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HEADNOTES

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

On June 15, 2010, the parties entered their stipulation of facts in this case. Trial was held on

[18 FSM R. 579]

October 9-10, 2012.¹ Defendant Dr. Paul Skilling, Dr. Carolee Masao, Dr. Lilly Jonas, Sepe Jackson, Shue Melander, and Dr. Levinson Taulung testified. The FSM defendants filed written closing arguments on November 15, 2012, and the plaintiffs filed their written rebuttal on January 14, 2013, at which time the court considered the case to be submitted to it for its decision. Based on their testimony and the evidence admitted and the parties' stipulated facts, the court makes the following

FINDINGS OF FACT.

Monalisa J. William was the wife of John B. William. During 1997, Dr. Paul Skilling treated Monalisa J. William for inflammation of throat, fever, and headache, all flu symptoms. In December 1997, she was diagnosed as having strep throat and tonsillitis. In September 2000, because of her continuing symptoms, including weight loss, the doctors at Kosrae State Hospital suspected hyperthyroidism. Blood samples were taken and sent off-island for diagnostic tests that could not be performed on Kosrae. The Kosrae State Hospital did not receive the test results.

April 15-18, 2001, Monalisa William was treated again at the Kosrae State Hospital for hyperthyroidism, goiter, and other ailments. She was recommended for off-island referral for treatment. On April 22, 2001, the Kosrae office of the FSM National Government Employees Health Insurance Plan ("NGEHIP") received the referral request which was promptly forwarded to the main office on Pohnpei. The main office, after its internal review, approved the request on May 2, 2001 and the Kosrae office immediately informed the patient that she should book the earliest possible flight to Manila, Philippines to be treated there at St. Luke's Medical Center. Since it was not considered an emergency referral, no medical attendant was needed. Her husband insisted that he go with her but that he could not go until he could use a Continental Airlines One Pass ticket to accompany her. NGEHIP is not responsible for family attendants. She therefore did not leave until June 5, 2001, which was when her husband could get a Continental Airlines One Pass ticket.

Monalisa William was seen and treated at St. Luke's on June 5-11, 2001. St. Luke's confirmed the Kosrae State Hospital diagnosis of hyperthyroidism and recommended that she take certain medication and there be a follow-up after one month. Monalisa William returned to Kosrae. Her St. Luke's discharge papers with the diagnosis and recommended treatment were given to the NGEHIP Kosrae office shortly after the Williams returned to Kosrae. There was no evidence presented about whether or when the Kosrae State Hospital also received a copy.

On July 23, 2001, Monalisa William came in sick to the Kosrae State Hospital. She told the doctor that she had stopped taking her medication. She was told to resume taking her medicine. The doctors wanted to admit her to the hospital and keep her there under their treatment and care until she could go to her follow-up at St. Luke's. Instead she went home at her husband's request. Since Monalisa William did not remain in the hospital, it is unknown whether she resumed taking her medication. If she had remained in the Kosrae State Hospital, the hospital would have seen that she took her medicine.

On July 23, 2001, NGEHIP Kosrae office received the referral request which was promptly forwarded to the main office on Pohnpei which approved the request on July 25, 2001. NGEHIP was ready to and expected to put Monalisa William on the earliest available flight. Although Monalisa William did not need a medical attendant Continental Airlines did require that she be accompanied by someone since she had a medical fitness form. Once again, her husband was going to accompany her and he wanted to use a One Pass ticket since he did not have ready cash. Kosrae State Hospital was never asked for assistance in providing or paying for the cost of an attendant for Monalisa William. NGEHIP does not arrange for attendants since that is done by Kosrae State Hospital when one is needed. The earliest date for which John William could get a One Pass ticket was August 14, 2001. NGEHIP therefore booked that date for Monalisa William's travel although its main office expressed concern over the delay.

[18 FSM R. 580]

On August 14, 2001, Monalisa William and her husband left on the flight to Guam where they would change planes later that day to go on to Manila. Monalisa William died at Guam airport. The Guam autopsy determined that Monalisa William's death was caused by "acute heart failure and thyromegaly with mechanical compression of the trachea." She was 38 years old at the time of her death.

