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The Law of Medical Malpractice in Hawaii:
A Survey of Basic Considerations
Hawaii medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Hawaii are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Hawaii exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Hawaii by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.
This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Hawaii medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.
Section I below discusses the broad basic principles and concepts of medical malpractice law in Hawaii. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Hawaii.
Below is a list of topics covered in this article.
I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Hawaii?
-Required Elements of a Medical Malpractice Claim in Hawaii
-The Basic Elements
II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Hawaii
-The Discovery Rule
-The Discovery Rule in Hawaii
III. Statute of Repose—Absolute Bar to Recovery
-Statute of Repose in Hawaii
IV. Immunities and Limitations on Liability
-Sovereign Immunity in Hawaii
-Good Samaritan Law
-Good Samaritan Law in Hawaii
-Additional Immunities and Limitations on Liability
V. Presuit Requirements for Medical Malpractice Claims
VI. Required Elements of a Medical Malpractice Complaint
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony in Hawaii
-Modified Comparative Negligence with 51% Bar Rule
-Apportionment of Fault with Multiple Defendants
IX. Limitation on Noneconomic Damages
X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Hawaii
XI. Apologies and Gestures of Sympathy
I. Overview of Basic Principles and Concepts
What is Medical Malpractice in Hawaii?
Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.
Required Elements of a Medical Malpractice Claim in Hawaii
It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Hawaii law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.
Hawaii medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.
The Hawaii Supreme Court made this point clear in Craft v. Peebles, 893 P.2d 138, 158 (Haw. 1995), when it instructed: “It is well settled that negligence and causation are independent legal requirements, and that a finding of negligence does not automatically imply causation.” Furthermore, “the causal connection between the negligent act and the injury complained of … must be shown. Proximate causation of an injury must be proved and is never presumed.” Dzurik v. Tamura, 359 P.2d 164, 165 (Haw. 1960).
The Basic Elements
There are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff. Takayama v. Kaiser Foundation Hospital, 923 P.2d 903, 915-916 (Haw. 1996).
- Duty—or obligation, recognized by the law, requiring the healthcare provider to conform to a certain standard of conduct, for the protection of others against unreasonable risk;
- Breach—a failure on the healthcare provider’s part to conform to the standard required, i.e., a breach of the duty;
- Causation—a reasonably close causal connection between the conduct and the resulting injury; and
- Damages—actual loss or damage resulting to the interests of another.
As the Hawaii Supreme Court noted, “[a] fundamental requirement of a negligence action is the existence of a duty owed by the defendant to the plaintiff….” Kahoohanohano v. Department of Human Services, State of Hawaii, 178 P.3d 538, 562-563 (Haw. 2008). In a healthcare provider-patient relationship, the healthcare provider clearly owes a duty towards the patient. Nishi v. Hartwell, 473 P.2d 116, 119 (Haw. 1970). In the medical malpractice context, that duty is referred to as the standard of care. Under Hawaii law, “[i]t is well settled in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care….” Craft v. Peebles, 893 P.2d 138, 149 (Haw. 1995). That is, providing medical treatment that falls below or deviates from the applicable standard of care constitutes a breach and may result in a finding of negligence.
The applicable standard of care must be established by expert medical testimony because “a jury generally lacks the requisite special knowledge, technical training, and background to be able to determine the applicable standard without the assistance of an expert.” [internal quotation marks omitted] Id. The Hawaii Supreme Court explained that “lay jurors are ill prepared to evaluate complicated technical data for the purpose of determining whether professional conduct conformed to a reasonable standard of care and whether there is a causal relationship between the violation of a duty and an injury to the patient. Therefore, expert opinion evidence is generally required to aid the jury in its tasks.” Devine v. Queen’s Medical Center, 574 P.2d 1352, 1353 (Haw. 1978).
The Supreme Court further explained that “it is generally not sufficient for a plaintiff’s expert witness … to testify as to what he or she would have done in treating a particular patient. The expert must go further and state that the defendant’s treatment deviated from any of the methods of treatment approved by the standards of the profession.” Id.
