Medical Malpractice in Hawaii

When people seek care from medical professionals, they expect to get better, not worse. Most medical professionals meet or even exceed the standard of care when treating patients. However, some doctors do not provide the necessary care. These doctors might make a medical mistake or fail to get informed consent from the patient before providing medical treatment. These dangerous medical errors can put the patient’s life at risk and can lead to life-changing injuries.

Victims of medical negligence can file a claim for malpractice. Hawaii’s malpractice laws are among the most complex in the country. Patients must make sure they have grounds to file a malpractice suit against a health care provider and facility. Then, they must meet all filing deadlines and go through the process correctly to file a claim.

Examples of Medical Malpractice

Medical malpractice suits can be brought against licensed health care providers and facilities. To bring suit, the patient must prove that he or she sustained an injury due to professional negligence. Professional negligence is defined as errors, omissions, and a lack of informed consent. Look at some examples of malpractice.

Misdiagnosis or Failure to Diagnosis

Patients trust that doctors will properly diagnose their injuries and illnesses. Doctors have ample diagnostic tools, including MRIs and PET scans, but sometimes, providers fail to order the proper tests. This can lead to a misdiagnosis or a failure to diagnose the issue. Unfortunately, the longer a patient goes without the proper diagnosis, the longer he or she also goes without the necessary treatment. Diseases and conditions can get worse when treatment is delayed. Once patients finally receive the correct diagnosis, they might have to undergo invasive procedures or painful treatments that would have been unnecessary if the treatment was provided initially. Many people even lose their lives due to diagnostic delays. Medical malpractice laws allow people to sue providers who fail to diagnose conditions accurately. If the victim passes away due to the error, family members can sue on behalf of their loved one.

Medication Mistakes

Medication errors can be life-threatening. These errors include prescribing medications that interact with others that the patient is already taking and giving the wrong dose of the medication. Patients also might receive the wrong medication in an IV while receiving medical care at the hospital. Medication errors can involve lots of providers, including doctors, nurses, and pharmacists, along with the facilities that employ these professionals. An attorney can determine the number of professionals and facilities that contributed to the malpractice.

Surgical Errors

Patients assume some risk when they undergo surgery. The surgeon should inform patients of the potential risks and get their consent before moving forward. While some risk is possible, the risk is increased when surgeons and other medical professionals do not follow the proper duty of care. Common surgical errors include nerve damage and puncturing organs. Surgeons also might operate on the wrong body part. Post-op complications can also occur. For example, failing to provide proper care could lead to a dangerous infection. Post-op infections can lead to a loss of function. Amputations are also possible due to infections, and sometimes, these infections are fatal. People who suffer at the hands of a surgeon could end up with medical issues for the rest of their lives, so proper compensation is necessary. Those who file a successful malpractice claim can receive money to pay for future medical care as well as lost wages and other damages.

Birth Injuries

Birth injuries are devastating for families. These injuries can occur to the mother, child, or both, and often, victims suffer a lifetime of pain or the loss of life. Injuries include c-section errors, brain injuries, Cerebral Palsy, and more. Filing a malpractice suit is critical for these types of injuries as they often require lifetime care. The damages paid can help make the child and mother whole again after suffering from such devastating injuries.

Lack of Consent

Patients are legally required to give informed consent before undergoing procedures. Patients could sue for malpractice if they did not consent to a procedure, even if the procedure was performed properly. In these cases, the patient must prove that the procedure had risks that the provider failed to disclose. The patient must also state that he or she would not have consented to such a procedure if informed of the risks.

Patients must also give their consent if the provider changes the course of treatment after receiving the initial consent. Failure to receive consent for each procedure and treatment is a form of malpractice.

Patients waive their rights to informed consent in certain situations. If a patient has a mental health problem, he or she might not be able to consent to a procedure. Also, if a patient requires trauma care, the provider might be unable to get consent.

Medical Malpractice Statute of Limitations

The statute of limitations refers to the time limit imposed for malpractice cases. If people file after the time limit has run out, the court will not hear the case. Hawaii uses the discovery rule for the statute. Adults have a full two years to file a claim after discovering the injury. However, they only have six years in total. If someone discovers an injury five years after the malpractice occurred, he or she only has one year to file a claim, or the limit will run out.

The discovery rule has not always been in place in the state. The state had a strict time limit for filing malpractice claims until the case of Yoshizaki v. Hilo Hospital in 1967. The Hawaii Supreme Court in Honolulu determined that a cause of action does not accrue until the plaintiff should have been aware of the negligence. Since then, plaintiffs have benefited from the state’s discovery rule.

