Hawaii Medical Malpractice Laws & Statutory Rules

For anyone considering a medical malpractice claim in Hawaii, it's important to know that these cases are very complicated—and you'll almost always need the testimony of expert witnesses and the help of an experienced attorney. But it can also be helpful to understand the basic outlines of the process before you get started. In this article you'll find a discussion of some of the state laws that could have an impact on your lawsuit, including:

• the statute of limitations for filing a medical malpractice lawsuit in Hawaii
• the pre-trial screening requirements for medical malpractice cases, and
• the statutory limits on damages you can receive if your claim succeeds.

The Medical Malpractice Statute of Limitations in Hawaii

Like all states, Hawaii has laws called "statutes of limitations" that set time limits for filing lawsuits in the state's civil court system. There are different deadlines for different types of cases, but be aware that statutes of limitations are always strictly enforced.

Hawaii's medical malpractice statute of limitations states that the lawsuit must be filed no later than two years after the plaintiff (the person filing the lawsuit) "discovers, or through the use of reasonable diligence should have discovered, the injury." That means that the "clock" starts running on the date you realize—or, in the eyes of the law, should have realized—you've been harmed by a health care provider's negligence, and at that point you have two years to file the case. But Hawaii also has a "statute of repose" for medical malpractice lawsuits, which states that an injured patient can't file a claim more than six years after the date the medical malpractice occurred. So, even if you couldn't have known about the medical error at any point during the six years after it occurred, you're still prohibited from filing a medical malpractice lawsuit once those six years are up.

The only exception to these rules is for situations in which a health care provider knows about but fails to disclose any act, error, or omission related to the malpractice. In that event, the statute of limitations is "tolled" (paused) until the malpractice is discovered.

There are special rules for children: Minors (children under 18) has six years from the date of the alleged malpractice to file the lawsuit. But if the injured child is younger than ten, the claim must be filed within six years of the date the medical malpractice occurred, or by the child's tenth birthday, whichever is later. In addition, the statute of limitations for minors is tolled for any period:

• when the alleged malpractice cannot be discovered "through the use of due diligence," and
• "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."

(Haw. Rev. Stat. § 657-7.3 (2022).)

Requirements for Filing a Medical Malpractice Lawsuit in Hawaii

As part of broader tort-reform efforts, many states have passed laws requiring plaintiffs in medical malpractice cases to submit some type of proof of the defendant's negligence at the beginning of the case, whether in the form of a document called an "affidavit of merit" or by submitting their case to a pre-trial review board. The latter is the case in Hawaii. Here we'll discuss the basic requirements for submitting a medical malpractice case to the state's "medical inquiry and conciliation panel" and for obtaining the "certificate of consultation." But note that this process is very complicated. If you have questions about how these rules apply to your case, check with a qualified medical malpractice attorney.

The Medical Inquiry and Conciliation Panel Process

In Hawaii, before you can file a medical malpractice lawsuit in court, you must submit an "inquiry" with a $450 fee (which can be waived or reduced in some cases) to the state's medical inquiry and conciliation panel. The purpose of the panel process is to try to resolve these cases outside of the court system—whether through settlement, mediation, or some other means—and to discourage meritless lawsuits.

The inquiry must:

• be submitted in writing
• include a description of the facts on which the lawsuit will be based, and
• list the names of all health care providers or facilities to be included in the claim.

After the inquiry is submitted, the panel will notify all of the named health care providers and give them 20 days to respond. At that point, the panel will schedule a hearing to weigh all of the evidence, which can include testimony from medical experts and medical records. If the case cannot be resolved during the panel process, the panel will terminate the proceedings and the case can proceed to court.

(Haw. Rev. Stat. §§ 671-11, 671-11.5, 671-12, 671-13.5, 671-15 (2022).)

The Certificate of Consultation

Hawaii law also requires the inquiry discussed above to be accompanied by a "certificate of consultation," declaring that:

• the injured patient (or the patient's attorney) has consulted with at least one licensed physician, who is knowledgeable or experienced in the same medical specialty as the health care professional named in the inquiry, and
• as a result, the injured patient (or the patient's attorney) has concluded that there is a "reasonable and meritorious cause" for filing the inquiry.

The law can provide an exception to this requirement, but only in certain situations: when the applicable statute of limitations will soon expire or when a "good faith attempt" fails to gain a consultation with a physician.

(Haw. Rev. Stat. § 671-12.5 (2022).)

Pain and Suffering Damages Are Capped at $375,000 in Hawaii

Hawaii does not have a damages cap statute that applies specifically to medical malpractice cases. But state law does prohibit a plaintiff in any tort action in Hawaii (including medical malpractice cases) from collecting more than $375,000 for pain and suffering, which the law defines as "the actual physical pain and suffering that is the proximate result of a physical injury sustained by a person."

Note that economic losses, such as compensation for past and future medical treatment and/or lost income and earning capacity, are not subject to the state's statutory damages cap. There is no limit to the amount of economic damages an injured patient can be awarded in a Hawaii medical malpractice lawsuit.

(Haw. Rev. Stat. §§ 663-8.5, 663-8.7 (2022).)