Hawaii Medical Malpractice Laws

Residents of Hawaii seek services from medical professionals to improve their health, but some do not get the results they need to get well. There are instances in which a healthcare provider only makes their patient’s condition worse or creates a new problem.

Such incidents may involve medical malpractice. In Hawaii, medical malpractice laws are put in place to hold negligent healthcare providers accountable for injuries that they cause their patients. 

According to the National Practitioner Data Bank, Hawaii had 35 medical malpractice payment reports and 69 adverse action reports in 2022. These data show Hawaii contributed little to the country’s total for that year, which was 39,180 adverse action reports and 10,873 medical malpractice payment reports. Despite the state’s relatively low figures relating to medical malpractice, Hawaii residents must be vigilant when receiving medical treatment and know what to do if, rather than getting well, they suffer harm because of medical malpractice. 

This article aims to help Hawaiians better understand what medical malpractice is and what legal action they can take if they are a victim of medical malpractice. It also explains the types of compensation that plaintiffs in a medical malpractice suit are entitled to.

What Qualifies as Medical Malpractice in Hawaii?

When a healthcare provider’s negligence results in physical injuries or death, there is a potential medical malpractice case. Omissions, errors, and failure to provide appropriate information about the risks of a procedure or treatment are considered professional negligence.

Actions and omissions that could lead to a medical malpractice lawsuit include the following: 

• Misdiagnosis or failure to diagnose: This is when a medical professional fails to properly identify the patient’s condition, resulting in unnecessary or incorrect treatments and aggravated health issues.

• Delayed treatment: This happens when the individual does not receive treatment on time because of an overcrowded emergency room or a delayed diagnosis.

• Retained foreign objects: A lawsuit can be brought up if an item is unintentionally inserted and left in the patient’s body after surgery.

• Medication errors: These include giving the wrong dose of medication or prescribing medication that negatively interacts with the other types of treatment that the patient is already taking.

• Anesthesia errors: This happens when a healthcare provider does not take into consideration the patient’s medical history and administers the wrong dose of anesthesia.

• Surgical errors: Surgeons performing the wrong type of surgery or amputating the incorrect limb is an example of a surgical error.

• Birth injuries: This is when a newborn child sustains an injury during birth that would have been prevented if the medical staff had not been negligent.

Given the examples of medical malpractice, one may conclude that it has the same definition as medical negligence. In Hawaii, both terms refer to a medical provider’s careless conduct that causes injuries to a patient. While in some states or jurisdictions, there may be a fine distinction between medical malpractice and medical negligence, in this article the terms are used interchangeably.

Who Can You Sue for Medical Malpractice in Hawaii?

A victim of medical malpractice in Hawaii may take legal action against licensed healthcare providers and facilities, including hospitals, doctors, nurses, physical therapists, and mental healthcare professionals.  

Exemptions

Some healthcare providers in Hawaii have immunity against medical negligence claims. The state has a Good Samaritan Law, which protects from liability those who provide emergency medical treatment. According to HRS § 663-1.5, individuals who give emergency care without expecting compensation for their services cannot be held liable for medical malpractice. 

Therefore, if a doctor renders emergency aid to someone who passed out in a grocery store, they are protected from possible legal action if the procedure they performed or the treatment they administered results in complications. This is the general rule under the Good Samaritan Law. However, if there is evidence that the doctor was grossly negligent while treating the patient, they may still be sued for malpractice.

The Good Samaritan Law also applies to individuals or entities that publish written general first aid information for emergency situations as a public service without remuneration or the expectation of remuneration. Other parties that are granted a form of immunity from medical malpractice lawsuits include volunteers at nonprofits, hospitals, and government entities. 

Medical Malpractice Liability Insurance Requirements

Most hospitals in Hawaii require doctors to have medical malpractice insurance before they can admit patients. This is because medical malpractice insurance can provide financial protection to physicians if their service results in a negative experience, injury, or death of a patient. This type of insurance assists healthcare providers in funding their legal defense and awarding settlements. 

The most common medical malpractice liability limit in Hawaii is $1 million for each claim, with an annual aggregate cap of $3 million. The physician’s location, medical specialty, and loss history are also taken into consideration when determining the amount of medical malpractice insurance that they need. 

What Is the Statute of Limitations in Hawaii for Medical Malpractice Cases?

According to Hawaii Revised Statutes Section 657-7.3, the victim of medical malpractice in the state cannot take legal action against a healthcare provider if more than two years have passed since the injury was discovered. The statute of limitations starts running from the date that the individual realizes that they did not receive proper medical care. This means that the two-year deadline does not start on the day of the negligent surgery or treatment; instead, it starts on the day the victim discovers or reasonably should have discovered the issue. 

