
the most appropriate frequency of nephrology care for Marites
during the viability of any transplanted kidney(s), when she is
not on dialysis.
Her multi-organ injuries and medical course
stemming from the incident support more frequent nephrology
evaluation and laboratory testing than Dr. Friedman’s
recommendation that she be evaluated every three months.
Court finds Dr. Klein’s testimony and opinions regarding
nephrology monitoring more credible than the testimony and
opinions of Dr. Friedman.
212. Accordingly, the Court finds that monthly nephrology
evaluation and monthly laboratory testing provided for in the
Klemme plan are reasonable and necessary, and more aptly address
Marites’ future care needs than the Fountaine plan.
213. Marites does not have a functional AV fistula.
she resumes dialysis, she will require one.
A functioning AV
fistula should be evaluated by a vascular surgeon every three to
four months as preventive treatment.
[Dr. Klein 12/5 at 85:6-
214. The Klemme plan provides for yearly evaluation by a
transplant surgeon when Marites is on the kidney transplant
Dr. Klein testified that the yearly evaluation is
standard so that in the event a kidney transplant becomes
available, the surgeon is not surprised by any condition making
her an anesthetic or surgical risk.
[Dr. Klein 12/5 at 77:16-
215. Dr. Friedman testified that he disagreed with the
annual consultation with a transplant
surgeon, cardiology consultations four times a year,
endocrinology consultations four times a year, and neurology
consultations twice a year.
However, he offered no explanation
or basis for his disagreement.
[Dr. Friedman 12/11 at 66:10-
216. Dr. Ching noted, in his report, that Marites had
current mild cardiac dysfunction and valvular disease, probably
from pre-existing rheumatic heart disease with possible
contributing factors with her toxic shock episode.
(Dr. Ching Report) at 7.]
217. Dr. Klein’s recommendation for quarterly cardiology
consultations were directly related to the incident and Marites’
[Dr. Klein 12/5 at 78:5-17.]
218. Dr. Klein testified that his recommendations for
pulmonology, neurology, and endocrinology consultations were
based on the sequelae arising from the incident.
[Id. at 78:18-
Marites suffered hepatic encephalopathy at Tripler, as
well as pituitary issues.
[Id. at 12:13-15:5, 19:18-20:17.]
She has also developed skin lesions as a result of the
transplant, which should be monitored by a dermatologist at
least twice a year.
[Id. at 30:1-10, 79:20-80:2.]
219. Insofar as the Court finds the testimony and opinions
of Dr. Klein regarding consultations to be more credible than
the testimony and opinions of Drs. Friedman and Ching, the
consultations set forth in the Klemme plan, and frequency and
costs related thereto, are reasonable, necessary, and
appropriate with respect to Marites’ future care.
220. Dr. Klein recommended annual chest x-rays, while the
Fountaine plan provided for chest x-rays every three years.
[Ex. J-29 (Klemme Report) at 61; Ex. J-48 (John Fountaine
Report) at 6.]
Dr. Klein explained that annual chest x-ray
screening is necessary to look for certain potential
complications, and such complications would occur more
frequently in transplant or dialysis patients.
[Dr. Klein 12/5
221. The Klemme and Fountaine plans agreed upon annual EKG,
annual echocardiograms and biannual bone dexascans.
(Klemme Report) at 61; Ex. J-48 (Fountaine Report) at 6.]
222. Dr. Klein recommended semi-annual dental exams and
prophylactic antibiotics for dental work.
recommended gynecological exams every three years and mammograms
every three years to age 50, and annually after age 50.
Klein 12/5 at 80:18-81:14.]
223. The parties agree that Marites requires kidney
biopsies and renal ultrasounds.
Dr. Klein recommends two
biopsies and two ultrasounds per transplant, while the Fountaine
plan includes two biopsies and two ultrasounds in a lifetime.
[Ex. J-48 (Fountaine Report) at 9; Dr. Klein 12/5 at 82:1-6.]
224. Dr. Klein testified that kidney biopsies are used to
evaluate potential kidney rejection.
A second biopsy follows
the first to evaluate the response to treatment.
that a renal ultrasound is always part of the kidney biopsy
[Dr. Klein 12/5 at 82:1-22.]
225. The Court finds Dr. Klein’s testimony and opinions
regarding diagnostic testing to be more credible than the
testimony and opinions of Dr. Friedman.
As such, the Court
finds that the diagnostic testing set forth in the Klemme plan,
and the frequency and costs related thereto, are reasonable,
necessary, and appropriate for Marites’ future care.
Future ER Visits and Hospitalizations
226. The Klemme plan provides for four annual emergency
room visits and three to four annual hospitalizations, with each
hospitalization lasting seven to ten days.
[Ex. J-29 (Klemme
Report) at 61; Dr. Klein 12/5 at 82:23-83:1.]
Loudat’s calculations are based on 29.8 days of hospitalization.
[Exs. P-114 (Dr. Loudat Updated Report); P-116 (Dr. Loudat
Alternative Scenarios Report (13-24); P-122 (Dr. Loudat
Alternative Scenarios Report (25-27)); P-136 (Dr. Loudat Amended
Additional LCP Scenarios 1-12).]
The Fountaine plan originally
provided for one annual emergency room visit and ten to 12
lifetime hospitalizations, with each hospital stay lasting five
to seven days.
[Ex. J-48 (Fountaine Report) at 7.]
227. That Marites has not recently been to the emergency
room or hospitalized has no bearing on future visits or
hospitalizations, according to Dr. Klein.
[Dr. Klein 12/5 at
The number of ER visits and hospitalizations proposed
by Dr. Klein, and relied upon by Ms. Klemme, were based on
Marites’ five ER visits in a 16-month period after her
transplant and the complications associated with transplant and
dialysis patients, regardless of the condition that precipitated
228. In its 2015 Annual Report, dialysis provider Fresenius
included data showing that its dialysis patients required rehospitalizations at a rate of 10 days per quarter, equaling four
annual hospitalizations and 40 hospital days per year.
