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Hawaii Medical Malpractice Law - An Overview

By Aaron Larson

Law Offices of Aaron Larson

July, 2004

Important Notice: The following overview of Hawaii's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of Hawaii's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of Hawaii.

Contents

• What Is Medical Malpractice
• Limits on Malpractice Damages
• Collateral Source Rule
• Rules for Expert Witnesses
• Joint and Several Liability
• Statute of Limitations
• Limits on Attorney Fees
• Additional Rules
• Why Use A Malpractice Lawyer

What Is Medical Malpractice

Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

• Misdiagnosis of, or failure to diagnose , a disease or medical condition;
• Failure to provide appropriate treatment for a medical condition;
• Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Limits on Malpractice Damages

Hawaii limits damages for pain and suffering to $375,000. This limit is not applicable to awards for other non-economic damages, such as mental anguish, disfigurement, loss of consortium, or loss of enjoyment of life ("hedonic damages").

Collateral Source Rule

Under the collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage.

Rules for Expert Witnesses

There are no special rules for expert witnesses in medical malpractice cases.

Joint and Several Liability

Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. In Hawaii, where a defendant's negligence is less than 25% responsible for the plaintiff's injury, responsibility for damages is apportioned between defendants in proportion to their fault.

Statute of Limitations

Medical malpractice actions must be commenced within two years from the act giving rise to injury injury or reasonable date of discovery. In the event that an object is left inside a person's body, a medical malpractice action may be commenced within one year from the date of discovery. However, all medical malpractice actions must be commenced within six years of the date of the act giving rise to injury. This six-year time limitation is tolled for any period during which the person has failed to disclose any act, error, or omission upon which the action is based and which is known to the person. Under Hawaiian law, minors have until the age of ten or the standard six year statutory period to file a claim, whichever is longer.

Limits on Attorney Fees

Attorney fees are not limited, but must be approved by the court.

Additional Rules

Hawaii requires all malpractice claims to be submitted to a medical claim conciliation panel. The findings of the panel are not admissible at trial.

All claims for damages in amounts of $150,000.00 or less are subject to mandatory nonbinding arbitration.

Why Use A Malpractice Lawyer

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.

Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.

Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.

Copyright © 2003-2006 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder, except as follows: You may link this article to your website, either directly or through an ExpertLaw Library index page, provided your link does not depict this article, its author, or expertlaw.com in a negative manner.