However, there is a notable exception to the general rule that expert medical testimony is required to establish the standard of care and breach thereof. It is called the common knowledge exception, which “provides that certain medical situations present routine or non-complex matters wherein a lay person is capable of supplanting the applicable standard of care from his or her ‘common knowledge’ or ordinary experience.” Craft, 893 P.2d at 149.
In elaborating on the common knowledge exception, the Hawaii Supreme Court noted:
some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge in the patient’s interior, or removes or injures an inappropriate part of his anatomy, or when a tooth is dropped down his windpipe or he suffers a serious burn from a hot water bottle, or when instruments are not sterilized, the thing speaks for itself without the aid of any expert’s advice. Id. (quoting Medina v. Figuered, 647 P.2d 292, 294 (Haw. Ct. App. 1982).
The Supreme Court instructed that when “the ‘common knowledge’ exception is applied, the medical malpractice case transforms into an ordinary negligence case, thus obviating the necessity of expert testimony to establish the applicable standard of care.” Id.
Generally, the issue of causation in medical malpractice cases must also be established through the use of expert medical testimony. On this point, the Hawaii Supreme Court stated: “Clearly, a jury of lay persons generally lacks the knowledge to determine the factual issues of medical causation, the degree of skill, knowledge, and experience required of the physician, and the breach of the medical standard of care.” Exotics Hawaii v. El Du Pont de Nemours, 172 P.3d 1021, 1044 (Haw. 2007).
The Supreme Court explained that when “the issue is one of medical causation, expert testimony may be qualified and less than unequivocal.” Akamine v. Hawaiian Packing and Crating Co., Ltd., 495 P.2d 1164, 1171 (Haw. 1972). Expert medical witness testimony may be expressed “in terms of probabilities.” Id. The Supreme Court provided the following guidance:
When causation of the injury is a medical issue … the matter does not turn on the use of a particular form of words by the physicians in giving their testimony, since it is for the trier of facts, not the medical witnesses, to make a legal determination of the question of causation. Hence, the failure of a medical witness to testify positively as to what was the cause of the injury, or his statement that the accident “might” be or “probably” was the cause of the injury, is merely a circumstance to be taken into consideration by the trier of facts. Dzurik v. Tamura, 359 P.2d 164, 165-166 (Haw. 1960).
II. Filing Deadlines for Medical Malpractice Claims
Introduction to Statute of Limitations
Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.
These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.
A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.
Statute of Limitations for Medical Malpractice Claims in Hawaii
In general, medical malpractice claims in Hawaii are subject to a two-year statute of limitations contained in the Hawaii Revised Statutes (HRS) § 657-7.3(a), which states that medical malpractice actions must be brought no “more than two years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury….”
The critical question that must be addressed in any statute of limitations inquiry is the meaning of the term ‘injury.’ It could refer to at least three different events and corresponding dates: (1) when the alleged neglect act or omission occurred, (2) when the harm was first discovered by the plaintiff, (3) or when all the elements for a viable medical malpractice claim exist. The answer to this question is extremely important because it determines when the statute of limitations begins to run on a plaintiff’s claim and consequently on what date he or she is time-barred from bringing an action.
The Hawaii Supreme Court answered this question in Hays v. City and County of Honolulu, 917 P.2d 718, 723 (Haw. 1996), by announcing that the limitations period begins to run when the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, (1) the damage, (2) the breach of duty, and (3) the causal connection between the breach of duty and the damage. Notice that discovery of the harm or damage sustained by the plaintiff is insufficient by itself to trigger the running of the two-year limitations period. Knowledge of the harm or damage must be coupled with knowledge that it was the likely result of someone else’s negligence.
Therefore, under Hawaii medical malpractice law, a plaintiff must file a lawsuit within two years of discovering or when he or she is deemed to have discovered the damage, breach of duty, and a causal connection between the two.