12/6 at 5:8-6:2.]
229. Defendant agrees that Marites will require future ER
visits and hospitalizations due to the complications associated
The number of annual hospital days proposed by
Defendant is eight, which is a blended number of hospital days
for dialysis and transplant patients.
[Dr. Friedman 12/11 at
23:11-24:5; Dr. Ching 12/11 at 94:12-95:6.]
230. In light of Marites’ complicated and serious medical
history, the Court finds that Defendant’s projections for ER
visits and hospitalizations understate her future needs.
231. The Court finds that in the context of Marites’ past
medical course, the problems and complications identified by Dr.
Klein, and considering his professional knowledge and
experience, Dr. Klein’s testimony and opinions regarding future
ER visits and hospitalizations are more credible than the
testimony and opinions of Drs. Friedman and Ching.
the Court finds that the projected number of days of
hospitalization is excessive and should be reduced by one-half.
232. For these reasons, the Court finds that four ER visits
and 14.9 days of hospitalization per year are reasonable,
necessary, and appropriate for Marites’ future care needs.
233. The treatment plan and testimony of psychiatrist Dr.
Danilo Ponce provide the foundation for future psychiatric
counseling and medication in the Klemme plan.
[Ex. J-29 (Klemme
Report) at 71-78; Ex. J-33 (Dr. Ponce Treatment Plan).]
234. Dr. Ponce testified that Marites’ PTSD, anxiety and
depression, along with the physical manifestation of those
disorders, will be lifelong and permanent.
[Dr. Ponce 12/6 at
Dr. Ponce recommended weekly psychiatric treatments
in the first year of treatment, bi-monthly treatments in the
second year of treatment, and monthly treatments starting in
year three, for life.
[Ex. J-33 (Dr. Ponce Treatment Plan) at
8-9; Dr. Ponce 12/6 at 72:7-23.]
235. While the Fountaine plan does not include psychiatric
treatment, Drs. Ching and Eric Smith indicated that Marites
requires psychiatric care and medication.
[Ex. 47 (Dr. Ching
Report) at 7-8; Dr. Ching 12/11 at 138:14-139:6; Dr. Smith 12/8
Dr. Smith agreed that a more intensive period
of therapy is required for Marites at the outset due to her
distrust of the medical profession and cultural/ethnic
[Dr. Smith 12/8 at 36:20-37:9.]
Dr. Smith also
testified that the failure of Marites’ kidney transplant and
return to hemodialysis would cause a recurrence and
magnification of Marites’ PTSD symptomatology, as well as
adjustment disorder or some other psychological impairment.
[Id. at 45:6-18.]
236. The Court finds that the credible evidence establishes
that Marites continues to suffer symptoms of PTSD, anxiety and
The evidence further supports a finding that these
symptoms will continue for Marites’ lifetime and will be
exacerbated each time she resumes hemodialysis.
237. The Klemme and Fountaine plans agree on Marites’
future medication needs except for the monthly quantity of
Lunesta sleep medication.
Given the need for sleeping
medications identified by the Defendant’s own witnesses; the
extent to which Marites is still suffering depression, anxiety,
and stress; and the agreement by Drs. Ching and Smith that
Marites’ symptoms will increase when she resumes dialysis, the
Court finds that all the medications set forth in the Klemme
plan, and the related frequency and cost, are reasonable,
necessary, and appropriate for Marites’ future care needs.
238. The Court therefore accepts the Klemme plan’s
provisions for psychiatric treatment and medications.
Home Care Needs
239. Both the Klemme and Fountaine plans provide for home
care assistance following transplant surgery, during dialysis
and at the end of life.
[Ex. J-29 (Klemme Report) at 79-85; J-
48 (Fountaine Report) at 13.]
The Klemme plan provides for both
home health aide and chore worker assistance following
transplant surgery and during dialysis, with exclusive home
health aide assistance at the end of life.
240. Health aides assist with daily activities such as
bathing, dressing, and grooming, but are not allowed to do tasks
for the household or other members of the household.
contrast, chore workers assist with household tasks, which
include aiding family members and performing tasks that would
otherwise have been undertaken by Marites.
[Grisham 12/5 at
241. Dr. Klein cited multiple reasons for recommending help
totaling three hours/day for three months following transplant:
Marites will lack the energy to engage in the activities of
daily living, such as shopping or taking care of her family;
immunosuppression issues will preclude her from caring for sick
family members; and her baseline is lower than 99 percent of
those who get transplants because of her past medical
[Dr. Klein 12/5 at 85:21-87:1.]
242. Both the Klemme and Fountaine plans provide for
assistance during dialysis, but the Klemme plan includes a home
health aide in addition to a chore worker and recommends greater
assistance – six hours/day, three times/week versus 12
Dr. Klein testified that 18 hours a week of home
care assistance is more appropriate than the 12 hours a week set
forth in the Fountaine plan.
[Dr. Klein 12/5 at 87:2-14.]
243. During hemodialysis, Marites experienced significant
Her daily function was limited and she relied heavily
on Rafael and her family.
[Ex. J-29 (Klemme Report) at 35, 37-
244. Dr. Friedman had no disagreement with the home care
needs set forth in the Klemme plan.
[Dr. Friedman 12/11 at
245. Dr. Ching testified that on dialysis days, dialysis
patients have difficulty performing the activities of daily
living and require assistance.
[Dr. Ching 12/11 at 141:5-10.]
Dr. Ching suggested that family support would be desirable.
[Id. at 141:11-13.]
