2009 Hawaii Code
Volume 13
TITLE 36 - CIVIL REMEDIES AND DEFENSES AND SPECIAL PROCEEDINGS
CHAPTER 671 - MEDICAL TORTS
§671-12.5 - Certificate of consultation.

     [§671-12.5]  Certificate of consultation.  (a)  Any claim filed with the medical claim conciliation panel under this chapter shall be accompanied by a certificate which declares one of the following:

     (1)  That the claimant or the claimant's attorney has consulted with at least one physician who is licensed to practice in this State or any other state, and who is knowledgeable or experienced in the same medical specialty as the health care professional against whom the claim is made, and that the claimant or claimant's attorney has concluded on the basis of such consultation that there is a reasonable and meritorious cause for filing the claim.  If the claimant or the claimant's attorney is not able to consult with a physician in the same medical specialty as the health care professional against whom the claim is made, the claimant or claimant's attorney may consult with a physician who is licensed in this State or in any other state who is knowledgeable and experienced in a medical specialty that is as closely related as practicable to the medical specialty of the health care professional against whom the claim is made.  The physician or physicians consulted by the claimant or the claimant's attorney may not be a party to the case, nor be compelled to testify or otherwise participate in the hearing before the medical claim conciliation panel;

     (2)  That the claimant or the claimant's attorney was unable to obtain the consultation required by paragraph (l) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action.  If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed by the claimant or the claimant's attorney within ninety days after filing the claim; or

     (3)  That the claimant or the claimant's attorney was unable to obtain the consultation required by paragraph (1) after the claimant or the claimant's attorney had made a good faith attempt to obtain such consultation and the physician contacted would not agree to such a consultation.  For purposes of this paragraph, "good faith attempt" refers to the responsibility of a claimant or claimant's attorney to make reasonable efforts to contact a physician for the purpose of reviewing the circumstances upon which a claim is based.  The claimant or claimant's attorney may contact physicians by letter, telephone, facsimile, or other electronic means of communication.  If the physician does not respond within a reasonable time, the claimant or claimant's attorney may submit its claim to the medical claim conciliation panel along with a certificate declaring such nonresponse to claimant's good faith attempt.  A "good faith attempt" shall ultimately be evaluated in light of the goal of having a qualified physician assist the claimant or claimant's attorney in understanding the basis of the claim, and such determination shall depend upon the circumstances of each individual case.

     (b)  Where a claimant or the claimant's attorney intends to rely solely on a failure to inform of the consequences of a procedure (informed consent), this section shall be inapplicable.  The claimant or the claimant's attorney shall certify upon filing of the claim that the claimant or the claimant's attorney is relying solely on the failure to inform of the consequences of a procedure and for that reason is not filing a certificate as required by this section.

     (c)  For the purposes of this section, the claimant or the claimant's attorney shall not be required to disclose the names of any physician consulted to fulfill the requirements of subsection (a) to any of the other parties to the claim.  The medical claim conciliation panel may require the claimant or the claimant's attorney to disclose the name of any physician consulted to fulfill the requirements of subsection (a).  No disclosure of the name of any physician consulted to fulfill the requirements of subsection (a) shall be made to any of the other parties to the claim; provided that the medical claim conciliation panel may contact any such physician to determine if the requirements of subsection (a) were met.

     (d)  Unless a certificate is filed pursuant to subsection (a) or (b), the claim shall not be received for filing by the medical claim conciliation panel. [L 2003, c 211, §1]