It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under Hawaii law in calculating the exact date the applicable limitations period ends. Rule 6(a) of the District Court Rules of Civil Procedure sets forth how time is calculated. It states:
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in this rule, “holiday” includes any day designated as such pursuant to section 8-1 of the Hawai‘i Revised Statutes.
The Discovery Rule
Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.
The Discovery Rule in Hawaii
Hawaii recognizes the Discovery Rule in medical malpractice cases. In fact, it is incorporated into the standard two-year statute of limitation itself. HRS § 657-7.3(a) states that “[n]o action for injury or death against” an enumerated category of healthcare provider “shall be brought more than two years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury….” The standard statute of limitations is actually one and the same as the Discovery Rule.
The Hawaii Supreme Court first adopted the Discovery Rule in the 1967 case Yoshizaki v. Hilo Hospital, 433 P.2d 220 (Haw. 1967). Hays, 917 P.2d at 720. Yoshizaki involved a medical malpractice claim, and in the case, the Supreme Court ruled that “a cause of action does not ‘accrue,’ and the limitations period therefore does not begin to run, until the plaintiff knew or should have known of the defendant’s negligence.” Id.
In Yoshizaki, the Hawaii Supreme Court explained its rationale for adopting the Discovery Rule:
We conclude that the statute does not begin to run until the plaintiff knew or should have known of the defendant’s negligence. This conclusion is consistent with the legislative prescription to avoid constructions which would lead to absurd results. The injustice of barring the plaintiff’s action before [he or] she could reasonably have been aware that [he or] she had a claim is patent. A basic reason underlying statutes of limitation is nonexistent; the plaintiff has not delayed voluntarily in asserting [his or] her claim. Yoshizaki, 433 P.2d at 223-224.
Minors are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims. HRS § 657-7.3(b) governs medical malpractice actions involving minors. It provides that actions brought “by a minor shall be commenced within six years from the date of the alleged wrongful act….” Accordingly, the standard limitations period for minors is six years from the date of the alleged negligence.
There is a special rule for minors who are younger than ten years of age. It requires that a medical malpractice action must be brought within six years of the date of the alleged negligence or “by the minor’s tenth birthday, whichever provides a longer period.” HRS § 657-7.3(b).
In addition, the statute of limitations for minors is tolled “for any period during which the parent, guardian, insurer, or health care provider has committed fraud or gross negligence, or has been a party to a collusion in the failure to bring action on behalf of the injured minor for a medical tort.” HRS § 657-7.3(b).
Finally, the statute of limitations for minors is tolled “for any period during which the minor’s injury or illness alleged to have arisen, in whole or in part, from the alleged wrongful act or omission could not have been discovered through the use of reasonable diligence.” HRS § 657-7.3(b).
The applicable statute of limitations governing medical malpractice claims is tolled if the “person entitled to bring any action … is, at the time the cause of action accrued,” insane. HRS § 657-13(2). The term ‘insane’ is not defined by statute, so the Hawaii Supreme Court provided some guidance as to its meaning. In Buck v. Miles, 971 P.2d 717, 725 (Haw. 1999), the Supreme Court observed:
[J]urisdictions examining the meaning of insanity in the context of tolling the statute of limitations have liberally defined the term as: (1) the inability to understand one’s legal rights or manage one’s affairs; (2) the inability to understand the nature or effect of one’s acts, or (3) the inability to carry out one’s business and prosecute the claim. [internal citations omitted]
Once the disability of insanity is removed, the person entitled to bring the medical malpractice action must do so in accordance with the standard limitations period otherwise governing medical malpractice claims contained in HRS § 657-7.3.
The application of Hawaii’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Hawaii medical malpractice attorney. This is especially true when the statute of repose is also implicated (see next Section of this article). In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Hawaii attorney who specializes in medical malpractice law at the earliest possible opportunity.
III. Statute of Repose—Absolute Bar to Recovery
Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.
Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.
In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.
Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.
While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.