However, factoring in family assistance
does not return Plaintiffs to pre-injury status.
246. The Klemme plan provides for a health aide 24/7 for
Dr. Ching disagreed with the need for
overnight care and care during dialysis sessions and recommended
three to six hours of daily care for the last three years of
[Ex. J-47 (Dr. Ching Report) at 9; Dr. Ching
12/11 at 98:11-18.]
To support his position, Dr. Ching noted
that his patients at St. Francis Medical Center did not have
that level of support available to them.
[Dr. Ching 12/11 at
247. Dr. Friedman did not disagree with the provision of
24/7 end-of-life care.
[Dr. Friedman 12/11 at 66:10-22.]
248. Dr. Klein testified that overnight health aide care is
required because Marites could experience respiratory problems,
she may need to use the bathroom, and she could become agitated.
Dr. Klein equated the 24/7 care to placing Marites in a nursing
home with 24-hour care.
[Id. at 87:15-88:5.]
249. With respect to assistance during dialysis, Dr. Klein
testified that at the dialysis clinic, a health aide would be
helpful if the patient needs assistance with mobility or getting
dressed, though an aide is not needed during the dialysis
Dialysis nurses are not supposed to give custodial
In Dr. Klein’s experience, many dialysis patients are
accompanied by attendants.
[Dr. Klein 12/5 at 126:21-127:21.]
250. Ms. Riddick-Grisham testified that 24/7 end-of-life
care is appropriate for Marites because she is at risk for
significant other complications.
She already has existing
medical conditions such as osteopenia and high cholesterol that
will wear on her and will require additional assistance.
[Grisham 12/5 at 165:18-166:6].
251. The Court finds that home care needs following
transplant surgery, during dialysis, and at the end of life on
dialysis, are nephrology-related future treatment needs.
Court further finds that Marites’ family should not be required
to provide services to her for care directly resulting from her
252. The Court finds that the testimony and opinions of Dr.
Klein and Ms. Riddick-Grisham are more credible regarding future
home care services than the testimony and opinions of Drs. Ching
and Friedman, and Mr. Fountaine.
253. As such, the Court deems the home care needs outlined
in the Klemme plan to be reasonable, necessary, and appropriate
for Marites’ future care, and better address her needs than the
254. Marites will require the following home medical
equipment during dialysis and the post-transplant period,
replaced throughout her lifetime, to assist with mobility and
shower chair, grab bars, non-skid bath mat,
shower hose, home blood pressure machine, thermometer, walker,
cane, and a scooter at age 50.
[Dr. Klein 12/5 at 88:6-22; Ex.
J-32 (Dr. Klein Treatment Plan) at 10; Ex. J-29 (Klemme Report)
255. Neither Dr. Friedman nor Dr. Ching disagreed with
equipment needs or offered suggestions to the contrary.
Friedman 12/11 at 66:10-22; Ex. J-47 (Dr. Ching Report).]
256. Therefore, the Court finds that the provisions set
forth in the Klemme plan for equipment are reasonable,
necessary, and appropriate for Marites’ future care.
XIV. Noneconomic Damages
257. The multiple procedures that Marites endured have
resulted in permanent scars and hyperpigmentation that cause her
humiliation and embarrassment.
[Ex. J-29 (Klemme Report) at 43-
258. Marites has several scars of varying sizes on her
abdomen, upper chest, and arm from the multiple incident-related
surgeries and procedures, all of which bother her and have
decreased her self-esteem.
[Exs. P-129-135; Dr. Ching 12/11 at
Marites’ Mental Anguish and Emotional Distress
259. During the incident, Marites and her family and
friends believed that she would not survive.
[Paquito 12/7 at
260. Marites was convinced she was going to die, and wanted
to return home to avoid dying in the hospital.
[Rafael 12/7 at
261. During her first hospitalization at Tripler, Marites
began showing signs of an aversion toward M.R.B.C, making
excuses to keep her away.
[Marites 12/12 at 59:9-60:3.]
262. Marites’ aversion toward M.R.B.C. became more
pronounced once she returned home after her first discharge from
When Marites arrived at home and family members
brought M.R.B.C. to the car to greet her, Marites became
agitated and was unhappy to see M.R.B.C.
In the days that
followed, M.R.B.C. was a source of anxiety and Marites did not
wish to see her.
[Id. at 60:4-15; Rafael 12/7 at 164:21-
263. The incident so traumatized Marites that she hated
M.R.B.C., and in fact preferred to die than see M.R.B.C.,
because she blamed M.R.B.C. for the events that transpired.
[Rafael 12/7 at 164:21-165:13; Marites 12/12 at 69:15-70:8;
Paquito 12/7 at 80:22-81:24.]
264. Due to the injuries she suffered as a result of the
incident, Marites was unable to breastfeed and bond with
[Marites 12/12 at 56:21-57:07; 57:19-58:13.]
265. After the incident, Marites is distrustful of medical
providers and has anxiety about medical facilities and
[Id. at 60:20-62:22; 85:19-86:19; Dr. Ching 12/11 at
266. Marites is also sensitive to stimuli that remind her
of her hospitalization, like ambulance sirens, flashing lights,
medical device alarms, school bells, and ringing phones.
[Marites 12/12 at 62:12-22; 85:12-18.]
267. Marites experiences panic attacks and anxiety when she
is exposed to stimuli that remind her of her hospitalizations.
[Marites 12/12 at 62:12-22; Dr. Ching 12/11 at 117:21- 118:2.]
268. During her panic attacks, Marites experiences
shortness of breath and inability to focus.
to her room, drinks water, and prays.
To cope, she goes
[Marites 12/12 at 63:7-
269. Marites also has nightmares about her
[Id. at 62:12-22.]
270. Marites’ incident-caused injuries have also affected
her physical appearance, her confidence, and her self-esteem.
