Statutes of Limitations

A medical malpractice action for injury or death must be brought within two years of the time the claimant discovers or reasonably should have discovered the injury; however, it cannot be filed more than six years after the date of of the act or omission causing the injury or death. Haw. Rev. Stat. § 657-7.3 (1995). "Discovery" has been interpreted to mean discovery of the damage, the violation of duty, and the causal connection between them. Hays v. City and County of Honolulu, 81 Haw. 391, 917 P.2d 718 (1996).

Medical malpractice suits on behalf of minors must be commenced within six years from the date of the wrongful act, unless the child is under the age of ten, in which case the action need only be commenced within six years from the date of injury or by the child's tenth birthday, whichever is later. Haw. Rev. Stat. § 657-7.3 (1995). The statute also allows the time limitation to be tolled during any period when the child's injury could not have been discovered through the use of reasonable diligence. Id.

With respect to claimants who are insane or imprisoned, the statutory time does not begin to run until the disability is removed. Haw. Rev. Stat. § 657-13 (1995).

Contributory or Comparative Negligence

Hawaii has adopted the doctrine of modified comparative negligence. Haw. Rev. Stat. § 663-31 (1995). Under this doctrine, a claimant's action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant's recovery is diminished in proportion to his degree of negligence. Id.

Joint and Several Liability

Hawaii has modified the doctrine of joint and several liability. Haw. Rev. Stat. § 663-10.9 (1995). Liability for economic loss for personal injury and death is joint and several. Liability for non-economic damages is also joint and several if the tortfeasor is 25 percent negligent or more. That leaves as several only the liability of minor tortfeasors for non-economic damages.

Contribution

The right of contribution exists among joint tortfeasors who are jointly and severally liable. Haw. Rev. Stat. § 663-12 (1995). A joint tortfeasor becomes entitled to contribution by paying more than his pro rata share. A joint tortfeasor who enters into a settlement with the injured person is not entitled contribution from another joint tortfeasor unless the settlement extinguishes the other's liability. Id. When there is such a disproportion of fault among joint tortfeasors as to make equal shares inequitable, the relative degrees of fault of the joint tortfeasors may be considered in determining their pro rata shares. Id. An independent action for contribution will not be allowed if the right can be enforced with a third-party action or cross-claim in the principal lawsuit. Haw. Rev. Stat. § 663-17 (1995).

Vicarious Liability

Hawaii has not imposed liability on hospitals for the negligence of non-employed physicians.

Expert Testimony

Hawaii does not require that an expert opinion accompany a medical malpractice complaint supporting the claims of negligence. However, an expert opinion is necessary to establish a prima facie case of medical malpractice at trial, unless the negligence is obvious to a layman. Medina v. Figuered, 3 Haw. App. 186, 647 P.2d 292 (1982).

Damage Caps

Hawaii has a statute that imposes a $375,000 damage limit for the recovery of damages for pain and suffering. Haw. Rev. Stat. § 663-8.7 (1995). There are no published cases referring to this damage cap.

Statutory Cap on Attorneys' Fees

Hawaii does not limit attorneys' fees in medical malpractice actions; however, fee arrangements must be approved by the court. Haw. Rev. Stat. § 607-15.5 (1996).

Periodic Payments

Hawaii does not have a statutory requirement for the periodic payment of damages.

Collateral Source Rule

Hawaii applies the collateral source rule, under which payments to the claimant from collateral sources are not considered in calculating the claimant's damages. Boudreau v. General Electric Co., 2 Haw. App. 10, 625 P.2d 384 (1981).

Pre-Judgment Interest

Judges may, in their discretion, grant pre-judgment interest in tort cases, beginning at the earliest with the date of injury. Haw. Rev. Stat. § 636-16 (1995).

Patient Compensation Funds and Physician Insurance

Hawaii does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

The State of Hawaii has waived its immunity from liability for the acts of its employees. Haw. Rev. Stat. § 662-2 (1995). While Hawaii's Tort Claims Act only mentions the state, it has been interpreted as waiving common law immunity for local governments unless the local government has been expressly excluded from the general waiver of immunity. Cootey v. Sun Investment, Inc., 68 Haw. 480, 718 P.2d 1086 (1986).

In addition, the state waives any remaining defenses of sovereign immunity it may have to the extent it carries applicable insurance. Haw. Rev. Stat. § 661-11 (1995).

When the action involves a tort claim against the State of Hawaii, and the final judgment is in excess of $1,000,000, the state may pay that amount in excess of $1,000,000 in a series of payments over five years. Haw. Rev. Stat. § 657-24 (1995). The periodic payments must include interest.

Arbitration

Hawaii has established a system of medical claims conciliation panels which review potential cases and issue advisory opinions on liability and damages. Review by the conciliation panel is a prerequisite to filing a complaint in court. Haw. Rev. Stat. § 671-12 (1995).

The panel will determine whether the named defendants were negligent, and determine the amount of economic, non- economic, and punitive damages. The parties have the option of rejecting the panel's recommendation and taking the claim to court. Haw. Rev. Stat. § 671-16 (1995).

A judge may require a medical malpractice action to be arbitrated prior to trial. However, the Hawaii legislature has recognized that the three-step process of hearing, arbitration, and trial can delay cases unnecessarily. Therefore a party to a medical malpractice action can choose between arbitration or a hearing by the panel. Haw. Rev. Stat. § 671-16.5 (1995).