Statute of Repose in Hawaii
Hawaii has a six-year statute of repose that runs from the date of the alleged negligence. HRS § 657-7.3(a). Notice that the triggering event is the alleged negligent act or omission. In contrast to the statute of limitations which begins to run when the plaintiff is aware of the damage, someone else’s negligence, and a causal connection between the two, the statute of repose begins to run immediately upon the occurrence of the alleged negligence and can expire even before the potential plaintiff is aware that he or she may have a medical malpractice claim.
IV. Immunities and Limitations on Liability
Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.
Sovereign Immunity in Hawaii
To the extent provided for in the State Tort Liability Act, Hawaii waives sovereign immunity for the torts (medical malpractice claim is a form of tort) “of its employees and shall be liable in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” HRS § 662-2. Accordingly, state-owned medical facilities and their employees can be sued on medical malpractice claims.
Medical malpractice claims against a state defendant are subject to the statute of limitations applicable to medical malpractice claims in general contained in HRS § 657-7.3 (see Section II of this article for discussion of the statute of limitations). HRS § 662-4. Similarly, requirements for the complaint when filing suit against the state or its employees are the same as those when bringing a claim against a private party. HRS § 662-6(a). The sole difference is that when suing the state or its employees a “certified copy of all pleadings shall be duly served on the attorney general.” Id. Other than that, there are no special procedures or requirements for when the state or its employees are sued for medical malpractice.
Good Samaritan Law
The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).
In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.
Good Samaritan Law in Hawaii
Hawaii has enacted a general Good Samaritan law that is codified in HRS § 663-1.5(a). The statute provides immunity for individuals who voluntarily and without the expectation of compensation render emergency care at the scene of an accident. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration, at the scene of an accident or emergency to a victim of the accident or emergency shall not be liable for any civil damages resulting from the person’s acts or omissions….” Id. For purposes of the statute, the term ‘good faith’ “includes but is not limited to a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed.” HRS § 663-1.5(h).
The immunity granted by Hawaii’s Good Samaritan law does apply if the damages resulted from the Good Samarian’s “gross negligence or wanton acts or omissions.” Id. Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to gross negligence or wanton acts or omissions.
Licensed physicians and physician assistants who render emergency medical care in a hospital are also shielded from civil liability as along as certain specified conditions are met. HRS § 663-1.5(c). The statute states:
Any physician or physician assistant licensed to practice under the laws of this State or any other state who in good faith renders emergency medical care in a hospital to a person, who is in immediate danger of loss of life, without remuneration or expectation of remuneration, shall not be liable for any civil damages, if the physician or physician assistant exercises that standard of care expected of similar physicians or physician assistants under similar circumstances.
Additional Immunities and Limitations on Liability
There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout Hawaii Revised Statutes. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 35—Civil Remedies and Defenses and Special Proceedings—of the Hawaii Revised Statutes.
V. Presuit Requirements for Medical Malpractice Claims
Any person who wants to initiate a medical malpractice claim in court must first submit an inquiry to a Medical Inquiry and Conciliation Panel before a suit may be commenced in court. The Hawaii Supreme Court explained that “[i]t is well-established that the [Panel] requirement of HRS chapter 671 is a precondition to suit—although determinations of the panel have no preclusive effect on the subsequent litigation.” Yamane v. Pohlson, 137 P.3d 980, 989 (Haw. 2006).
The statute reads, in pertinent part, as follows: “Any person … having concerns regarding the existence of a medical tort shall submit an inquiry to the medical inquiry and conciliation panel before a suit based on the circumstance of the inquire may be commenced in any court of this State.” Id.
The inquiry must be submitted in writing and “shall include the facts upon which the inquiry is based and the names of all parties against whom the inquiry is or may be made who are then known” to the plaintiff. Id. It must be accompanied by a Certificate of Consultation, which declares the person initiating the inquiry has consulted with at least one licensed doctor “who is knowledgeable or experienced in the same medical specialty as the” potential defendants “and that the party or the party’s attorney has concluded on the basis of the consultation that there is a reasonable and meritorious cause for filing the inquiry.” HRS § 671-12.5(a)(1).