[Id. at 65:13-67:9; Dr. Ching 12/11 at 118:20-25.]
271. This lack of confidence and diminished self-esteem
cause Marites to avoid people and isolate herself, in part
because she believes that people are talking behind her back
about how much of a burden she is to her family.
272. Marites was traumatized by hemodialysis and dreads
having to return to hemodialysis in the future.
[Id. at 68:1-
20; 68:25-69:14; 73:21-74:17.]
273. Marites is unable to control her emotions, is more
irritable, has mood swings, and has daily headaches since the
[Id. at 86:20-87:21.]
274. These resultant emotional changes have affected her
relationship with R.M.B.C. and R.B.B.C., especially R.M.B.C.,
because she angers easily and often argues with them.
275. Marites currently spends most of her days lying in her
room and does not want to see anyone.
[Id. at 87:22-88:14.]
276. Since her kidney transplant, Marites sleeps for a
total of five to six hours a night, but she wakes up every hour
to two hours to use the bathroom.
[Id. at 88:15-89:1.]
277. Since her kidney transplant, Marites goes to the
bathroom every 45 to 60 minutes during the day to avoid urinary
[Id. at 89:2-21.]
278. Marites regrets blaming M.R.B.C. for the incident and
subsequent hospitalization, particularly because she and Rafael
had prayed for a baby girl for so long.
[Id. at 90:1-5.]
279. Marites feels that the incident deprived her of early
bonding with and nurturing of M.R.B.C.
[Id. at 90:6-9.]
280. Marites believes that she is a burden to her family
and carries guilt as a result.
[Id. at 90:13-22; Dr. Ching
12/11 at 142:23-143:14.]
281. Marites enjoyed working and intended to return to work
after M.R.B.C.’s birth.
[Dr. Ching 12/11 at 132:14-22; Marites
12/12 at 43:2-14.]
282. Marites feels guilty because she is unable to work or
provide financially for her immediate family after the incident.
[Marites 12/12 at 44:25-45:10.]
283. M.R.B.C. wants to attend school and take piano and
It troubles and saddens Marites to inform M.R.B.C. that
the family cannot afford it because she is ill and unable to
[Id. at 45:11-47:1.]
284. Prior to the incident, Marites regularly sent
financial assistance to her nieces and nephews in the
Philippines to help to pay for their education.
[Id. at 43:25-
285. Since the incident, Marites discontinued financial
support of her relatives in the Philippines and she feels badly
about her inability to assist.
286. Since the incident, Marites is no longer a happy
[Id. at 90:10-12).
287. Marites is most concerned about who will care for her
when her kidney fails again.
[Id. at 91:1-8.]
288. Marites is also concerned about whether Rafael will
take care of her for the remainder of her life.
[Id. at 91:10-
289. Marites wishes that she could take care of her
children, especially M.R.B.C.
[Id. at 91:17-18.]
290. Dr. Ching testified that Marites will have a decreased
ability to care for her sick children when they have mild
illness, which is of particular concern with a young daughter.
[Dr. Ching 12/11 at 142:12-17.]
Psychiatric Evaluation by Dr. Robert C. Marvit
291. On June 1, 2016, Dr. Robert Marvit evaluated Marites
[Ex. J-35 (Dr. Marvit Report Marites) at 1; Ex. J-
36, (Dr. Marvit Report Rafael) at 1.]
292. Dr. Marvit opined that Marites’ August 8, 2013
electroencephalogram “was abnormally suggestive of a diffuse and
anoxic/hypoxic injury to the cerebral cortex.”
Marvit Report Marites) at 6.]
In other words, Marites suffered
an organic injury to the brain as a result of the septic shock
she experienced at Tripler.
[Dr. Marvit 12/6 at 129:21-132:4.]
293. Drs. Marvit and Ching opined that Marites also
suffered from hepatic encephalopathy as a consequence of her
sepsis at Tripler.
[Dr. Marvit 12/6 at 132:20-134:4; Dr. Ching
12/11 at 104:7-105:2.]
294. Manifestations of hepatic encephalopathy include
confusion, decreased level of consciousness, decreased ability
to have a normal thought process, decreased ability to remember,
and decreased ability to calculate.
[Dr. Ching 12/11 at 104:18-
295. Marites’ cognitive impairments, abnormal behavior, and
altered mental status during her first hospitalization are
attributable to the diffuse anoxic/hypoxic injury and the
hepatic encephalopathy caused by her sepsis at Tripler.
Marvit 12/6 at 132:9-25; 133:13-134:4; 157:8-158:8; 158:17-18.]
296. When Dr. Ching examined Marites on October 6, 2016,
she exhibited some memory loss and was slow on her calculations.
[Dr. Ching 12/11 at 105:3-13.]
297. Dr. Ching admitted that he was not provided with any
medical records or any medical history suggesting that Marites’
clinical symptoms of cognitive impairment were related to any
type of preexisting condition.
[Id. at 106:4-8, 128:1-129:16.]
298. As a result of the diffuse anoxic/hypoxic injury and
the hepatic encephalopathy caused by Marites’ sepsis at Tripler,
she is at a greater risk for premature decay of brain function,
early onset of cortical delay and regressive cognitive
functioning as she ages than those who have not had such brain
[Dr. Marvit 12/6 at 132:14-134:10; 158:12-14.]
Psychiatric Evaluation and Treatment with Dr.
299. Dr. Ponce evaluated Marites on July 30 and 31, 2016.
[Ex. J-37 (Dr. Ponce Report) at 2.]
300. Marites went to see Dr. Ponce in part because was able
to communicate with him in Ilocano.
[Id. at 2; Rafael 12/8 at
301. Marites had previously seen two mental health
professionals, one at Tripler and one in private practice in
Mililani, but did not feel comfortable with them and did not
return for further sessions.
