Report Title:

Medical Tort Claims; Noneconomic Damages

 

Description:

Limits the amount awarded for non-economic damages in medical tort cases to $750,000 aggregate and $250,000 per physician, healthcare provider, healthcare facility, and any other involved parties.  Sets the award limit for non-economic damages in cases of gross negligence at $3,000,000.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1784

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to Medical Torts.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Over the years, a number of doctors have retired or left Hawaii, especially the neighbor islands, citing reasons that include high medical malpractice insurance rates, low insurance reimbursement rates, and the high cost of living.   Hawaii has been unable to replace these doctors in a manner that provides Hawaii residents timely access to adequate healthcare.

     Doctors are critical components of our society, providing a very important service to everyone in the State, and it is the job of the legislature to ensure that the State provides the best quality of life possible for its residents.  Addressing the needs and concerns of healthcare providers is a key step toward keeping Hawaii healthy.

     The purpose of this Act, to be known as "The Hawaii Non-Economic Damages Cap Act of 2009" is to address the high cost of medical malpractice insurance and defensive medicine by placing a $750,000 aggregate cap and a $250,000 individual cap for non-economic damages in medical tort cases.

     This is one of eight proposals introduced in the twenty-fifth legislature, regular session of 2009, designed to address the increasingly challenging healthcare environment in Hawaii.  Collectively these eight bills shall be known as "The Hawaii Doctor Recruitment and Retention Action Plan of 2009".

     SECTION 2.  Chapter 671, Hawaii Revised Statutes, is amended by adding seven new sections to be appropriately designated and to read as follows:

     "§671-A   Evidence of collateral benefits admissible.  (a) In the event the defendant so elects, in an action for a medical tort, the defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury underlying the action pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services.  Where the defendant elects to introduce evidence of collateral benefits, the plaintiff may introduce evidence of any amount that the plaintiff has paid or contributed to secure the plaintiff's right to any insurance benefits concerning which the defendant has introduced evidence.

     (b)  No entity that is a source of collateral benefits, evidence of which is introduced pursuant to subsection (a), shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.

     §671-B  Attorney fees.  (a)  An attorney shall not contract for or collect a contingency fee for representing any person seeking damages in connection with an action for a medical tort in excess of the following limits:

     (1)  Forty per cent of the first $50,000 recovered;

     (2)  Thirty-three and one-third per cent of the next $50,000 recovered;

     (3)  Twenty-five per cent of the next $500,000 recovered; and

     (4)  Fifteen per cent of any amount of recovery that exceeds $600,000.

The fee limitations shall apply regardless of whether the recovery is by settlement, arbitration, or judgment or whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind.

     (b)  If periodic payments are awarded to the plaintiff pursuant to section 671-C, the court shall place a total value on these payments based upon the projected life expectancy of the plaintiff and include this amount in computing the total award from which attorney's fees are calculated under this

section.

     §671-C  Periodic payments.  (a)  In any medical tort action, a court, at the request of either party, shall enter a judgment ordering that money damages or the equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments, rather than by a lump-sum payment, if the award equals or exceeds $50,000 in future damages.  In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments that will compensate the judgment creditor for the future damages; provided that when authorizing periodic payments of future damages, the court shall require a judgment debtor who is not adequately insured to post security adequate to ensure full payment of the damages awarded by the judgment.  Upon termination of periodic payments of future damages, the court shall order the return of this security, or so much as remains, to the judgment debtor.

     (b)  A judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made.  The payments shall only be subject to modification in the event of the death of the judgment creditor.

     (c)  In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make payments, the court shall find the judgment debtor in contempt of court, and in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make the periodic payments, including court costs and attorney's fees.

     (d)  Financial damages awarded for loss of future earnings shall not be reduced or terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to death.  In such a case, the court that rendered the original judgment, upon petition of any party in interest, may modify the judgment to award and apportion the unpaid future damages in accordance with this subsection.

     (e)  Following the performance or expiration of all obligations specified in the periodic payment judgment, any obligation of the judgment debtor to make further payments shall cease and any remaining security given pursuant to subsection (a) shall revert to the judgment debtor.

     §671-D  Limitation on noneconomic damages.  In an action on a medical tort claim where final judgment is rendered against a physician or health care provider, the limit on civil liability for noneconomic damages of the physician or health care provider, inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $250,000 for each claimant, regardless of the number of defendant physicians or health care providers.  Notwithstanding section 663-8.7, noneconomic damages as defined in section 663-8.5 shall be limited in medical tort actions to a maximum award of:

     (1)  $250,000 against any physician or health care provider, $250,000 against any health care institution, and $250,000 against all persons and entities for which vicarious liability theories may apply, totaling at most $750,000 in aggregate for all health care liability claims where final judgment is rendered against any physician or health care provider, health care institution, or other liable person or entity;

     (2)  If the gross negligence standards are met, then non-economic damages shall be limited to a maximum award of $3,000,000 allocated proportionately based upon percentage of fault.