The Hawaii Supreme Court noted that Medical Inquiry and Conciliation Panels “undoubtedly were established to encourage early settlement of claims and to weed out unmeritorious claims.” [internal quotation marks omitted] Tobosa v. Owens, 741 P.2d 1280, 1285 (Haw. 1987). Towards that end, Panels “may encourage the parties to settle or otherwise dispose of the inquiry voluntarily.” HRS § 671-13(e). The statute also provides:
At panel proceedings and to assist its conciliation role, the panel may consider, but not be limited to, statements or testimony of witnesses, hospital and medical records, nurses’ notes, x-rays, and other records kept in the usual course of the practice of the health care provider without the necessity for other identification or authentication, statement of fact, or opinion on a subject contained in a published treatise, periodical, book, or pamphlet, or statements of experts without the necessity of the experts appearing at the proceeding. HRS § 671-13(f).
If the parties cannot reach a settlement during the Panel proceedings, then the person who initiated the inquiry may commence an action in court. HRS § 671-16(a). But statements made during the Panel proceedings are not admissible in evidence “either as an admission, to impeach the credibility of a witness, or for any other purpose in any” subsequent trial. HRS § 671-16(b). Additionally, the results of Panel proceedings are limited as follows:
No decision, conclusion, finding, statement, or recommendation of the medical inquiry and conciliation panel on the issue of liability or on the issue of damages shall be admitted into evidence in any subsequent trial, nor shall any party to the medical inquiry and conciliation panel proceeding, or the counsel or other representative of a party, refer or comment thereon in an opening statement, an argument, or at any other time, to the court or jury…. Id.
The applicable statute of limitations governing the medical malpractice claim is tolled during the proceedings and for a period of sixty days following the termination of the Panel. HRS § 671-18. The statute states: “The filing of the inquiry with the medical inquiry and conciliation panel … shall toll any applicable statute of limitations, and the statute shall remain tolled until sixty days after the termination of the panel….” Id. However, the filing of an inquiry will toll the statute of limitations for a maximum of 12 months. Id. “If the panel proceedings are not completed within twelve months … the statute of limitations shall resume running and the party filing the inquiry may commence a suit” immediately in any appropriate court. Id.
VI. Required Elements of a Medical Malpractice Complaint
In Hawaii, there is only one recognized form of action, and it is known as a “civil action.” Rule 2 of the District Court Rules of Civil Procedure. A medical malpractice action is commenced by filing a complaint. Rule 3(a). Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 7(a).
Rule 8(a) requires that a complaint “shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader deems the pleader entitled. Relief in the alternative or of several different types may be demanded.”
Under Rule 8(e)(1), “[e]ach averment [i.e., allegation] of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” The complaint may “set forth two or more statements of a claim … alternatively.” Rule 8(e)(2). In addition, the complaint may contain as many separate claims as the plaintiff has “regardless of consistency.” Id. All complaints “shall be so construed as to do substantial justice.” Rule 8(f).
The complaint must contain a caption “setting forth the name of the court, the title of the action, the file number, the nature of the suit, and a designation as” a complaint. Rule 10(a). For a complaint, “the title of the action shall include the names of all the parties….” Id. All allegations of claim “shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….” Rule 10(b). In addition, each claim that is based upon a separate transaction or occurrence “shall be stated in a separate count … whenever a separation facilitates the clear presentation of the matters set forth.” Id.
The complaint “shall be signed by at least one attorney of record in that attorney’s individual name, whose address shall be stated.” Rule 11. A plaintiff “who is not represented by an attorney shall sign the party’s” complaint and must include his or her address. Id.
Hawaii is a notice pleading state. In re Genesys Data Technologies, Incorporated v. Genesys Pacific Technologies, Incorporated, 18 P.3d 895, 903 (Haw. 2001). The Hawaii Supreme Court explained the state’s notice pleading requirement as follows:
Hawaii’s rules of notice pleading require that a complaint set forth a short and plain statement of the claim that provides defendant with fair notice of what the plaintiff’s claim is and the grounds upon which the claim rests. Pleadings must be construed liberally. General allegations of damages to be proven at trial are permissible and, in some instances, ad damnum clauses specifying the amount of damages are prohibited. [internal citations omitted] Id.
