Report Title:

Medical Tort Liability; Noneconomic Damages

Description:

Limits noneconomic damages that may be recovered in medical tort actions.  Limits the amount of attorney's fees that may be collected in connection with a medical tort action.

THE SENATE	S.B. NO.	2412
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII

A BILL FOR AN ACT

relating to medical liability.

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

     SECTION 1.  The legislature finds that sound public policy and legislation is needed to address the high cost of medical malpractice insurance premiums and the impact these high costs have on the ability to attract and retain a quality healthcare workforce. 

     The purpose of this Act is to effectuate the recommendations of the Maui Health Initiative Task Force established pursuant to Act 219, Session Laws of Hawaii 2007, by:

     (1)  Limiting noneconomic damages that may be recovered in medical tort actions;

     (2)  Limiting the amount of attorney's fees that may be collected in connection with a medical tort action; and

     (3)  Amending the definition of "health care provider" and "medical tort".

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

"§671-   Limitation on noneconomic damages. Notwithstanding any law to the contrary, noneconomic damages, as defined in section 663-8.5, shall be limited in medical tort actions against a health care provider to a maximum award of $          . 

§671-   Attorney's fees. (a)  An attorney shall not contract for or collect a contingency fee for representing any person seeking damages in connection with an action for a medical tort in excess of the following limits:

(1)      per cent of the first $           recovered;

(2)      per cent of the next $           recovered;

(3)      per cent of the next $           recovered; and

(4)      per cent of any amount recovered that exceeds $          .

The limitations shall apply regardless of whether the recovery is by settlement, arbitration, or judgment, or whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind.

(b)  If periodic payments are awarded to the plaintiff, the court shall place a total value on these payments based upon the projected life expectancy of the plaintiff and include this amount in computing the total award from which attorney's fees are calculated under this section.

(c)  For the purposes of this section, "recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim.  Costs of medical care incurred by the plaintiff and the attorney's office overhead costs or charges are not deductible disbursements or costs for such purpose."

     SECTION 3.  Section 671-1, Hawaii Revised Statutes, is amended to read as follows:

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

     [(1)] "Health care provider" or "healthcare 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, a chiropractor licensed under chapter 442, a dentist licensed under chapter 448, a dental hygienist licensed under chapter 447, an acupuncture practitioner licensed under chapter 436E, a massage therapist licensed under chapter 452, a nurse licensed under chapter 457, an occupational therapist licensed under chapter 457G, an optometrist licensed under chapter 459, a pharmacist licensed under chapter 461, a physical therapist licensed under chapter 461J, a psychologist licensed under chapter 465, a marriage and family therapist licensed under chapter 451J, a dietitian licensed under chapter 448B, a radiologic technologist licensed under chapter 466J, a speech pathologist or audiologist licensed under chapter 468E, a veterinarian licensed under chapter 471, and the employees and legal representatives of any of them.  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 [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.] a negligent act or omission to act by a healthcare provider in the rendering of professional services, or the rendering of professional service by a healthcare provider without informed consent, which act or omission or rendering of service without informed consent is the proximate cause of a personal injury or wrongful death; provided that such services are within the scope of services for which the provider is licensed and are not within any restriction imposed by the licensing agency or licensed hospital."

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect on July 1, 2008.

INTRODUCED BY:

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