If a full course of treatment through medication was not successful in treating the hyperthyroidism, then either iodine radiation therapy (iodine pills) or surgery at St. Luke's Medical Center to remove part of the thyroid would have been a likely next treatment. Such surgery has a 90% success rate.

Monalisa William had seven children (the named plaintiffs). No one testified or introduced any evidence of the amount of damages the plaintiffs may have suffered as a result of Monalisa William's demise.

Based on these findings, the court makes the following

CONCLUSIONS OF LAW.

The plaintiffs allege that their mother's wrongful death was caused by the defendants' negligence in providing her medical care (medical malpractice) and in their negligence in getting her to St. Luke's Medical Center where she could be properly treated. Liability for the tort of negligence requires that there be a duty of care owed by the defendants to the plaintiff, a breach of this duty, damages caused by the breach, and a determination of the value of the damages. Phillip v. Kosrae, 14 FSM Intrm. 109, 113 (Kos. S. Ct. Tr. 2006); Nena v. Kosrae, 5 FSM Intrm. 417, 420 (Kos. S. Ct. Tr. 1990). Only when there is a duty of care, breach of this duty, damage caused by the breach, and determination of the value of the damage can there be a liability for negligence. Jonah v. Kosrae, 9 FSM Intrm. 335, 341 (Kos. S. Ct. Tr. 2000). The plaintiffs have the burden of proving each these elements in order to prevail on a negligence claim, Andon v. Shrew, 15 FSM Intrm. 315, 320 (Kos. S. Ct. Tr. 2007), and if the plaintiffs fail to prove any one element, judgment will be entered against them, Ehsa v. Kinkatsukyo, 16 FSM Intrm. 450, 456 (Pon. 2009).

A. Medical Malpractice and the Medical Profession's Duty of Care

The Kosrae defendants (Kosrae State Hospital, Dr. Paul Skilling, and, as respondeat superior, the Kosrae State Government) are alleged to be liable for medical malpractice – negligence in rendering professional medical services. Dr. Skilling and the Kosrae State Hospital undertook to render professional medical services to Monalisa William. Generally, one who undertakes to render professional service is under a duty to the person for whom the service is to be performed to exercise

[18 FSM R. 581]

such care, skill, and diligence as someone in that profession ordinarily exercises under like circumstances. FSM v. GMP Hawaii, Inc., 17 FSM Intrm. 555, 579-80 (Pon. 2011).

The court concludes that Dr. Skilling and the Kosrae State Hospital did not breach their duty to render professional medical services since they exercised such care, skill, and diligence as someone in that profession ordinarily exercises under like circumstances. They correctly diagnosed Monalisa William's ailment. They recommended her for off-island referral to an appropriate medical facility when they were unable to do the tests to confirm their diagnosis and since they were unable to offer all of the treatment options that might be needed. When Monalisa William sought treatment at Kosrae State Hospital in July 2001, they offered her appropriate medical care (to continue her medications) as an in-patient until she could go to St. Luke's for her follow-up, but she refused admission. Since a patient may always refuse medical treatment, the Kosrae defendants cannot be said to have breached their duty of care and be held liable for the results of Monalisa William's refusal to remain at Kosrae State Hospital for treatment until she could leave for St. Luke's. The Kosrae defendants therefore did not commit medical malpractice in their treatment of Monalisa William.

B. Other Negligence and Proximate Cause

The other negligence alleged by the plaintiffs is that the defendants failed to timely refer Monalisa William to St. Luke's – that the defendants delayed in referring Monalisa William to St. Luke's and that that delay was the proximate cause of her death. The court cannot say that the delay between Monalisa William's April 15-18, 2001 treatment at Kosrae State Hospital and her June 5-11, 2001 treatment at St. Luke's was the proximate cause of her death. This is because even if the usually successful drug therapy prescribed by St. Luke's was not successful then either iodine pill therapy or thyroid surgery would have been tried and surgery had a 90% chance of survival. Thus, any delay before the June referral to St. Luke's, regardless of who caused it, did not proximately cause Monalisa William's death and so cannot be the basis to hold anyone liable for her death.