The Intermediate Court of Appeals observed that under the state’s notice pleading system it is not necessary for plaintiffs to plead legal theories with precision in a complaint. Adams v. Dole Food Co., Inc., 323 P.3d 122, 132 (Haw. Ct. App. 2014). The Court further explained that the Hawaii Supreme Court rejected “the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and in turn accepted the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Id. at 133 (quoting Hall v. Kim, 491 P.2d 541, 545 (Haw. 1971)).
Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.
The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.
VII. Expert Medical Witnesses
The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.
Who Qualifies as An Expert Medical Witness
The starting point in the determination of whether a prospective expert medical witness is qualified to provide expert testimony in a medical malpractice case is Rule 702 of the Hawaii Rules of Evidence. It provides that a witness may be deemed qualified to provide expert opinion testimony “by knowledge, skill, experience, training, or education….”
According to the Hawaii Supreme Court, the trial court has wide discretion in making its determination of whether a prospective expert qualifies as an expert on a particular issue. Larsen v. State Savings and Loan Association, 640 P.2d 286, 288 (Haw. 1982). The Supreme Court stated that the “question of whether a witness qualifies as an expert is a matter addressed to the sound discretion of the trial court, and such determination will not be overturned unless there is a clear abuse of discretion.” Id.
With respect to the analysis of whether a prospective expert is qualified to provide expert medical witness testimony, the Hawaii courts follow the below guidance:
It is not necessary that the expert witness have the highest possible qualifications to testify about a particular matter, but the expert witness must have such skill, knowledge, or experience in the field in question as to make it appear that his or [her] opinion or inference-drawing would probably aid the trier of fact in arriving at the truth. Once the basic requisite qualifications are established, the extent of an expert’s knowledge of the subject matter goes to the weight rather than the admissibility of the testimony. Ditto v. McCurdy, 947 P.2d 961, 975 (Haw. Ct. App. 1997) (quoting Lai v. St. Peter, 869 P.2d 1352, 1360 (Haw. Ct. App. 1994)).
Once experts have been qualified to provide opinion testimony on a specific issue or issues by the trial court, “[i]t is settled in Hawaii that questions concerning the credibility of witnesses and the weight of the evidence are for the jury alone to decide.” Cafarella v. Char. 615 P.2d 763, 766 (Haw. Ct. App. 1980).
Admissibility of Expert Testimony
Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.
Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Admissibility of Expert Testimony in Hawaii
Once again, the starting point in determining the admissibility of expert testimony in a medical malpractice case is Rule 702 of the Hawaii Rules of Evidence. It provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
In general, Hawaii law tends to favor the admission of expert medical witness testimony. The Intermediate Court of Appeals stated that “under Hawaii Rules of Evidence (HRE) Rule 702, we believe expert testimony should be liberally admitted at trial.” Ditto v. McCurdy, 947 P.2d 961, 975-976 (Haw. Ct. App. 1997).
The Hawaii Supreme Court has not expressly adopted either the Frye or Daubert standard to the exclusion of the other. Rather, the Court utilizes the test it articulated in State v. Kim, 645 P.2d 1330 (Haw. 1982). In Kim, the Court announced:
The critical inquiry with respect to expert testimony … is whether such testimony will assist the trier of fact to understand the evidence or determine a fact in issue…. Generally, in order to so assist the jury an expert must base his testimony upon a sound factual foundation; any inferences or opinions must be the product of an explicable and reliable system of analysis; and such opinions must add to the common understanding of the jury. [internal citations and quotation marks omitted] Id. at 1336.
The Hawaii Supreme Court explained that “the reliability prong of Kim could include the Frye test, but Kim is not necessarily limited to general acceptance in the scientific community. State v. Montalbo, 828 P.2d 1274, 1280 (Haw. 1992). Under the reliability prong of Kim, it is possible that a court could also consider the scientific procedure itself, as well as other evidence of the procedure’s reliability.” Id.
