HB197

SECTION 1. The legislature understands that one of the most acute issues Hawaii hospitals face is the growing shortage of physicians on call to their emergency departments. In treating traumatic injuries, seconds count. Delay in patient care can mean the difference between full recovery and long-term disability. Yet, currently, delays do occur despite the diligent efforts of emergency department physicians and administrators to locate the specialists required, whether in another hospital or on another island, and hamper the best efforts of emergency physicians and physician specialists to render emergency treatment as quickly as they are able. If current trends continue, this situation will steadily worsen.

Several factors contribute to the shortage of physicians on call at emergency departments. Two factors are high and increasing premiums for medical malpractice liability insurance and increasing difficulty in obtaining liability insurance coverage. Placing a cap on noneconomic damages recoverable from physicians and surgeons in medical tort actions arising from the provision of emergency services and care can address these factors by reducing the unpredictability of noneconomic damage recovery amounts for physicians and surgeons. This, in turn, will reduce the chilling effect that these damage recoveries may have on physicians' willingness to take call at emergency departments.

The purpose of this Act is to improve the availability of physicians on call to the emergency departments of Hawaii's hospitals by imposing a cap on noneconomic damages recoverable from physicians and surgeons in medical tort actions as a result of the provision of emergency care by on-call physicians in a hospital emergency department. The legislature thereby intends to place a specific ceiling on the amount that may be recovered from an on-call physician, and requiring, as a practical matter that any award in excess of that ceiling be borne by another defendant, if any, such as the hospital.

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

"§671- Medical tort action for emergency care; noneconomic damages. (a) Notwithstanding any other law to the contrary, in any medical tort action arising from the professional negligence of a physician or surgeon in the provision of emergency services and care in the emergency department of a hospital, the amount of noneconomic damages recoverable from the physician or surgeon shall not exceed $250,000, regardless of the theory of liability on which the claim is based or the number of plaintiffs, defendants, or other parties or the number of causes of action.

(b) The limitation provided by this section applies only to noneconomic damages awarded as a result of the act or omission of a physician or surgeon in providing medical screening, examination, and evaluation, to determine if an emergency medical condition exists and, if it does, the act or omission of a physician or surgeon in providing care, treatment, or surgery necessary to relieve or eliminate the emergency medical condition, within the service capability of the hospital.

(1) "Hospital" has the same meaning as in section 327-1, but shall also include any employee of the hospital;

(2) "Medical tort action" has the same meaning as in section 671-1;

(3) "Noneconomic damages" has the same meaning as in section 663-8.5;

(4) "Physician" means a physician licensed under chapter 453 or 460 working on-call in the emergency department of a hospital; and

(5) "Surgeon" means a surgeon licensed under chapter 453 or 460 working on-call in the emergency department of a hospital."

SECTION 3. This Act shall not apply to any cause of action for which a complaint has been filed prior to its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on January 1, 2008.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	197
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII