Hawaii Medical Malpractice Laws

Weighing whether or not to bring a medical malpractice action can be a difficult and cumbersome process. You are likely in the midst of healing from your injury and now you are faced with the prospect of extensive litigation against a health care provider that you entrusted with your life.

Medical malpractice litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Hawaii; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Hawaii. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Hawaii

In Hawaii, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Hawaii places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Hawaii allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. The law in Hawaii caps the amount of non-economic damages you may be awarded to $375,000.

How long do I have to file a medical malpractice case in Hawaii?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Hawaii mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a credible cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that Hawaii law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover, or should have discovered, your injury, the two-year window to file your lawsuit begins. However, you may not bring an action for medical malpractice more than six years from the time date that the alleged malpractice took place, regardless of when you actually discovered your injury.

If the injured party was a minor under ten years of age, they have the later of reaching their tenth birthday or six years to file a medical malpractice lawsuit. [2]

In Hawaii Medical Malpractice Cases, who is Responsible?

In Hawaii, you may file a medical malpractice lawsuit against a physician, surgeon, osteopath, physician assistant, podiatrist, or health care facility licensed to practice or operate in the State of Hawaii if you sustained an injury as a result of professional negligence. [3]

The law in Hawaii considers professional negligence to be the rendering of professional service without informed consent, or an error or omission in professional practice, by a health care provider, which proximately caused death, injury, or other damage. [4]

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a health care provider is the that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

What if I am partially to blame? Can I Still Recover Money for Hawaii Medical Malpractice?

Hawaii, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Hawaii is one of 22 states (Connecticut, Delaware, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [5] In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become very sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and other medication that was against the doctor’s instructions that you consumed while on the newly prescribed medication. The court ultimately finds that the doctor never should have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed medication that was not permitted while on the newly prescribed medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Hawaii decided to adopt a modified system.

Are there medical malpractice recovery caps in Hawaii?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two types of damage awards you may receive in Hawaii:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation to you. In Hawaii, you must meet the burden of persuasion before a court may consider a punitive damage award. The law in Hawaii requires that you prove by clear and convincing evidence that the named defendants acted with wanton, oppressive or malicious conduct while implying harmful or indifferent spirit, or willful misconduct raising a presumption of indifference to your rights. [6]

The law in Hawaii caps the amount of non-economic damages you may be awarded to $375,000 in medical malpractice cases. [7]

Expert witness reporting and testimony

The law in many states requires you to file an affidavit citing the opinion of an expert that serves to substantiate your claim of medical negligence. The affidavit helps to weed out frivolous claims and allows legitimate cases to be decided more quickly. However, Hawaii does not require this type of pre-suit filing. Instead, the law in Hawaii only requires an expert’s opinion at trial in order to establish the apparent nature of your medical malpractice claim. At trial, the testimony given by an expert witness helps to establish the standard of care and then show how the defendant either lacked, or failed to exercise, the requisite degree of knowledge or skill held by health care providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

Are some parties immune from medical negligence cases?

The law provides immunity from litigation to volunteers acting in good faith and within the scope of their official functions and duties for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity when the damage or injury was caused by the volunteer’s negligent conduct and the nonprofit organization, nonprofit corporation, or hospital for which the volunteer was acting either has a general liability policy in force, both at the time of injury and at the time the claim is made against the entity, and the minimum coverage is in an amount of not less than $200,000 per occurrence and $500,000 aggregate or has total assets of less than $50,000. [8]

Settling medical malpractice cases in Hawaii

Most medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of mandatory pretrial mediation or screening panel and Hawaii is no different.

The law in Hawaii requires anyone interested in filing a medical malpractice claim against a physician, surgeon, physician assistant, osteopath, podiatrist, or health care facility to first file an inquiry with the Medical Inquiry and Conciliation Panel (“MICP”). [9]

To file the initial inquiry, you must use the MICP Inquiry Form or file a letter that includes:

• the complete names and addresses of the health care providers that are the subject of the inquiry
• a description of the alleged malpractice such as what, when, where, which health care providers were responsible for the negligence
• the negligent acts or omissions that you believe fell below the requisite standard of care.