Hawaii also has an absolute time limit, known as a statute of repose, for filing medical negligence claims. From the date the alleged negligent incident occurred, the injured patient has six years to bring an action against the negligent healthcare provider. After this period has passed, the victim can no longer file a claim, regardless of when they became aware of or should have become aware of the injury.

The statute of limitations is tolled if the victim was in prison or was considered mentally incompetent when the medical malpractice happened or was discovered. Legal insanity is classified as the individual’s inability to understand the effect of one’s actions, understand one’s legal rights, or carry out other personal business. 

Statute of Limitations for Minors

In Hawaii, minors will have either six years from the date of the malpractice or until their 10th birthday to file a claim, whichever is longer. This means if the minor was nine years old when the medical negligence took place, they have six years to file a lawsuit, or when they turn 15. If the minor was only three years old when the malpractice occurred, they have until their 10th birthday to make a claim. 

What Do You Need to Prove in a Hawaii Medical Malpractice Case?

Plaintiffs in medical malpractice cases in Hawaii need to prove that their injury is the result of malpractice by the defendant. To be valid and heard in court, malpractice claims in the state must prove the following:

• The medical provider owed the victim a duty of care: The plaintiff must prove that they entered into a doctor-patient relationship with the defendant. Because of that type of relationship, the healthcare provider has a duty to provide a certain level of care to their patient. The standard of care is considered to be the level of care that a competent provider in the same field would have provided in that situation.

• The medical provider failed to fulfill their duty of care: The victim of malpractice needs to prove that the healthcare provider breached their duty of care.

• The medical provider’s breach of duty caused the patient harm: The plaintiff must prove that because of the healthcare provider’s negligence, they either suffered a new injury or their current condition worsened.

• The patient suffered financial and/or non-economic damages due to the malpractice: The victim of malpractice needs to provide evidence for the various damages they suffered as a result of the medical provider’s negligence. 

If any of these four elements are missing, the court will dismiss the medical malpractice case. Plaintiffs do not have to prove their case on their own. They are advised to consult with an experienced Hawaii attorney to discuss whether the facts of their case are enough to support their medical malpractice claims. Attorneys can also conduct investigations and gather evidence related to the case on behalf of their injured clients. 

Medical Inquiry and Conciliation Panel Review

Based on Hawaii Revised Statutes Section 671-12, victims of medical malpractice must submit an inquiry to a medical inquiry and conciliation panel before they can file their claim. The panel consists of one licensed physician and one attorney. 

The inquiry that the prospective plaintiff must submit should include the names of all the healthcare providers involved in the potential lawsuit and the available information on which the claim is based. 

The panel will then contact all the parties involved in the inquiry and give them a chance to respond to the claims. If the parties fail to resolve the issue during the hearing and review process, the patient may proceed with filing a medical malpractice lawsuit in Hawaii’s courts. 

Certificate of Consultation

According to Hawaii Revised Statutes Section 671-12.5, the plaintiff is required to consult with a licensed physician and present a certificate of consultation to the medical inquiry panel along with their inquiry. 

The certificate of consultation declares that the injured patient has consulted with at least one licensed physician in the same medical field related to the claim and that the claim has a reasonable and meritorious basis. 

Exceptions to the certificate of consultation requirement could be made in some cases, such as those where the statute of limitation is approaching or the physician they tried to contact refused to speak with them. 

A certificate of consultation is not required if the claim is being filed due to a lack of informed consent from the patient before a medical treatment or procedure.

Lack of Informed Consent

Failing to obtain the patient’s informed consent outside of emergencies is considered medical malpractice in Hawaii. To secure informed consent, the physician must explain the following to the patient:

• Their medical condition.

• The procedure or treatment that will be performed on them. 

• The possible results of the procedure or treatment.

• The benefits associated with the treatment. 

• The material risks associated with the procedure.

• Possible alternatives to the treatment. 

The doctor is not required to explain all the possible side effects to the patient, but they are required to inform the patient of any risk that would matter to a reasonable person. 

“I’m Sorry” Law

Hawaii is one of the 42 states that have their own versions of the “I’m Sorry” Law. When someone expresses condolences, sympathy, and apologies in court, such gestures may not be used against the person making them. The expressions are considered inadmissible evidence in malpractice cases unless they come with an admission of guilt. 

How Much Can You Sue For Medical Malpractice in Hawaii?

