Report Title:

Evidence; Medical Liability; Benevolent Gestures

Description:

Makes benevolent gestures regarding a medical error inadmissible as evidence of an admission of liability in medical malpractice claims.  (HB1253 HD1)

HOUSE OF REPRESENTATIVES	H.B. NO.	1253
TWENTY-FOURTH LEGISLATURE, 2007		H.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO THE HAWAII RULES OF EVIDENCE.

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

     SECTION 1.  The legislature recognizes that when healthcare providers, such as physicians, take responsibility for medical errors and offer expressions of sympathy or benevolence, trust builds, and patients and family members have less inclination to sue.  Such a communication can also lead to open discussion from which the hospital may obtain information that will help avoid similar errors in the future.  A growing number of states have passed laws that protect such communications from being used against healthcare providers in court as evidence of liability.

     The purpose of this Act is to protect such communications from being used against healthcare providers in medical malpractice actions.

     SECTION 2.  Section 626‑1, Hawaii Revised Statutes, is amended by adding to article IV a new rule to be appropriately designated and to read as follows:

"Rule    Admissibility of expressions of sympathy or benevolence. (a)  In any civil action that is brought against a healthcare provider, as defined in section 671‑1, or in any arbitration proceeding that relates to the civil action, any statements, writings, or benevolent gestures that:

(1) Express sympathy or a general sense of benevolence relating to the pain, suffering, or death of the patient involved in the incident with the healthcare provider; and

(2) Are made to the patient or to the family of the patient;

are inadmissible as evidence of an admission of liability.  A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

(b)  For purposes of this section:

"Benevolent gestures" means actions which convey a sense of compassion or commiseration emanating from human impulses.

"Family" means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted children of parent, or spouse's parent of the injured party."

     SECTION 3.  This Act does not affect the rights or duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 4.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect on January 1, 2112.