In Montalbo, the Supreme Court announced:
We therefore “adopt” the Frye test of general acceptance in the relevant scientific community under the reliability prong of the Kim analysis. We hold that a court should weigh general acceptance along with the other factors listed below in order to determine, under Hawaii Rules of Evidence (HRE) Rules 702 and 703, whether scientific evidence should be admitted at trial. These factors include whether:
- the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue;
- the evidence will add to the common understanding of the jury;
- the underlying theory is generally accepted as valid;
- the procedures used are generally accepted as reliable if performed properly;
- the procedures were applied and conducted properly in the present instance.
The court should then consider whether admitting such evidence will be more probative than prejudicial. Id. at 1281.
“In other words, expert testimony must be both relevant and reliable” for it to be admissible. State. Maelega, 907 P.2d 758, 767 (Haw. 1995).
VIII. Comparative Negligence
Modified Comparative Negligence with 51% Bar Rule
By statute, Hawaii uses modified comparative negligence with a 51% bar rule. HRS § 663-31. The statute provides that a plaintiff’s contributory negligence does not bar recovery, stating:
Contributory negligence shall not bar recovery in any action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.
Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than the defendant or defendants being sued by the plaintiff—the 51% bar rule. If the plaintiff’s percentage share of determined fault is greater than the total of all defendants (i.e., plaintiff’s contributory negligence is determined to be 51% or greater), then the plaintiff is not entitled to any recovery. The Hawaii Supreme Court explained the state’s comparative negligence statute as follows:
Under HRS § 663-31, contributory negligence is no longer a complete defense or total bar to a tort claim. The Legislature enacted a modified comparative negligence statute for our jurisdiction which bars recovery when the negligence of the plaintiff is greater than the defendants or defendants, and reduces recovery against the defendant or defendants by the proportion of fault of the negligent plaintiff. In essence, the “unfairness” of the common law doctrine of contributory negligence has been tempered in an effort to enhance the notion of fairness and justice. Mist v. Westin Hotels, Inc., 738 P.2d 85, 90 (Haw. 1987).
Under contributory negligence (the doctrine that Hawaii followed prior to implementing the current doctrine of modified comparative negligence), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury. Contributory negligence is extremely unforgiven. If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages. It is for this reason that nearly every state has abandoned it. Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.
To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million. Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault). That is the result for under Hawaii’s current doctrine of modified comparative negligence. In contrast, under contributory negligence, the plaintiff recovers nothing. The plaintiff’s 10% allocation of fault serves as a complete bar to recovery. That is the stark difference between the two doctrines.
Comparative negligence is a fault and damages allocation system. Under Hawaii’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. HRS § 663-31(a). Fault is determined and apportioned among the plaintiff and all defendants by the trier of fact, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault. HRS § 663-31(b). Subsection (b) provides that:
In any action to which subsection (a) of this section applies, the court, in a nonjury trial, shall make findings of fact or, in a jury trial, the jury shall return a special verdict which shall state:
(1) The amount of the damages which would have been recoverable if there had been no contributory negligence; and
(2) The degree of negligence of each party, expressed as a percentage.
Under Hawaii law, the trial court is authorized to “instruct the jury regarding the law of comparative negligence where appropriate.” HRS § 663-31(d).
HRS § 663-31(c) states that after total damage award and degree of negligence of each party have been decided “the court shall reduce the amount of the award in proportion to the amount of negligence attributable to the” the injured party. However, if the injured party’s determined degree of negligence is greater than the defendant’s or the aggregate degree of negligence in the case of multiple defendants, “the court will enter a judgment for the defendant” or defendants, as the case may be. Id.
The foregoing language is the codification of the 51% bar rule, which holds that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages. For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award. If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Hawaii imposes the 51% bar rule.
Apportionment of Fault with Multiple Defendants
When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.
On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.
