Report Title:

Relating to torts.

Description:

Imposes limitations on awards of noneconomic and punitive damages and attorney's fees. Allocates damages in proportion to degree of negligence. Prohibits joint liability and allows periodic payment of future damages in medical tort actions.

THE SENATE

S.B. NO.

757

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO TORTS.

 

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

SECTION 1. Chapter 671, Hawaii Revised Statutes, is amended by adding eight new sections to be appropriately designated and to read as follows:

"§671-A Unlimited economic damages. Nothing in this chapter shall limit in medical tort actions the recovery of the full amount of economic damages.

§671-B Limitation on noneconomic damages. 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 $250,000.

§671-C Punitive damages. No judgment for punitive damages shall exceed the greater of $250,000 or an amount that is three times the compensatory damages contained in such judgment. If a case is tried to a jury, the jury shall not be informed of this limitation.

§671-D Attorney's 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 on which the recovery exceeds $600,000.

The 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-H, 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.

(c) For purposes of this section, "recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and the attorney's office overhead costs or charges are not deductible disbursements or costs for such purpose.

§671-E Assessing percentage of negligence. Upon request of any nonsettling healthcare provider against whom a plaintiff alleges a medical tort causing injury, the trier of fact shall consider, in assessing any percentage of negligence or other fault, the negligence or other fault of all alleged parties, including the negligence or other fault of any person or entity who has entered into a settlement with the plaintiff for the claimed damages, even when the settlement has been determined to have made in good faith, pursuant to section 663-15.5.

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

§671-G 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 healthcare provider in accordance with the percentage of negligence or other fault for compensatory damages that is attributed to the healthcare provider by the trier of fact.

(b) Joint and several liability shall apply if a healthcare provider's degree of negligence is found to be twenty-five per cent or more under section 671-F.

(c) Where a medical care provider's degree of negligence is less than twenty-five per cent, then the amount recoverable against that medical care provider for noneconomic damages shall be in direct proportion to the degree of the negligence assigned.

(d) Judgment shall not be entered against any healthcare 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.

§671-H Periodic payments. (a) In any medical tort action, a court shall, at the request of either party, 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 such future damages. As a condition to authorizing periodic payments of future damages, the court shall require a judgment debtor who is not adequately insured to post security adequate to post security adequate to assure full payment of such 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)(1) The 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. Such payments shall only be subject to modification in the event of the death of the judgment creditor.

(2) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in paragraph (1), 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 such periodic payments, including court costs and attorney's fees.

(c) However, money damages awarded for loss of future earnings shall not be reduced or payments 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 his death. In such cases the court that rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this section.

(d) Following the occurrence 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 security given pursuant to subsection (a) shall revert to the judgment debtor.

(e) For purposes of this section:

"Future damages" includes 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.

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

SECTION 2. 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.] (a) Medical tort actions, 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 legal action exceed three years unless tolled for any of the following:

(1) Upon proof of fraud;

(2) Intentional concealment; or

(3) The presence of a foreign body, which 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. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or healthcare provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence."

SECTION 3. Section 663-11, Hawaii Revised Statutes, is amended to read as follows:

"§663-11 Joint tortfeasors defined. For the purposes 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 healthcare providers in section 671-F."

SECTION 4. Section 671-1, Hawaii Revised Statutes, is amended to read as follows:

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

[(1)] "Health care provider" or "healthcare 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, a chiropractor licensed under chapter 442, a dentist licensed under chapter 448, a dental hygienist licensed under chapter 447, an acupuncture practitioner licensed under chapter 436E, a massage therapist licensed under chapter 452, a nurse licensed under chapter 457, an occupational therapist licensed under chapter 457G, an optometrist licensed under chapter 459, a pharmacist licensed under chapter 461, a physical therapist licensed under chapter 461J, a psychologist licensed under chapter 465, a marriage and family therapist licensed under chapter 451J, a dietitian licensed under chapter 448B, a radiologic technologist licensed under chapter 466J, a speech pathologist or audiologist licensed under chapter 468E, a veterinarian licensed under chapter 471, and the employees and legal representatives 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 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 proximately causes death, injury, or other damage to a patient.] a negligent act or omission to act by a healthcare provider in the rendering of professional services, or the rendering of professional service by a healthcare provider without informed consent, which act or omission or rendering of service without informed consent is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital."

SECTION 5. In codifying the new sections added by section 1 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 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. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:

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BY REQUEST