This section of the article discusses the factors that could affect the amount of compensation that a plaintiff could recover in their medical malpractice case in Hawaii. Victims of medical malpractice must understand the damage caps and the types of damages involved in lawsuits to get a better idea of what they could expect when litigating or settling a claim. 

An experienced lawyer can help victims of medical malpractice calculate the amount of compensation they are entitled to based on the damages. 

Types of Damages

Several states impose caps on damages (typically non-economic but sometimes even economic) in medical malpractice cases. However, some deem these limits on damages unconstitutional.

There are two types of damage awards that victims of medical malpractice could receive in Hawaii.

Compensatory Damages

Compensatory damages can be economic or non-economic, with most victims eligible for both. It is awarded to compensate for the injuries they suffered because of the medical provider’s negligence. Compensatory damages are meant to put the victim in a position they would normally be in if they were not injured. 

Non-economic damages provide compensation for issues that are difficult to properly put a value on, such as:

• Loss of consortium

• Loss of enjoyment of life

• Pain and suffering. 

HRS Section 663-8.7 places a cap on the amount of damages recoverable for pain and suffering, limiting it to $375,000. This means that regardless of the circumstances, the victim cannot receive an amount for non-economic damages that exceeds the limit. 

Economic damages compensate injured patients for items that are easy to quantify, such as:

• Nursing costs

• Medical bills

• Physical therapy costs

• Prescription fees

• Future medical costs

• Loss of future wages

• Wages lost from an inability to work.

Economic damages have no cap and can be awarded for their full value. The plaintiff must ensure that they have gathered documents and evidence for their expenses due to the medical malpractice to receive proper compensation.

Punitive Damages

Victims of medical malpractice in Hawaii are awarded punitive damages if their case involves wanton, malicious, or oppressive conduct exhibited by the healthcare provider. Punitive damages punish medical professionals for behaving negligently while treating the patient. 

There are no damage caps for punitive damages in Hawaii. However, the appellate court reviews cases that involve punitive damages to ensure that the amount is not excessive. The court may reduce the award if they consider it excessive in relation to the evidence.

Negligence System

Hawaii follows a modified comparative negligence system in medical malpractice cases. This means that if the victim is found to be partially at fault for their injury, the damage awarded will be reduced based on the percentage of their fault. 

0The state follows a 51% rule, which means a partially at-fault plaintiff can still receive compensation as long as the court finds them to be no more than 50% responsible for their injury. 

Methods of Obtaining Compensation

Medical malpractice cases in Hawaii can be settled outside the courtroom. Some claims are resolved during the Medical Inquiry and Conciliation Panel review. Others are settled through alternative dispute resolution methods like mediation or arbitration. 

For claims that proceed to arbitration, an arbitrator will be selected and will make a record of the award after a hearing where both parties present their arguments. 

Mediation proceedings do not involve going to court. Instead, the process involves appointing an objective and qualified neutral third party to get the two sides to resolve their dispute in an amicable manner. 

How Much Does It Cost to Pursue a Medical Malpractice Case in Hawaii?

Similar to other states, Hawaii has a limit on attorney fees in medical malpractice cases. 

The court decides the limit for both defense and plaintiff attorneys based on various factors, including the degree of skill necessary to complete the case and the time and labor necessary to file the claim and argue the case. This step helps ensure that plaintiffs will not have to overpay for services and will be given the chance to file their claims. 

For lawyers working under a contingency fee arrangement, they are at risk of not getting paid for their legal services. The court will consider this factor when determining the maximum amount of fees. 

Resources for Medical Malpractice Victims in Hawaii

This section of the article provides resources that residents of Hawaii can use to learn more about the legal aspects of medical malpractice in the state. 

Department of Commerce and Consumer Affairs

Hawaii’s Department of Commerce and Consumer Affairs provides injured patients with informational materials and forms they will need when filing a medical malpractice claim. Victims of medical malpractice must first contact the Medical Inquiry and Conciliation Panel and meet the criteria for filing a lawsuit against a healthcare provider. 

Standards of Care

The Standards of Care website is designed to educate patients about their right to receive the standard of medical care. It has a page that discusses the medical malpractice laws in Hawaii. It also provides examples of successful medical malpractice cases in the state. 

Hawaii State Bar Association Legal Assistance Programs

The Hawaii State Bar Association website provides a list of legal assistance programs that could prove useful to Hawaiians dealing with legal problems. This includes free legal resources that plaintiffs can use to learn more about their case and consultation with volunteer attorneys. 

Hawaii Pacific Health

Hawaii Pacific Health is a nonprofit healthcare network of clinics, physicians, and hospitals. Victims of medical malpractice in Hawaii may find their services useful in both recovering from their injuries and strengthening their claims.