Those who think they have missed the filing deadline should still consult with an attorney. An experienced attorney can examine the case to see if it is possible to move forward.

Statute for Minors

The statute is different for minors. Children under the age of 10 must file the claim within six years or by their tenth birthdays. The statute is the longer of the two. That means if a minor is eight when the malpractice occurs, he or she will have to file within six years. If the minor were only two years old when the malpractice occurred, he or she would have to make a claim by the tenth birthday.

Minors aged 10 and over have a full six years to file the claim. The clock starts ticking as soon as the incident occurs, not when the injury is discovered.

Statute for Legal Insanity

The statute of limitations is also different for those who are deemed legally insane. For legal purposes, insanity is defined as the inability to:

• Manage one’s affairs or understand one’s legal rights.
• Understand the effects of one’s actions.
• Prosecute a claim or carry out other personal business.

Only one of these three stipulations must be met. The clock does not start ticking until the person is no longer legally insane. Once the disability is no longer there, the standard time limit will be in place.

Proving Medical Malpractice

Medical negligence is a contributing factor to medical malpractice. However, negligence alone does not prove malpractice. Malpractice claims must meet four criteria to be heard in court.
1. Duty
First, the provider must have a duty to provide a standard of care to a patient. Providers have a duty when they enter into a doctor-patient relationship with the person. The standard is defined as the level of care that a competent provider in the same field would provide to the patient. Once doctors and patients enter a relationship, the provider must offer at least that level of care.
2. Breach
The patient must also prove that the provider failed to provide that level of care. This is referred to as a breach of duty. For example, anesthesiologists monitor vital signs when patients are in surgery. Failure to monitor vital signs is an obvious breach.
3. Causation
Next, the patient must prove that the breach of duty directly resulted in the injury. This can be proven, even if the patient is partially responsible for the injury.
4. Damages
The patient must also prove damages in a malpractice case. Damages do not have to be financial. For example, while damages could be lost wages and medical bills, that is not necessary to move forward with a case. The claimant can also suffer non-economic damages and file suit. While these damages are more difficult to prove, a seasoned attorney can conduct the research and provide the necessary evidence.

What If a Case Does Not Meet All Four Criteria?

If a case does not meet all four criteria, it will likely be dismissed in court. However, it is not up to the claimant to prove all four components of a case. An attorney can do that on behalf of the client. After the investigation, the attorney will let the claimant know if the case meets the criteria necessary to move forward in court. People are encouraged to consult with an attorney after experiencing an injury, even if they are unsure if it meets the criteria. These cases are incredibly complicated, and an attorney can look at the evidence and determine.

Modified Comparative Fault

In some cases, the victim of malpractice is partially responsible for his or her injuries. For example, assume that a doctor prescribes a medication and included instructions about avoiding certain medicines while taking that medication. The patient had previously disclosed an allergy to the newly prescribed medication, but the doctor did not read the file, so he or she prescribed it. The patient goes home and takes the new medication along with the medicine the doctor said to avoid. The patient gets quite ill. The patient takes the doctor to court, where it is determined that both share the blame. The court assigns 50 percent of the blame to each party.

The patient would still be able to recover damages due to the state’s modified comparative fault law. The Hawaii law uses a 51 percent bar for medical malpractice claims. That means that as long as the patient is no more than 50 percent at fault, he or she can collect damages.

However, the  amount of damages the patient collects would be reduced due to his or her actions. If the court awarded the patient $100,000, he or she would only collect $50,000 because the damages would be reduced by 50 percent.

Good Samaritan Law

The Good Samaritan Law was enacted in the state to protect people who voluntarily provide emergency aid. The law is for those who do so without expecting compensation for their services. Those who do so are not liable for medical malpractice. For example, if a doctor is at the grocery store and someone passes out, he or she can render aid without worrying about getting sued for malpractice. However, there is an exception to this law. Those who exhibit gross negligence when administering care can still be sued for malpractice.

This law also protects health care providers who render emergency aid in a hospital, as long as that person is in immediate danger of dying, and the provider does not expect of being compensated. However, unlike administering care in public, the provider must follow the expected level of care in an emergency room setting.

Immunity for Volunteers

The state also grants immunity for volunteers at a hospital, nonprofit, or governmental entity, as long as they were acting in good faith. There are stipulations, however. Those who have been injured due to the negligence of a volunteer should still consult with a medical malpractice lawyer. It is possible that the volunteer could be held accountable if all the stipulations are not met.