After filing the inquiry, you must then have a physician evaluate your inquiry in order to fulfill the MICP’s certification requirement. If you do not have your inquiry evaluated by a physician, or at least make a good faith attempt to do so, your inquiry will be denied. [10]

Once your inquiry is filed, all involved parties will be notified and a date will be established whereby a hearing will be held. The hearing is intended to be non-adversarial forum for patients to convey information. Additionally, the hearing will help to better assist the parties in fully understanding the nature of claims being brought, the defenses that may be used in response to those claims, and the damages that may be sought. After the information is exchanged, the involved parties are encouraged to reach a voluntary settlement.

Litigating medical negligence cases in Hawaii

After first filing an inquiry with the MICP and undergoing a hearing with all of the involved parties, if a settlement was not ultimately reached, your claim will likely advance to trial.

A claim for medical malpractice in Hawaii is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

In Hawaii, a civil action begins by filing a Complaint with the clerk of the court. The Complaint should include the proper name of every plaintiff and of every defendant as well as a statement of facts constituting the cause of action.

A Civil Summons is also required and notifies the court and the defendant that you are filing a lawsuit. The Summons must be signed by the clerk of the court and must then, along with the Complaint, be delivered to all named defendants in the lawsuit. [11]

After the Complaint and Summons are served upon all named defendants, each defendant has 20 days to provide an Answer to the complaint. A copy of the Answer should be served upon the plaintiff’s attorney or the plaintiff.

Preparing for Litigation

After the MICP inquiry has concluded and the Complaint, Summons and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission [12]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition. At the trial any part of a deposition, if admissible under the rules of evidence, may be used against any party who was present at the deposition. [13]

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

When your physical condition is in controversy, the court in which the action is pending may order you to submit to a physical examination. In order for the examination to take place, an order must be made based upon good cause. The examination will serve to corroborate that the injury being complained of does in fact exist. [14]

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

As mentioned, the law in Hawaii requires anyone interested in filing a medical malpractice claim against a physician, surgeon, physician assistant, osteopath, podiatrist, or health care facility to first file an inquiry with the MICP with an eye focused on settlement. [15] However, if the involved parties agree, the MICP process may be bypassed in order to seek an alternative dispute resolution proceeding. [16] The MICP bypass will allow the claim to go directly to an alternative dispute resolution process without the inquiry ever reaching the MICP panel.

Generally, when a claim proceeds to an alternative dispute resolution proceeding, the proceeding is in the form of either arbitration or mediation. The Revised Uniform Arbitration Act (RUAA), governs voluntary agreements to arbitrate by parties involved in a litigation proceeding. To begin an arbitration proceeding, an involved party must give notice to the other involved parties to the agreement to arbitrate. [17] After an arbitrator is selected, a time and date of the arbitration hearing will be established. At the hearing, each side will have the opportunity to present their arguments and at the conclusion, the arbitrator will make a record of an award. [18]

Mediation is an informal method of settling a dispute that does not involve having to go to court. Once a mediation proceeding is initiated, a qualified and objective neutral third party is appointed to work with each side in order to attempt to resolve the dispute in an amicable and peaceful way.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Hawaii: a judge or a jury. In Hawaii, cases required to be tried by jury will be unless the defendant waives a jury trial with the approval of the court. When a jury does hear a case, there will be 12 jurors on the panel but at any time before a verdict is rendered, the parties may stipulate in writing with the approval of the court that the jury shall consist of fewer than 12. [19] Hawaii Rules of Civil Procedure Rule 23

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in Hawaii allows each side to have three peremptory challenges where jurors may be eliminated from consideration. [20] Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Hawaii, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Hawaii
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witnesses will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. Most appeals taking place in Hawaii must be filed within 30 days from notice of the judgment or decision. [21]

How to find the best Hawaii Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury and moving on with your life.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. The medical bills can be astronomical, making adequate compensation all the more important.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. Do your due diligence and interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to yours. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency rate.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Be careful of false promises. An attorney or firm who feels your case is a “slam dunk” is likely just trying to secure your business and should raise a red flag. Medical malpractice cases are complex and far from a sure thing. Make certain that an attorney or firm is serious about dedicating the requisite time to put you in a position to have a successful outcome.

