2022 Hawaii Revised Statutes
Title 36. Civil Remedies and Defenses and Special Proceedings
671. Medical Torts
671-1 Definitions.
§671-1 Definitions. As used in this chapter:
"Health care provider" means a physician, osteopathic physician, surgeon, or physician assistant licensed under chapter 453, a podiatrist licensed under chapter 463E, a health care facility as defined in section 323D-2, and the employees 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 the institution or service.
"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. [L 1976, c 219, pt of §2; am L 1977, c 167, §2; am L 1983, c 223, §1; am L 1984, c 267, §14; am L 1987, c 283, §64; am L 1992, c 55, §1; am L 2009, c 11, §67 and c 151, §25]
Law Journals and Reviews
The Wavering Line Between Medical Malpractice and Ordinary Negligence in Elder Abuse Litigation. 18 HBJ, no. 13, at 81 (2015).
Keomaka v. Zakaib: The Physician's Affirmative Duty to Protect Patient Autonomy Through the Process of Informed Consent. 14 UH L. Rev. 801 (1992).
Holding Hawai €˜i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents. 27 UH L. Rev. 233 (2004).
Case Notes
Where certain counts of plaintiff's complaint alleged errors or omissions in professional practice by a health care provider, thus falling under the definition of "medical tort" under paragraph (2), court properly ruled plaintiff could not proceed with those counts of suit without first submitting them to medical claim conciliation panel as required by § §671-12 and 671-16. 89 H. 188, 970 P.2d 496 (1998).
Where defendant doctor never properly established at trial the "therapeutic privilege exception" to the requirement that informed consent be obtained before starting patient on antipsychotic medication, trial court erred in refusing to instruct jury concerning the tort of negligent failure to provide informed consent. 98 H. 470, 50 P.3d 946 (2002).
An alleged "unnecessary, improper and intrusive examination of a woman's breasts" where the doctor allegedly "fondled the woman's breasts and squeezed the woman's nipples until they squirted milk in the doctor's face" is an alleged "medical tort" as defined in paragraph (2) because it is an alleged "error in professional practice, by a health care provider". 93 H. 490 (App.), 6 P.3d 362 (2000).
Where defendant was a Hawaii nonprofit organization, which served as the parent corporation of four affiliated hospitals in Hawaii, including Kapiolani, a wholly-owned subsidiary of defendant, defendant was a "health care provider" in the context of this chapter. 121 H. 235 (App.), 216 P.3d 1258 (2009).
Plaintiff's claims of neglect, abuse, and failure to provide a safe home against care home defendants did not constitute "medical torts" within the meaning of this section; thus, plaintiff was not required to submit plaintiff's claims to a medical claim conciliation panel (MCCP) pursuant to § §671-12 and 671-16 as a condition for plaintiff to file suit against defendants, and the circuit court erred in dismissing plaintiff's suit based on plaintiff's failure to submit plaintiff's claims to a MCCP. 128 H. 405 (App.), 289 P.3d 1041 (2012).