[Rafael 12/8 at 167:3-169:9.]
302. Marites continued treatment with Dr. Ponce until she
moved to San Diego.
[Ex. J-37 (Dr. Ponce Report) at 10; Ex. J-
91 (Dr. Ponce records).]
303. As earlier noted, Dr. Ponce diagnosed Marites with
symptomatic PTSD, anxiety, and depression.
weekly psychiatric treatments in the first year of treatment,
bi-monthly treatments in the second year of treatment, and
monthly treatments starting in year three, for life.
(Dr. Ponce Treatment Plan) at 8-9; Dr. Ponce 12/6 at 72:7-23.]
304. Dr. Ponce noted that Marites had passive suicidal
ideations but no active plans - active meaning a decision to
kill oneself with an active plan and method, and passive meaning
a wish to die in order to terminate something that is painful or
that the patient is unable to endure or continue.
12/6 at 62:24-63:10.]
305. Dr. Ponce explained that Marites’ passive suicidal
ideations were the result of medical, social and psychological
factors such as the uncertainty regarding the functional life of
her kidney transplant, the social impacts on Rafael and her
family, her role as a wife and mother, and feelings of
uselessness and worthlessness compounded by internecine
conflicts with family members.
[Dr. Ponce 12/6 at 62:24-64:12.]
306. Dr. Ponce expects Marites’ psychiatric disorders
(PTSD, anxiety, depression) to be permanent because they are
related to her physical and medical conditions, which are
[Id. at 67:18-68:24.]
307. Dr. Ching agreed that Marites will require lifelong
psychiatric treatment with increasing frequency when she returns
to dialysis, and medications for depression, anxiety, and
[Dr. Ching 12/11 at 138:14-139:6.]
Psychological Evaluation by Dr. Smith
308. The Court has already determined that psychiatric
treatment for Marites is necessary and appropriate.
to the extent Dr. Smith’s report opines that such treatment is
unnecessary, the Court finds those opinions to be non-credible,
particularly in view of Dr. Smith’s shift in position at trial.
The Effect on the Family
309. At the time of the incident, Rafael was in the Navy’s
Medical Enlisted Commissioning Program (“MECP”) and was
attending school to complete his nursing degree.
310. The demands of staying with Marites during her
hospitalizations and caring for her in the aftermath caused
Rafael to struggle in school.
He was forced to complete
assignments at the hospital and even used Tripler computers to
He missed some labs but took final exams, passed his
classes, and despite the many challenges, graduated on schedule
in December 2013.
[Id. at 169:13-171:3; Paquito 12/7 at 76:6-
311. Rafael was given the option to extend his nursing
education but he wanted to finish to better provide for his
He feared that with all that was happening, he would be
expelled from the MECP program and returned to his enlisted
[Rafael 12/7 at 171:2-19.]
312. Rafael remained at Marites’ bedside during all of her
hospitalizations, leaving for only brief periods to attend his
exams at school and to visit his children.
[Paquito 12/7 at
71:18-25; Rafael 12/8 at 170:16-18.]
313. Rafael struggled emotionally with the prospect that he
was going to lose his wife, and that his children would not have
However, he tried to conceal his emotions to protect
[Paquito 12/7 at 80:1-21, 81:20-82:21; Rafael
12/7 at 163:17-164:3.]
314. Caring for Marites after her first two
hospitalizations in 2013 was especially difficult because she
was confined to the bed and/or a wheelchair, and the Campanos’
townhouse in Mililani had two stories, with the bedrooms all
[Rafael 12/7 at 165:17-166:1.]
315. Rafael would carry Marites up and down the stairs in
order to relocate her; he would carry her downstairs before he
left for work in the morning, where she would remain until he
returned at night and carried her back upstairs again.
316. Rafael also attended to all of Marites’ needs
following her hospitalizations, including bathing her on the
couch, for over a year.
[Id. at 166:8-16.]
Marites to get up and sit properly.
He also helped
[Marites 12/12 at 64:10-
317. In addition to her home care, Marites required
transport to and from dialysis three times a week.
Paquito would regularly share the transportation duties Paquito dropped Marites off at the clinic in the afternoon and
Rafael went to the clinic after work to spend time with her then
take her home.
[Rafael 12/7 at 167:16-168:2; Paquito 12/7 at
318. The Campanos also relied heavily on their large family
for support while Marites was incapacitated.
traveled from Australia, Canada, and California at different
intervals to assist the family.
[Rafael 12/7 at 138:22-139:10;
Paquito 12/7 at 74:5-75:13.]
319. The Campanos have the most family support in Hawaii.
[Rafael 12/7 at 145:10-13.]
320. Rafael was heartbroken when Marites blamed M.R.B.C.
for what happened to her at Tripler.
[Id. at 164:17 -165:13.]
321. Because Marites was in the hospital for essentially
over two months while Rafael kept vigil at her bedside, followed
by outpatient dialysis and several hospitalizations, neither
Rafael nor Marites was present to raise M.R.B.C. during the
first months of her life.
[Rafael 12/8 at 196:16-198:24.]
322. As a result of their absence, M.R.B.C. bonded with
Paquito, her primary caregiver, instead of Rafael and Marites,
and this bond continues.
[Id. at 197:03-198:24.]
323. If Rafael and Paquito arrived home at the same time,
M.R.B.C. would run to Paquito instead of Rafael.
[Id. at 198:4-
324. According to Rafael, the biggest losses attributable
to the incident are:
normal family function, quality of life,
and his children’s innocence.
[Id. at 199:5-20.]
325. Rafael does not complain despite the fact that this
situation has prevented him from pursuing his dreams.
senses that he is exhausted given the many burdens he shoulders.