Some notable medical malpractice law decisions from Hawaii

These cases represent awards to plaintiffs in medical malpractice cases in Hawaii. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Estate of Arturo Iturralde, v. Hilo Medical Center, and Medtronic Sofamor Danek, and Robert Ricketson

The patient, Arturo Iturralde, was undergoing surgery on his spine when the defendant, Dr. Robert Ricketson, discovered that two titanium rods needed to fix the patient’s spine were missing from the inventory. Rather than waiting for the medical supply company to deliver the needed equipment, the defendant decided to use the shaft of a screwdriver as a replacement for the missing rods.

A few days after the makeshift surgery was performed, the shaft of the screwdriver snapped in the patient’s back and required him to have additional surgeries. Complications from the surgeries caused the patient to pass away.

The family of the patient brought suit against Dr. Ricketson, the Hilo Medical Center that employed Dr. Ricketson, and the medical supply company that failed to supply the rods that were needed for the surgery.

The trial lasted five weeks and ultimately the jury awarded $5.6 million in damages, assigning 65% liability to Dr. Ricketson and 35% to the Hilo Medical Center 35%. The medical supply company was not found to be liable.

Kohl v. Tripler Army Medical Center

Parker Kohl. The son of Darius and Karen Kohl, was born with a pre-existing heart condition. When Parker was five months old, he developed a viral disease called respiratory syncytial virus and, as a result, was placed on a breathing tube while in the hospital’s pediatric intensive care unit. Doctors later removed the tube because they thought Parker’s health had improved. However, his condition soon began to deteriorate. A nurse took notice and attempted to seek help from doctors but was unable to do so. Parker ultimate stopped breathing and suffered brain damage prior to being resuscitated.

Parker’s parents brought a lawsuit claiming that had his breathing tube been properly reattached, the respiratory failure would not have happened and his brain function would have been normal. During the trial, it was argued that the Tripler Army Medical Center staff failed to provide adequate care to Parker by failing to monitor and respond to Parker’s deteriorating condition; failing to reattach Parker’s breathing tube; failing to take a blood gas test that would have indicated Parker’s respiratory failure; failing to initiate intravenous access and failing to wean Parker off narcotic medication.

The jury ultimately agreed and awarded $9.4 million in damages.

Footnotes

[1] Haw. Rev. Stat. § 657-7.3

[2] Haw. Rev. Stat. § 657-7.3

[3] Haw. Rev. Stat. § 671-1

[4] Haw. Rev. Stat. § 671-1

[5] Haw. Rev. Stat. § 663-31

[6] Masaki v. Gen. Motors, Co., 71 Haw. 1, 16-17, 780 P.2d (1989)

[7] Haw. Rev. Stat. § 663-8.7

[8] Haw. Rev. Stat. § 662D-2

[9] Act 296

[10] Haw. Rev. Stat. § 671-12.5

[11] Haw. R. Civ. P. 4(d)(1)

[12] Haw. R. Civ. P. Rule 26

[13] Haw. R. Civ. P. Rule 32

[14] Haw. R. Civ. P. Rule 35

[15] Act 296

[16] Haw. Rev. Stat. § 671-16.6

[17] Haw. Rev. Stat. § 658A-9

[18] Haw. Rev. Stat. § 658A-19

[19] Haw. R. Civ. P. Rule 23

[20] Haw. Rev. Stat. § 635-29(b)

[21] Haw. R. App. P. 4