Damages and Damage Caps

Victims of medical malpractice might be eligible for compensatory and punitive damages. Some of these damages are capped while others are not. Victims should understand the damage caps before moving forward with a claim. This will give them a better idea of what to expect when settling or litigating a claim.

Compensatory Damages

Compensatory damages are awarded to compensate people for the injuries they suffered at the hands of a medical provider. Compensatory damages can be economic or non-economic. People can be eligible for both.

Economic damages are easy to define. These damages are the result of the money lost due to personal injury. Medical costs and lost wages are examples of economic damages. A malpractice attorney can also file for damages for future medical costs and future lost wages. There is no cap for economic damages. Patients can be awarded all of the money they have lost or will lose due to the injury, even if it is millions of dollars. Proper documentation and evidence are needed to ensure that claimants receive compensation for all the money they have paid out of their pockets, as well as the money they will spend in the future due to their injuries.

Non-economic damages are not as easy to define. These damages are subjective and refer to issues like pain and suffering, loss of enjoyment of life, and loss of consortium. Non-economic damages are capped at $375,000. Regardless of the degree of the injury, patients cannot receive more than $375,000 for non-economic damages.

Punitive Damages

Punitive damages are awarded when the provider has exhibited malicious, wanton, or oppressive conduct when harming the patient during a medical procedure. These damages are awarded in the most serious of cases as a way to punish the provider. Punitive damages also send a message to other providers. The message acts as a deterrent so that providers will not conduct themselves in the same way. The state does not have a cap for punitive damages. However, the appellate court will conduct a review when punitive damages are awarded to ensure the amount is not excessive in relation to the evidence. The court can reduce the award if it is deemed excessive.

Establishing Fault for Multiple Defendants

Most states use the law of joint and several liabilities when determining the damages owed when multiple defendants are sued. The policy generally requires that each defendant pays the full amount owed to the plaintiff. That way, if one or more of the defendants does not have adequate funds to pay the judgment, the plaintiff is still fully compensated. This occurs, even when each provider has a policy with an insurance company. Some providers do not carry enough insurance, so they do not have enough money to pay the claim.

Hawaii uses a modified version of this policy. For economic losses, it uses the standard policy for joint and several liabilities. For non-economic damages, it uses the modified version. If a defendant is less than 25 percent negligent, he or she will have to pay damages based on the degree of fault. The non-economic damages are reduced based on fault as long as the defendant’s fault is below the 25 percent threshold. Otherwise, the defendant can be held fully liable for the damages.

“I’m Sorry” Law

Hawaii is one of 42 states to have a version of an “I’m Sorry” law. Medical providers can apologize or send condolences to injured patients without worrying about the gesture being introduced as evidence. However, if the provider admits guilt, that information can be used as evidence. The injured patient should send any communications from the doctor to his or her attorney to find out if it is an admission of guilt.

Sovereign Immunity and Medical Malpractice

Sovereign immunity is a legal doctrine that protects the government from legal actions. Some state governments are protected from malpractice claims due to sovereign immunity, but that is not the case in this state. Government employees can be held liable for malpractice. However, government employees are not liable for punitive damages or interest before the judgment.

There is one difference between suing a government employee and someone in private practice. When suing a government employee, the malpractice attorney must serve a copy of the pleadings to the attorney general. Then the case can move forward.

Limits on Attorney Fees for Medical Malpractice Cases

Like many other states, Hawaii has a limit for attorney fees in medical malpractice cases. However, the limits are not set at a percentage or amount. Instead, the court sets the limits on a case by case basis. The court imposes a limit for both the plaintiff and defense attorneys in these cases. Attorneys cannot collect more than the limits the court has imposed.

To determine a reasonable fee, the court looks at various factors. First, it analyzes the time and labor that was necessary to file the claim and argue the case. It also considers the degree of skill necessary to complete the case.

The court also determines if, by accepting this case, the lawyer was able to work on other cases at the same time. Often, attorneys can only work on a single malpractice case at a time due to the amount of work these cases require.

When setting a cap, the court also looks at the fees charged for similar services. Lawyers cannot make considerably more than other lawyers receive for the same services.

The court also examines time limitations, the length of the relationship with the client, and the results obtained. Also, the court examines the reputation and skill level of the lawyers and the fee schedule. With contingency fees, lawyers run the risk of not getting paid. This is taken into consideration when capping the fees.

After considering all of these factors, the court makes its determination. If the court determines that the lawyer charged too much for the services, the fee will be reduced. This law gives plaintiffs confidence when making malpractice claims. They know they will not have to overpay for services when filing and litigating these claims.