[Marites 12/12 at 90:16-22.]
326. Dr. Klein testified that he recommends preventive
marital counseling for all patients because kidney disease
affects the spouse and family.
[Dr. Klein 12/5 at 37:10-24.]
327. Dr. Ching likewise assumed that Marites’ limitations
due to her kidney disease affect Rafael’s quality of life.
Ching 12/11 at 145:2-5.]
328. Rafael’s biggest concern for his family moving forward
is the absence of peace of mind.
He worries about how long
Marites’ kidney will last, the return to hemodialysis, and other
complications that may arise.
[Rafael 12/8 at 199:21-200:9.]
R.M.B.C., R.B.B.C., and M.R.B.C.
329. R.M.B.C. and R.B.B.C. were 14 and 11 at the time of
Marites’ extended hospitalization, and were old enough to
understand the severity and seriousness of the situation.
J-1 at TAMC2 4214.]
Both were devastated by what happened to
[Rafael 12/8 at 190:23-25.]
330. Prior to the incident, R.M.B.C. and R.B.B.C.
participated in judo and basketball.
[R.M.B.C. 12/7 at 90:3-5;
R.B.B.C. 12/7 at 117:6-8.]
331. Prior to the incident, the Campano family would go to
the park and play basketball and tennis, participate in the
boys’ activities and competitions, go to the beach at Pupukea,
have potlucks with friends and family, watch movies, hike,
participate in church activities, and visit relatives on the
[R.M.B.C 12/7 at 92:24-93:10; Rafael 12/8 at
332. Prior to the incident, R.M.B.C. typically sought
Marites’ assistance with his school work, but was unable to do
so after the incident.
[R.M.B.C. 12/7 at 93:14-23.]
333. R.M.B.C. learned that his mother was sick from
[Id. at 94:7-18.]
334. R.M.B.C. visited his mother at Tripler and witnessed
her condition in the ICU, where she was hooked up to multiple
tubes and was chanting.
[Id. at 94:19-95:2.]
335. During R.M.B.C.’s visit, Marites did not recognize him
or other family members and she was uncommunicative.
336. R.M.B.C. observed Marites repeatedly chanting
“onakunada,” a word that no one in the family recognized.
337. At a point during Marites’ first hospitalization,
Rafael broke down during a car ride to Tripler and told R.M.B.C.
and R.B.B.C. that Marites was not going to make it.
338. R.M.B.C. was too afraid to answer the telephone while
Marites was in the hospital because he was worried and scared to
receive word about her condition.
[Id. at 96:17-97:5.]
339. R.M.B.C. and R.B.B.C. became so concerned about
Marites during her second hospitalization that R.M.B.C expressed
his preference to be with Marites instead of attending school.
When Rafael told Marites that the boys did not want to go to
school, she broke from chanting and told the boys that they have
to do their homework and go to school.
[Id. at 98:21-99:24.]
340. As a result of the incident and Marites’ incidentcaused injuries, R.M.B.C. and R.B.B.C. were unable to continue
their sports activities, as no one was available to take them to
practices, games, and tournaments, and/or support them.
100:17-101:5; Rafael 12/8 at 189:6-190:19.]
341. As a result of the incident, R.M.B.C. had to assist
with M.R.B.C.’s care because Marites and Rafael were at the
He also assumed a greater role in R.B.B.C.’s life,
helping him with school work and other tasks ordinarily
undertaken by Rafael and Marites.
[R.M.B.C. 12/7 at 100:19-
342. R.M.B.C. would also accompany Marites to her dialysis
sessions, first going for two to three weeks straight, then
alternating with Rafael.
[Id. at 101:6-17.]
343. In May of 2014, R.M.B.C. cried and was worried and
angry when he learned that Marites had an ovarian cyst that her
doctors suggested might be cancerous.
[Id. at 101:18-102:4.]
344. R.M.B.C. questioned his faith in God because of the
many bad things that happened to Marites.
[Id. at 102:21-
345. R.M.B.C. resented M.R.B.C., blaming her for the harm
that befell Marites.
[Id. at 104:3-18.]
346. R.M.B.C. broke down emotionally for several minutes on
the witness stand when discussing his prior feelings toward
M.R.B.C. and acknowledging it was wrong.
[Id. at 104:7-105:4.]
347. R.M.B.C.’s grades suffered during Marites’ illness.
[Id. at 105:19-24.]
348. R.M.B.C. notices that Marites has become far more
emotionally unstable, irritable, and is prone to throwing things
and screaming for extended periods when she gets upset, none of
which she would have done prior to the incident.
happy all the time and very caring.
She used to be
R.M.B.C. described her as
calm, the peacekeeper of the house, nice, and loving.
106:23-108:18; R.B.B.C. 12/7 at 117:3-5.]
349. After the first hospitalization, Marites was quiet and
depressed and said little to R.M.B.C. and R.B.B.C.
12/7 at 121:18-21.]
350. After the second hospitalization, Marites remained
distant and cried almost daily.
She apologized to the boys for
not being there for them and for the situation.
351. A rift has developed between R.M.B.C. and Marites
since the incident, which affects their connection.
differences have arisen between them.
[Id. at 113:19-114:1.]
352. R.M.B.C. and R.B.B.C. exercise greater caution around
Marites and avoid doing things that will upset her for fear of
causing her stress and affecting her transplanted kidney.
353. R.B.B.C. recalls visiting Marites while she was at
Tripler and noticing that she looked “fluffy,” or a lot bigger,
and her legs were bloated.
[R.B.B.C. 12/7 at 120:9-12.]
354. R.B.B.C. also remembers that Marites did not recognize
him when he came to visit her and that she was chanting
[Id. at 120:13-121:1.]
355. R.B.B.C. had difficulty focusing and his grades
suffered while Marites was ill.
