STAND. COM. REP. NO. 774

Honolulu, Hawaii

RE:    S.B. No. 889

       S.D. 2

Honorable Ronald D. Kouchi

President of the Senate

Twenty-Ninth State Legislature

Regular Session of 2017

State of Hawaii

Sir:

     Your Committees on Judiciary and Labor and Ways and Means, to which was referred S.B. No. 889, S.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO PROFESSIONALLY LICENSED OR CERTIFIED GOVERNMENT EMPLOYEES,"

beg leave to report as follows:

     The purpose and intent of this measure is to clarify the personal liability requirements for professionally licensed or certified employees of the State by:

     (1)  Clarifying that the State shall be exclusively liable for civil tort claims resulting from the negligent or wrongful act or omission of a professionally licensed or certified employee of the State acting within the scope of the employee's office or employment;

     (2)  Precluding civil actions or proceedings for money damages against the employee, except for claims based on liability other than an employee's scope of employment with the State or other employer; and

     (3)  Clarifying liability when the State agrees to assume full or partial responsibility in a civil action against a professionally licensed or certified employee.

     Your Committees received testimony in support of this measure from the Department of the Attorney General; Department of Accounting and General Services; Department of Health; Department of Public Safety; Department of Taxation; and Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO.

     Your Committees find that state employees are generally afforded qualified immunity for torts as a result of actions taken while in the course and scope of their state employment, which affords these employees protection from individual liability.  However, in the recent case of Slingluff v. State, 317 P.3d 683 (Haw. Ct. App. 2013), the Intermediate Court of Appeals held that "physicians employed by the State, including prison doctors, exercising purely medical discretion in the diagnosis and treatment of potentially injured or sick people, are not protected from medical malpractice claims by the doctrine of qualified immunity under Hawaii law."  This measure seeks to clarify the issue of state defense and indemnification of professionally licensed or certified employees.

     Your Committees have amended this measure by inserting an effective date of January 7, 2059, to encourage further discussion.

     As affirmed by the records of votes of the members of your Committees on Judiciary and Labor and Ways and Means that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 889, S.D. 1, as amended herein, and recommend that it pass Third Reading in the form attached hereto as S.B. No. 889, S.D. 2.

Respectfully submitted on behalf of the members of the Committees on Judiciary and Labor and Ways and Means,

________________________________ JILL N. TOKUDA, Chair

________________________________ GILBERT S.C. KEITH-AGARAN, Chair