     §671-E  Economic damages.  A trier of fact may render a verdict for the plaintiff in a medical tort action that includes economic damages, including but not limited to past and future medical expenses, loss of past and future earnings, loss of use of property, cost of repair or replacement, cost of obtaining domestic services, loss of employment, or loss of business and employment opportunities.

     §671-F  Proportionate allocation of economic damages.  The amount of economic damages allocated to a health care provider in a medical tort action shall be based upon the health care provider's proportionate percentage of negligence or other fault.

     §671-G  Allocation of noneconomic damages.  (a)  If the trier of fact renders a verdict for the plaintiff in a medical tort action, the court shall enter judgment of liability against each defendant health care provider in accordance with the percentage of negligence or other fault for compensatory damages that is attributed to the health care provider by the trier of fact.

     (b)  Judgment shall not be entered against any health care provider who has not been named a party or has been released, dismissed, or otherwise discharged as a party pursuant to section 663-15.5."

     SECTION 3.  Section 657-7.3, Hawaii Revised Statutes, is amended to read as follows:

     "§657-7.3  Medical torts; limitation of actions; time.  [No action for injury or death against a chiropractor, clinical laboratory technologist or technician, dentist, naturopath, nurse, nursing home administrator, dispensing optician, optometrist, osteopath, physician or surgeon, physical therapist, podiatrist, psychologist, or veterinarian duly licensed or registered under the laws of the State, or a licensed hospital as the employer of any such person, based upon such person's alleged professional negligence, or for rendering professional services without consent, or for error or omission in such person's practice, shall be brought more than two years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, but in any event not more than six years after the date of the alleged act or omission causing the injury or death.  This six-year time limitation shall be 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.

     Actions by a minor shall be commenced within six years from the date of the alleged wrongful act except the actions by a minor under the age of ten years shall be commenced within six years or by the minor's tenth birthday, whichever provides a longer period.  Such time limitation shall be tolled for any minor 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.  The time limitation shall also be 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.] An action for a medical tort, as defined in section 671-1, shall commence within three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.  In no event shall the time for commencement of the legal action exceed three years unless tolled for any of the following:

     (1)  Upon proof of fraud;

     (2)  Upon proof of intentional concealment; or

     (3)  Upon discovery of the presence of a foreign body that has no therapeutic or diagnostic purpose or effect in the person of the injured person.

     (b)  Actions by a minor shall be commenced within three years from the date of the alleged wrongful act, except that actions by a minor under the full age of six years shall be commenced within three years, or prior to the eighth birthday of the minor, whichever provides a longer period.  The time limitation shall be tolled for minors for any period during which a parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence."

     SECTION 4.  Section 663-11, Hawaii Revised Statutes, is amended to read as follows:

     "§663-11  Joint tortfeasors defined.  For the purpose of this part, the term "joint tortfeasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them[.], except as provided for health care providers as defined in chapter 671."

     SECTION 5.  Section 671-1, Hawaii Revised Statutes, is amended to read as follows:

     "§671-1  Definitions.  As used in this chapter:

     "Future damages" means damages for future medical treatment, care, or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor.

     "Gross negligence" means the reckless provision of health care that is clearly below the standard of acceptable medical practice, without regard for potential consequences or with wilful or wanton disregard for the well-being of the patient.

     "Health care facility" means any health care facility as defined in section 323D-2.

     [(1)] "Health care provider" means a physician or surgeon licensed under chapter 453, [a physician and surgeon licensed under chapter 460,] a podiatrist licensed under chapter 463E, a health care facility as defined in section 323D-2, and the employees of any of them.  Health care provider shall not mean any nursing institution or nursing service conducted by and for those who rely upon treatment by spiritual means through prayer alone, or employees of [such] the institution or service.

     [(2)] "Medical tort" means professional negligence, the rendering of professional service without informed consent, or an error or omission in professional practice[,] by a health care provider[, which] that proximately causes death, injury, or other damage to a patient[.]; provided that the services are within the scope of services for which the provider is licensed and that are not within any restriction imposed by the licensing agency or licensed hospital.

     "Periodic payments" means the payment of money or delivery of other property to the judgment creditor at regular intervals.

     "Recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim; provided that costs of medical care incurred by the plaintiff and any administrative fees, including overhead costs, are not deductible disbursements or costs for such purposes.

     "State" means the state of Hawaii."

     SECTION 6.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 7.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect on July 1, 2009.

 

INTRODUCED BY:

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