When Monalisa William came to the Kosrae State Hospital on July 23, 2001, they treated her, tried (unsuccessfully) to admit her, and sought to have her referred to St. Luke's quickly for her follow-up. NGEHIP approved Monalisa William's referral only two days later and was ready to put her on the earliest possible flight to Manila. Monalisa William did not leave for Manila until 20 days later. This long delay was the proximate cause of Monalisa William's death. This delay was not caused by NGEHIP. Its main office expressed concern over the delay. The delay was caused because John William wished to go as his wife's family attendant and August 14, 2001, was the earliest date he could get a Continental Airlines One Pass ticket to Manila. NGEHIP accordingly booked Monalisa William's travel for that date as requested. NGEHIP did not cause the delay. Nor did it breach any duty to Monalisa William. It would have booked Monalisa William's flight to Manila much earlier if it had not been asked by Monalisa William and her husband to delay it until August 14, 2001.

Accordingly, the actions of the FSM defendants (NGEHIP and the Office of Administrative Services as its respondeat superior) were not the proximate cause of Monalisa William's death.

C. Other Negligence and the Duty of Care

The plaintiffs contend that the delay was caused by the defendants who breached their duty of care toward Monalisa William either by not informing her that, if her husband asked, the State could buy his ticket which he would then have to repay out of his wages once he returned to Kosrae or by not informing her that the state could pay for an attendant to go with her. The plaintiffs rely on Kosrae State Code § 12.1103 for their contention that the state would have paid for John William's ticket. That statute, in pertinent part, provides that "[a] person pays for medical . . . services provided by the

[18 FSM R. 582]

Government . . . . The Government may not deny medical care available in the State to a person because of the inability to pay a fee and makes no distinction in treatment or care because of inability to pay." Kos. S.C. § 12.1103. That statute is inapplicable on its face because it applies to "medical care available in the State" and refers to "the inability to pay a fee." Continental Airlines airfare is not a fee paid to the state government is not a fee for medical services provided by the State and the medical referral services performed at St. Luke's is not "medical care available in the State."

Nevertheless, Dr. Taulung did testify that if the State had been asked, the State would have helped but that the State was never asked. There was no evidence that the NGEHIP knew of this alleged state policy. It therefore did not breach any duty by not telling Monalisa William's husband to ask the state for financial assistance for his air ticket. The State did not have a statutorily-created duty under Kosrae State Code § 12.1103 to assist in paying for the family attendant's airfare. It therefore did not have a statutorily-created duty to inform John William that he could ask the State for financial assistance for his own airfare to Manila. There was insufficient evidence before the court that it was State policy to pay for family attendant's airfare and to then seek repayment by wage or salary allotments.

There was no evidence about when this policy was implemented, by whom it was implemented, whether this policy was in existence in July 2001, the process used to apply for these funds, and whether there were any such funds available in late July 2001 that could have been used to immediately pay for John William's ticket. (Kosrae Code § 12.1104 provides that "[n]o person may use funds for medical referral in a manner contrary to regulation.") If no funds were available in July 2001, any request would have been futile and it would have been pointless to tell John William that the State could assist. A 1991 memorandum of understanding between the NGEHIP and the Kosrae State Hospital states that the Kosrae State Hospital "shall provide all necessary health care services within the State of Kosrae to all covered persons" and that these services "shall include the cost of a medical or other attendant to accompany a covered person to a health care facility." Memo. of Understanding § 2 [Ex. U]. This is an agreement that allocates the cost of attendants between the parties to the memorandum; that is, that the State rather than NGEHIP bears the responsibility for attendants. It does not, by itself, allocate costs or create duties between the State and the insureds ("covered persons") and their families. The court therefore cannot say the State breached a duty it owed to off-island referral patients to inform them that the State might assist the family attendant financially to pay for the family attendant's airfare.