By the express terms of Hawaii’s comparative negligence statute, the combined comparison approach is utilized in the state. HRS § 663-31(c) states that if the injured party’s share of negligence “is greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, the court will enter a judgment for the defendant.” The statute’s language clearly contemplates comparing the injured party’s share of fault with the aggregate determined fault of all defendants, which is the very definition of the combined comparison approach.
IX. Limitation on Noneconomic Damages
Hawaii law imposes limits on the amount of damages that can be recovered in a medical malpractice action for pain and suffering. HRS § 663-8.7. The statute limits recovery to $375,000. The limit does not apply to intentional torts. HRS § 663-10.9(2)(A). Nor does the limit apply to economic damages, which are uncapped.
For purposes of the statute, the term ‘pain and suffering’ is defined as “one type of noneconomic damage and means the actual physical pain and suffering that is the proximate result of a physical injury sustained by a person.” HRS § 663-8.5(b). The Hawaii Supreme Court explained that damages for pain and suffering are a form of general damages, which are defined as damages that naturally and necessarily result from a legal wrong but cannot be measured with certainty in monetary terms. Bynum v. Magno, 101 P.3d 1149, 1153 (Haw. 2004).
Economic damages, also referred to as special damages, are “the natural but not the necessary result of the alleged wrong, and are often considered to be synonymous with pecuniary loss and include such items as medical and hospital expenses, loss of earning, and diminished capacity.” [internal citations and quotation marks omitted] Id. at 1153-1154.
X. Limitations on Attorney Fees
Contingent Fee Arrangement
Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.
This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.
It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.
Limitations on Attorney Fees in Hawaii
Hawaii law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, there are a couple of important limitations on fees designed to protect clients of which plaintiffs with a medical malpractice claim should be aware.
The first is HRS § 607-15.5, which provides that attorney fees in all tort actions (this includes medical malpractice cases) are limited to a reasonable amount approved by the court. The statute states:
In all tort actions in which a judgment is entered by a court of competent jurisdiction, attorneys’ fees for both the plaintiff and the defendant shall be limited to a reasonable amount as approved by the court having jurisdiction of the action. In any tort action in which a settlement is effected, the plaintiff or the defendant may request that the amount of their respective attorneys’ fees be subject to approval of the court having jurisdiction of the action.
In addition, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Hawaii under Rule 1.5 of the Hawaii Rules of Professional Conduct. Rule 1.5(a) states:
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent, and in contingency fee cases the risk of no recovery and the conscionability of the fee in light of the net recovery to the client.
It is important to note that the Comments to Rule 1.5 state that the eight factors enumerated in the Rule are not exclusive and that each factor will not be applicable in every case.
Rule 1.5(b) requires lawyers to communicate to clients, preferably in writing, the “scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible….” This must be communicated to clients “before or within a reasonable time after commencing the representation….”
Contingent fee arrangements are expressly permitted by Rule 1.5(c), subject to the requirements described therein. A contingent fee arrangement must be in writing and signed by the client, and it must “state the method by which the fee is to be determined, including the percentage or percentage that shall accrue to the lawyer in the event of settlement, trial, or appeal.” Id. It must also explain what “litigation and other expenses [are] to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.” Id. The agreement “clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.” Id. Finally, at the end of the case, “the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Id.
XI. Apologies and Gestures of Sympathy
Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.
Hawaii is among the states that have enacted an “I’m Sorry” law. It is contained in HRE Rule 409.5 but is not specific or limited to healthcare practitioners. Rather, it generally shields anyone who communicates expressions of sympathy and condolence, including healthcare providers, by making them inadmissible as evidence of liability. HRE Rule 409.5 reads as follows:
Evidence of statements or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule.
It is important to note that expressions or admissions of liability of fault are not covered by the statute and are thus admissible as evidence in a medical malpractice action against the healthcare provider.
Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Hawaii understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.
XII. Website Disclaimer
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 In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/
 The statute uses the terms ‘contributory negligence’ and ‘comparative negligence’ in discussing the issue. Accordingly, where appropriate, both terms are similarly used in this article.