Expert Testimony for Hawaii Medical Malpractice Claims

Many states require claimants to submit an affidavit from a medical expert. The affidavit validates the claim. The state of Hawaii requires a certificate of merit and expert testimony. Claimants must have an expert witness to substantiate the claim at the trial. During the trial, the expert witness will begin by establishing the basic level of care. The witness will explain how the provider breached the standard and highlight how that caused the injury. Expert testimony explains how the patient would not have suffered the same injuries had he or she gone to a different provider.

To be considered an expert, the witness must meet certain criteria. First, he or she must be licensed to practice medicine. The license can be for any state in the United States. The witness also must have experience or knowledge in the field that the alleged malpractice occurred.

Expert testimony is required in most cases. There is an exception. When the malpractice occurred during a routine situation that a layperson would understand, an expert is not required. However, many attorneys still use experts to substantiate claims and strengthen cases. They seek experts who have experience in the practice areas of the defendant to back the claim. This makes it easier for the jury to understand that the provider caused the injuries.

Admissibility of Expert Testimony

The court has the final say when allowing expert testimony. Courts have a standard in place to prevent junk science from littering the courtrooms. For an expert to testify, he or she must offer reliable testimony that is rooted in facts. It has to be reliable and include relevant information. While this prevents some so-called experts from taking the stand, the Aloha State takes a liberal stance when allowing expert witnesses. Most witnesses are allowed to testify as long as they meet the general criteria set forth by the courts.

Filing an Inquiry With the Medical Inquiry and Conciliation Panel (MICP)

Victims of medical malpractice cannot file a claim until they submit an inquiry with the MICP. A malpractice attorney will help with this process. The claimant must either submit a formal letter or fill out the MICP Inquiry Form.

The letter or form needs to include information about the alleged malpractice. That includes the date and location that the malpractice occurred and the facility and providers who are responsible. The claimant must also include information about the omission or negligent act that occurred.

The claimant must also include a certificate of merit with the claim. A licensed medical expert must review the claim and create the certificate of merit to validate the claim. The certificate states that there is merit in the malpractice case. There is one exception to this rule. If the claim is being filed due to a lack of informed consent, a certificate is not needed. The case can still go forward.

After the MICP receives the inquiry, it will set a hearing date. Both parties attend the hearing and go over the evidence. During the hearing, the plaintiff will get a better understanding of the defense the facility and provider will use to defend the claim.

While the hearing is non-binding, many people choose to reach a settlement after the process. Malpractice litigation can be time-consuming, so many prefer to settle instead of going to court. Any settlement reached during this process is voluntary.

Those who do not reach a settlement have the option of moving forward by going to trial. However, any information shared or evidence entered during the MICP proceedings is not admissible in trial. That includes the panel’s findings.

Filing a Medical Malpractice Claim

While most malpractice claims are settled out of court, going to trial is a viable option for those who have strong cases and are unable to reach a settlement. The medical malpractice attorney will prepare a Complaint. The attorney will serve the defendant with the Complaint.

The defendant must respond to the Complaint by filing an Answer within 20 days of receiving the summons. This document includes a response to the allegations. It also includes the affirmative defenses the defendant will use to defend the case. Affirmative defenses are facts used to defend the case. The litigating attorney will receive the Answer once it is filed.

Discovery Process

After the Complaint is answered, the attorneys will begin preparing for litigation. This is referred to as the discovery process, and it is critical to having a successful outcome during the trial. The opposing parties disclose the information they have regarding the case. The attorneys for both sides also collect additional information to prepare for litigation.

Attorneys from both sides will conduct depositions during the discovery process. Witnesses are put under oath and then asked questions related to the case. While a trial occurs in a courtroom, depositions usually take place in the attorneys’ offices. Both sides are present during the deposition, along with a court reporter and the witness.

The claimant’s attorney can object to questions during the deposition. Also, the attorney can offer legal counsel. It is critical to have an attorney present since the opposing counsel will try to get the plaintiff to admit fault or guilt. The attorney also might try to make it appear that the litigant is exaggerating the claim. The claimant’s attorney will protect his or her client during this process.

The discovery process also includes written interrogatories. Each attorney creates a list of questions to send to the other side. The questions and answers are used to establish the facts of the case before going to trial.

The attorneys can also request for production of documents during the discovery process. Medical records are the most common of the requests made, but attorneys can request other documents as well.

Finally, the attorneys can make a request for admission. Each attorney will draft statements and send them to the opposing side. The opposing side will respond to the statement with “yes” or “no.” An example could be, “The defense does not have evidence to support the claimant was at fault for the injuries.” If the opposing attorney responds with “no,” the plaintiffs’ attorney knows that the other side intends to blame the victim for the injuries. This helps the plaintiff’s attorney formulate the case.