[Id. at 123:14-18.]
356. R.M.B.C. and R.B.B.C. bore witness to the acuteness of
Marites’ condition, which included periods of unconsciousness
and altered mental status where she did not recognize them, and
great uncertainty about her survival.
[Ex. J-1 at TAMC2 4070-
357. As mentioned above, because of the severity of the
trauma that Marites suffered at Tripler after M.R.B.C.’s birth,
Marites associated said trauma with M.R.B.C. herself.
358. Marites admitted to hating M.R.B.C., who was both a
trigger and a constant reminder of the traumatic ordeal.
at TAMC2 7016-20.]
359. The incident and aftermath cost the family their
[Id. at 90:23-25.]
Although the children wished
to go out and do things as a family, they were unable to do so
because of Marites’ condition.
[Rafael 12/8 at 199:8-15.]
360. Marites wishes she could care for her children and
worries about her relationship with R.M.B.C. and R.B.B.C going
[Marites 12/12 at 91:1-18.]
361. Dr. Ching assumed that Marites’ limitations due to her
kidney disease affect her children’s quality of life.
Ching 12/11 at 145:2-5.]
Past Medical Expenses
362. Marites’ past medical expenses related to the incident
total $1,838,267.03 and are comprised of the following:
Pearlridge Dialysis - $1,524,376.24; 2) Pali Momi Medical Center
- $5,068.95; 3) Brian Pien, M.D. - $350.98; 4) Queen’s $280,633.18; 5) Nada, Ono, Ka`anehe & Solomon, LLP - $17,925.58;
and 6) Surgical Associates - $9,912.10.
363. Defendant challenges the hospitalization and emergency
room costs related to Marites’ ovarian cysts from 2014 to 2015,
and the emergency room costs for Marites’ vertigo on December
Defendant contends that the foregoing are unrelated
to Marites’ ESRD and the incident.
With respect to the ovarian
cysts, Defendant points to the IUD as the cause, and posits that
the cysts and related health issues would have been avoided if
Rafael opted to get a vasectomy.
Defendant has not adduced any
evidence to support this argument, and the record establishes
Marites intended to have a tubal ligation following
M.R.B.C.’s birth, but the incident precluded her from doing so.
Marites had the IUD insertion because she was advised to avoid
Dr. Klein testified that although the IUD caused the
ovarian cysts, the resulting complications - the abscess,
multiple hospital visits, and extensive surgery - were related
to her immunosuppression.
[Dr. Klein 12/5 at 17:25-19:11.]
Ching testified that Marites’ cysts were caused by, and the
emergency room visits and hospitalization indirectly related to,
the initial hospital complications.
[Dr. Ching 12/11 at 115:19-
Moreover, the suggestion that a vasectomy, a surgical
procedure, should have been elected as the form of birth control
instead of an IUD is unavailing.
The Court therefore finds that
Marites is entitled to the requested past medical expenses.
364. Defendant is entitled to a $342,558.00 offset for past
Tricare benefits paid.
[Ex. J-92A at 59.]
365. Applying the offset, Marites is entitled to
$1,495,709.03 in past medical expenses.
Past and Future Wage Loss Damages
366. As earlier noted, the parties stipulated that Marites’
past and future wage loss amounts total $538,092.00.
Future Care Needs
367. Dr. Loudat performed an economic analysis of Marites’
incident-caused economic damages in this case.
[Ex. J-34 (Dr.
Loudat Original Report) at 1.]
368. When estimating the cost of all future economic
damages, Dr. Loudat has adjusted the amounts to present value in
all of his reports and opinions.
[Dr. Loudat 12/7 at 15:17-24.]
369. The Court finds that Dr. Loudat’s testimony and
opinions regarding the present value cost of the Marites’ future
lifetime care needs are more credible than the opinions of
370. The Court finds that Dr. Loudat utilized the
appropriate interest rates and discount rates for all items set
forth in the Klemme plan in determining the present value of
Marites’ future life care costs.
The Court further finds that
Dr. Loudat’s methodology was sound.
371. Based on the testimony received in the case from the
medical and other experts, the Court finds that Dr. Loudat’s
Alternative No. 6, Option A (Hawaii Transplant) estimate of
$22,734,208.00 for the present value of Marites’ future care
needs is the most appropriate and credible.
Amended Additional LCP Scenarios 1-12).]
[P-136 (Dr. Loudat
However, applying the
reduction earlier imposed with respect to annual
hospitalization, this estimate should be reduced by
Accordingly, the Court finds that $18,534,867.50
represents Marites’ reasonable and necessary future care needs.
No Offset Against Future Care Costs.
372. The Court finds there is insufficient credible
evidence in the record to support any claimed offset against
Marites’ future care costs.
373. The Court finds Defendant has not proven that it is
entitled to any offset from any source against Marites’ future
CONCLUSIONS OF LAW
This Court has jurisdiction over the instant action
pursuant to the FTCA, 28 U.S.C. §§ 1346(b) and 2671, et seq.
Defendant is liable to Plaintiffs “in the same manner
and to the same extent as a private individual under like
28 U.S.C. § 2674.
Venue is proper pursuant to 28 U.S.C. § 1402(b).
Jurisdiction and venue are proper because the acts and
omissions alleged in the administrative claim and in the
Complaint occurred within the State of Hawaii.
The law of the state in which the alleged tort
occurred applies in FTCA actions.
Tekle v. United States, 511
F.3d 839, 853 (9th Cir. 2007) (citing Conrad v. United States,
447 F.3d 760, 767 (9th Cir. 2006)).
Hawaii law governs the components and measure of
damages in this action.
Shaw v. United States, 741 F.2d 1202,
1205 (9th Cir. 1984).