D. Determination of the Value of Damages

Even if one or more of the defendants were found to have breached their duty of care, the plaintiffs, in order to recover, would still need to produce evidence of their damages so that the court could determine the amount of a monetary award. The plaintiffs, however, failed to put on any evidence about the damages they sustained from their mother's death, and as personal representatives of their mother, they failed to put forward any evidence of the damages she sustained. The court is therefore left without any evidence from which it might be able to determine a damages amount.

Plaintiff's counsel asserts in his closing argument and his written rebuttal that the court should award $10,000 for the Monalisa William's services to her husband and $10,000 for each child's loss of their mother's services to them ($70,000 for seven children) plus $20,000 for the husband's pain and suffering and $20,000 for the pain and suffering of each child ($140,000 for the seven children) for a total of $240,000. The plaintiffs ask the court to take judicial notice of these figures. When damages are calculated based on figures in statements made during closing argument, those damage amounts are not supported by evidence properly before the trial court, and, as such, any judgment based on them would be vacated. Livaie v. Weilbacher, 13 FSM Intrm. 139, 144-45 (App. 2005)

[18 FSM R. 583]

(damages figures first introduced during closing argument were not properly in evidence since the statement was not made under oath, not subject to cross-examination, and not subject to any rebuttal testimony by any witness). The court therefore cannot take the "judicial notice" of the plaintiffs' requested figures. Those figures cannot be used as evidence.

Monalisa William's husband, John B. William, was originally the lead plaintiff. He died on June 17, 2011.² The court later denied a motion to substitute others for John B. William. Consequently, he was dismissed as a plaintiff. Since he is no longer a party and since no one was substituted for him, any claims he may have had are no longer part of this litigation. The court therefore could not and cannot award any damages for someone who is no longer a party and for whom no one has been substituted, even if the damages were adequately proven and could be determined with satisfactory certainty.

Determination of damages is an essential element of the plaintiffs' causes of action. Trial was the time for the plaintiffs to present evidence about the amount of their damages. In civil cases, the plaintiff has the burden at trial of proving each element of the plaintiff's cause of action by a preponderance of the evidence, and if the plaintiff fails to do so, judgment will be entered against the plaintiff. Tulensru v. Wakuk, 10 FSM Intrm. 128, 132 (App. 2001); see also Kimeuo v. Simina, 15 FSM Intrm. 664, 667 (Chk. 2008) (when no evidence was introduced at trial of how much, if any, unused annual leave the plaintiff had accrued before he was wrongfully terminated, the court could not make an award for unused accrued annual leave). The plaintiffs did not introduce any evidence of damages. When a plaintiff does not submit any evidence about his damages and therefore cannot prove damages, the plaintiff's negligence claim fails. Nakamura v. FSM Telecomm. Corp., 17 FSM Intrm. 119, 123 (Chk. 2010). Since the plaintiffs have not presented any evidence of their damages, it is therefore appropriate that judgment be entered against them.

CONCLUSION

Accordingly, the clerk shall enter a judgment against the plaintiffs and in the defendants' favor.

Footnotes:

¹ The plaintiffs originally also named St. Luke’s Medical Center and Dr. Romeo Saavedra as defendants, but those Philippine defendants were never served with process. Neither St. Luke's nor Dr. Saavedra were involved in the trial. Since the Philippine defendants were never served with the complaint and summons, the court never had personal jurisdiction over them, Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009); Lee v. Lee, 13 FSM Intrm. 252, 256 (Chk. 2005) and the plaintiffs' case against them was therefore considered abandoned and dismissed. No ruling can be made or judgment entered against persons over whom the court does not have personal jurisdiction. Helgenberger v. Mai Xiong Pacific Int'l, Inc., 17 FSM Intrm. 326, 332 (Pon. 2011).

² He had not been deposed before his death so any evidence he might have been able to provide was not preserved for trial.