Physical Examination

If the opposing side questions the plaintiff’s physical condition, the court might order that the litigant undergo a physical examination. This is only required if the court issues an order.

Pretrial Litigation

Medical malpractice claims must go through pretrial litigation before going to court. Most claims begin with a MICP inquiry. However, it is possible to bypass this in favor of arbitration or mediation. Both sides must agree to this. If they do, the claim will not be reviewed by the MICP panel.

Arbitration is governed by the Revised Uniform Arbitration Act. Both parties must enter into arbitration voluntarily. An arbitrator will be selected for the proceedings and then the date and time will be set. Both parties, along with legal counsel, will attend the arbitration hearing. The hearing will be much like going to court, with both sides presenting their cases. The arbitrator will determine fault and choose the damages.

Mediation is much less formal than arbitration is. A neutral third party will act as a mediator and will try to get the two sides to agree to a resolution. The two sides might begin the process in the same room. Then, they might go to separate rooms, with the mediator working between them. If an agreement cannot be reached, the case can go to trial.

Going to Trial

A malpractice attorney can try the case in the court system if a settlement is not reached. Most medical malpractice cases are tried in front of a jury. However, the defendant can waive his or her right to a jury trial and have the case tried in front of a judge instead. If the court agrees to this, the judge will listen to the evidence and determine the verdict.

In the case of a jury trial, the attorneys ask potential jurors questions. These questions are meant to find biases in the jurors. Those with biases are struck from the jury. Eventually, twelve jurors will be left. These jurors will listen to the case and determine the verdict.

Then, the case will be ready to move forward. The trial begins with opening statements. This allows each side to lay out the case. Both sides will give an overview of the evidence during the opening statements.

After the opening statements are finished, the plaintiff will have the chance to present his or her case. The attorney will use witnesses to support the evidence of the case. Expert witnesses are very important during this portion of the case. These witnesses help the jury members understand how the provider was negligent and why that negligence injured the patient.

The defense attorney can cross-examine each witness. During cross-examination, the defense will attempt to discredit the witness. The plaintiffs’ attorney will have prepared the witnesses for cross-examination.

Once the last witness is called, the plaintiff’s side will rest, and the defense will take over. The defense attorney will call witnesses, and the plaintiff’s attorney will cross-examine them. The defense will call as many witnesses as they want, and then they will rest their case.

Then, it is time for closing arguments. Closing arguments allow both sides to go over the facts of the case once again. The arguments are made to support the case they have presented to the court.

Then, it will be time for deliberation. The judge or jury will deliberate the facts of the case and reach a verdict. The verdict will be announced. If the claimant receives damages, the defendant will pay the attorney, who will then pay his or her client.

Appealing the Verdict

The losing party has the right to appeal the verdict. Appeals are granted if something illegal or unethical took place during the trial. Most appeals must be filed within 30 days of the judgment. If the appeal is granted, a higher court will review the facts of the case.

Choosing a Medical Malpractice Attorney

Some people make the mistake of attempting to handle malpractice cases on their own. They are quickly overwhelmed by the laws that govern malpractice in the state. Between meeting the burden of proof and filing all the necessary paperwork, they are unable to present their cases.

Instead of trying to handle a case by themselves, people should get a free consultation from a Hawaii medical malpractice lawyer. They will enter into an attorney-client relationship during this consultation. They can share specific and general information about the case with the attorney without fear of the lawyer talking about it to anyone else. The attorney will listen to the facts of the case and provide legal advice. Then, the attorney will determine if the victim should move forward with the claim. If so, the client can sign on with the malpractice law firm.

Along with the free consultation, most attorneys use a contingent fee arrangement. The attorney sets a percentage that he or she will be awarded once the client receives a judgment. This allows victims of medical malpractice to move forward with their cases, even if they do not have the money to pay an attorney upfront.

After the two parties enter into a relationship, the malpractice attorney will begin investigating the case. The attorney will act as an advocate on behalf of his or her client. He or she will interview experts, pour over medical records, and gather additional information to prove malpractice. This saves victims time and money and allows them to take the steps needed to receive compensation for their injuries.

Those who have been injured due to negligence are encouraged to contact an attorney immediately. The statute of limitations passes quickly, so fast action is required. With the help of an attorney, the claimant can get the money he or she deserves. While the money will not heal the injuries, it will help the claimant pay for medical care and live a higher quality of life.

Damage Caps in Hawaii

Noneconomic damages are limited to $375,000 at this time.

See Damage Caps by Each State