Report Title:

Medical Tort Liability; Noneconomic Damages



Addresses medical malpractice insurance costs by capping non-economic damages at $500,000 for high-risk medical specialties and $250,000 for all other specialties, establishing a limit of $3,000,000 for noneconomic damages determined by the court to be for catastrophic injuries, and requiring that economic damages be allocated based upon proportionate percentage of negligence.  Sunsets December 31, 2015.



H.B. NO.




















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

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

     "Catastrophic injuries" means irreversible, life-altering injuries to an individual such as anoxic brain injury, permanent paralysis, or other conditions as determined by the department of health.

     [(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[.]; provided that for purposes of part        of this chapter, the term shall include the legal representatives of the health care provider.  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:

     (1)  Except as otherwise provided in paragraph (2), 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[.]; or

     (2)  For purposes of part      of this chapter, a negligent act or omission to act by a health care provider in rendering professional services, or the provision of professional service by a health care provider without informed consent, which service is within the scope of services for which the provider is licensed and is not within any restriction imposed by the licensing agency or licensed hospital, and which act or omission or provision of service without informed consent occurs in a county with a population of less than five hundred thousand and is the proximate cause of a personal injury or wrongful death.

     "Noneconomic damages" has the same meaning provided in section 663-8.5."


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

Part  .  MEDICAL LIABILITY in certain counties

     §671-A  Application of part.  This part shall apply to each county with a population of less than five hundred thousand and shall supersede any law of the State or its political subdivisions to the contrary.

     §671-B  Limitation on noneconomic damages.  (a)  In medical tort actions under this part, noneconomic damages shall be limited to a maximum award of:

     (1)  $500,000 for high-risk medical specialties as designated by the department of health; and

     (2)  $250,000 for any medical specialty other than a high-risk medical specialty;

provided that in cases involving catastrophic injuries, noneconomic damages shall be limited to a maximum award of $3,000,000.

     §671-C  Assessing percentage of negligence.  Upon request of any nonsettling health care provider against whom a plaintiff alleges a medical tort that has caused injury, the trier of fact shall consider, in assessing any percentage of negligence or other fault, the negligence or other fault of all 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 been made in good faith, pursuant to section 663-15.5.

     §671-D  Economic damages.  (a)  A trier of fact may render a verdict for the plaintiff in a medical tort action that includes economic damages.

     (b)  For the purposes of this section, "economic damages" include:

     (1)  Past and future medical expenses;

     (2)  Loss of past and future earnings;

     (3)  Loss of use of property;

     (4)  Cost of repair or replacement;

     (5)  Cost of obtaining domestic services;

     (6)  Loss of employment; and

     (7)  Loss of business and employment opportunities.

     §671-E  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-F  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 for noneconomic damages in accordance with the percentage of negligence or other fault for economic 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 663-8.7, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§663-8.7[]]  Limitation on pain and suffering.  Damages recoverable for pain and suffering as defined in section 663-8.5 shall be limited to a maximum award of $375,000; provided that this limitation shall not apply to [tort]:

     (1)  Tort actions enumerated in section 663-10.9(2)[.]; and

     (2)  Medical tort actions under part      of chapter 671."

     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 in part    of chapter 671."


     SECTION 5.  By December 31, 2010, the department of health shall adopt rules in accordance with chapter 91:

(1)    Designating the medical specialties that are high-risk for purposes of section 671-B in section 2 of this Act; and

(2)    Defining "catastrophic injuries" for purposes of the new definition of that term established in section 1 of this Act. 

     In adopting these rules, the department shall:

     (1)  Consult with medical malpractice insurance companies and representatives of medical specialty societies in the state; and 

     (2)  Determine high-risk medical specialties based on statewide data for each specialty, including data regarding medical tort claims, judgments, awards, settlements, and medical malpractice insurance premiums.

     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 January 1, 2011, and shall be repealed on December 31, 2015; provided that:

     (1)  Section 5 of this Act shall take effect upon the approval of this Act; and

     (2)  Parts I and II of this Act shall apply to injuries and deaths occurring after the effective date of this Act.