Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
By statute, Hawaii caps non-economic (pain and suffering) damges in medical negligence cases at $375,000.00.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.
Hawaii has adopted a modified version of joint and several liability. Hawaii permits awards of joint and several liability against joint tortfeasors, for economic damages. While joint and several liability has been abolished for medical negligence cases. Further, if the degree of negligence of an individual tortfeasor in a medical negligence case is less than 25 percent, noneconomic damages are limited to the degree of negligence assigned to that tortfeasor.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Hawaii applies this common law rule.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Hawaii, the statute of limitations for malpractice claims by adults is two years from the date of discovery, not to exceed six years from date of the act or omission alleged to have caused the plaintiff's injury.
For minors under age of ten, a malpractice action must be commenced within six years of the alleged wrongful act or omission or by the minor's tenth birthday, whichever period ends later. For minors over the age of ten, a malpractice action must be commenced within six years from the date of the alleged wrongful act or omission.
Additional rules affecting malpractice litigation in the State of Hawaii include:
Limits on Attorney Fees
Hawill limits attorney fees for both the plaintiff and the defendant to a reasonable amount as approved by the court.
Medical Inquiry Conciliation Panel
In Hawaii, before a medical malpractice case may be filed in court it must ordinarily first be submitted to the Medical Inquiry Conciliation Panel (MICP), part of the state's Department of Commerce and Consumer Affairs. Each two-person panel is chaired by a licensed attorney, and the panel must also include one licensed physician.
The goal of the MICP process is to provide non-adversarial review of claims by patients and their families, and to facilitiate the conveyance of information without assignment of blame. When the parties are not able to resolve their dispute, the MICP process attempts to narrow and define the calims, and to address questions of causation, liability and damages in order to help the parties better understand the nature of the claims and to help and encourage them to reach a voluntary settlement. Statements made during the course of the MICP process, and any recommendations made as a result of that process, are not admissible in later court proceedings.
If all of the parties to a malpractice claim agree in writing to submit the dispute to an alternate dispute resolution process, they may bypass the MICP requirement.
Certificate of Merit
When a claim is filed with a medical claim conciliation panel, Hawaii requires that the claim be accompanied by certificate of merit is a document created by a licensed medical expert, knowledgeable or experienced in the same medical field as the health care professional against whom the claim is made, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. However, no certificate of merit is required if the sole basis for the claim is a failure to obtain informed consent.
Medical Expert Witness Restrictions
In order to testify as an expert in a medical malpractice case in Hawaii, a physician expert must be licensed to practice in the state or any other state, and be knowledgeable or experienced in the same medical specialty as the health care professional against whom the inquiry is made.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Hawaii excludes from evidence statements or gestures that express sympathy, commiseration, or condolence for the purpose of proving the speaker's liability for any claim growing out of an event. However, the rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even if contained in or part of a statement or gesture that would otherwise be excludable under that rule.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.