Under Hawaii law, noneconomic damages “include damages
for pain and suffering, mental anguish, disfigurement, loss of
enjoyment of life, loss of consortium, and all other
nonpecuniary losses or claims.”
Haw. Rev. Stat. § 663-8.5(a).
Pain and suffering is defined as “actual physical pain and
suffering that is the proximate result of a physical injury
sustained by a person.”
Haw. Rev. Stat. § 663-8.5(b).
for pain and suffering are limited to $375,000.00.
Stat. § 663-8.7.
“Loss of consortium claims are derivative, as they are
based on the underlying claim of a spouse or child who has
Thompson v. Saint Louis Sch., 125 Haw. 242,
257 P.3d 1219 (Haw. Ct. App. 2011) (citing Brown v. KFC Nat’l
Mgmt. Co., 82 Hawai`i 226, 241, 921 P.2d 146, 161 (1996)).
However, they are claims “for damages independent and separate
from the spouse’s claim for damages.”
Brown, 82 Hawai`i at 241,
921 P.2d at 161 (citation omitted).
Loss of filial consortium is a recognized cause of
action under Hawaii law.
Masaki v. Gen. Motors Corp., 71 Haw.
1, 22, 780 P.2d 566, 578 (1989); Marquardt v. United Airlines,
Inc., 781 F. Supp. 1487, 1492 (D. Haw. 1992); Mettias v. United
States, Civ. No. 12–00527 ACK–KSC, 2015 WL 1931082, at *35 (D.
Haw. Apr. 21, 2015).
This district court has recognized a cause of action
for loss of parental consortium under Hawaii law.
781 F. Supp. 1487, 1491 (D. Haw. 1992); Mettias, 2015 WL
1931082, at *35.
Like loss of consortium claims in the spousal
context, “a claim by a child for loss of consortium is
derivative of the damages to the parent.”
Mettias, 2015 WL
1931082, at *35.
Given the parties’ stipulation to Defendant’s sole
liability for Marites’ injuries, the Court concludes that the
care providers at Tripler negligently breached the medical
and/or nursing standards of care in their treatment of Marites
beginning on July 22, 2013.
The aforesaid care providers were all employees and/or
representatives of Defendant and were acting within the course
and scope of their employment while caring for and treating
Defendant is therefore vicariously liable for the care
providers’ negligence during Marites’ admission at Tripler that
commenced on July 22, 2013.
The care providers’ negligence legally caused Marites’
injuries and damages, including her ESRD and all other injuries
and damages identified herein.
As a proximate and legal result of this negligence,
Marites suffered physical injury, including but not limited to
ESRD requiring hemodialysis and/or kidney transplants for the
remainder of her life.
As a proximate and legal result of Defendant’s
negligence, Marites incurred past medical expenses and will
continue to incur medical and other care expenses for the
remainder of her life.
As a proximate and legal result of Defendant’s
negligence, Marites is unable to work, she incurred past wage
loss, and she suffered impairment to her earning capacity.
Marites will incur wage loss for the remainder of her work life
As a proximate and legal result of Defendant’s
negligence, Marites suffered physical pain and suffering, mental
anguish/emotional distress, loss of enjoyment of life, loss of
consortium, and disfigurement.
As a proximate and legal result of Defendant’s
negligence, Rafael suffered mental anguish/emotional distress,
and loss of spousal consortium.
As a proximate and legal result of Defendant’s
negligence, R.M.B.C., R.B.B.C., and M.R.B.C. suffered mental
anguish/emotional distress, and loss of parental consortium.
Award of Damages
Based on the evidence presented, Plaintiffs are
entitled to the following damages:
Past medical and care expenses
(with offset to Defendant)
Future medical care and expenses
Past and future wage loss and
impairment of earning capacity
Pain and suffering
Mental anguish, disfigurement,
loss of enjoyment of life, and
loss of consortium
Mental anguish and loss of
Mental anguish and loss of
Mental anguish and loss of
Mental anguish and loss of
Defendant has not met its burden of adducing
sufficient credible evidence to establish its entitlement to
and/or the amount of any offset against any of the costs of
Marites’ future care needs.
Consequently, Defendant is not
entitled to any offset from any source against Marites’ future
An award of attorneys’ fees against the United States
is barred by sovereign immunity unless a statute expressly
authorizes such an award.
Anderson v. United States, 127 F.3d
1190, 1191 (9th Cir. 1997).
“Congress has not waived the
government’s sovereign immunity for attorneys’ fees and expenses
under the FTCA.”
Id. at 1192.
Thus, Plaintiffs are not
entitled to an award of attorneys’ fees in the present action.
Plaintiffs may, however, recover their costs.
Plaintiffs shall file, within 21 days from the entry of
judgment, the necessary affidavits to resolve the question of
In accordance with the above findings of fact and
conclusions of law, the Court HEREBY ORDERS that judgment enter
in favor of Plaintiffs and against Defendant in the amount of
$24,743,668.53, which represents $22,443,668.53 to Plaintiff
Marites Campano; $950,000.00 to Plaintiff Rafael Campano;
$450,000.00 to Plaintiffs Marites and Rafael Campano as next
friend of R.M.B.C.; $450,000.00 to Plaintiffs Marites and Rafael
Campano as next friend of R.B.B.C.; and $450,000.00 to
Plaintiffs Marites and Rafael Campano as next friend of M.R.B.C.
Defendant is ORDERED to remit payment to Plaintiffs, through
counsel, within 60 days of the entry of judgment.
IT IS SO ORDERED.
Honolulu, March 7, 2018.
Kevin S.C. Chang
United States Magistrate Judge
CIVIL NO. 15-00439 KSC; CAMPANO, ET AL. V. UNITED STATES OF AMERICA; FINDINGS
OF FACT AND CONCLUSIONS OF LAW
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