Each state has different laws and rules concerning medical negligence claims. Here is what you need to know about filing a claim in Hawaii.
First the claim must be filed with the Medical Claim Conciliation Panel (MCCP) at the Department of Commerce and Consumer Affairs (DCCA). The website for the MCCP has down-loadable Forms that a non-attorney can use to file the claim. There is currently a fee of $450 per claimant.
Under Hawai`i Revised Statutes §671-12.5(a) the claimant must file a certification stating that a doctor in the same specialty has reviewed the case and given the opinion that the doctor was negligent. The report from the consultant need not be disclosed but the MCCP panel may ask to see it so a report should be in the file and no claim should be filed unless you have a doctor who has agreed with you the there was medical negligence. A certificate is not required if the claim is that the claim is that doctor failed to get the patient’s informed consent of the patient. This occurs when the doctor, for instance, does something that was not disclosed to the patient.
The statue of limitations for medical malpractice actions in Hawaii is two (2) years from the date of the negligence. If the patient does not learn of the negligence, for instance in a case of misdiagnosis, then the patient has one additional year from the date of discovery. No claim can be filed longer than six (6) years after the negligence occurred (not the discovery of the negligence). The claim at the MCCP must be filed within this time limit.
The papers that must be filed to initiate the claim do not need to be written by a lawyer. Simply write out what the claimed negligence consists of, what the injury is and how it has affected the patient’s life and attach a complete set of the medical records.
The MCCP is a non-binding arbitration. The three person panel consists of two attorneys and one doctor who is in the specialty of the defendant. A hearing is scheduled within a few months and a hearing is held where the patient explains her or his claims and then the doctor presents the defense. Experts may be brought in to testify.
After the decision, the patient may bring a lawsuit in court to take the case to trial if the case doesn’t settle. The decision is non-binding and nothing from the MCCP proceeding can be used in the court proceeding.
A key point to remember is that the simple fact that the patient had a bad result does not make it a medical malpractice case. Most situations where the treatment was not successful are not because of an avoidable medical error. Most times it is simply that in difficult medical procedures with the human body there are often unavoidable bad results. I have spent 30 years explaining to potential clients in med Mal cases that the doctor did nothing wrong and that it isn’t a case.
Another key point to remember is that the doctors do not ever admit that they were at fault. Doctors have a problem with honesty when it comes to being held to have made a mistake. So if you have heard that the "doctor will probably settle out of court" if a claim is filed in order to protect her or his reputation. That will not happen except in the most egregious cases of medical negligence.
Do you need an attorney? Yes. You can do the MCCP on your own without an attorney, but chances of success are small. Going to court without an attorney in a medical malpractice would be nearly impossible. This is a complex area of the law.
A resident of Honolulu, Hawaii, Wayne Parson is an Injury Attorney that has dedicate his life to improving the delivery of justice to the people of his community and throughout the United States. He is driven to make sure that the wrongful, careless or negligent behavior that caused his clients' injury or loss does not happen to others.