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Doe v. City and County of Honolulu3/15/2000
In this alleged "medical torts" case, Plaintiff-Appellant Jane Doe (Jane) appeals the circuit court's January 22, 1999 Judgment. We vacate the January 22, 1999 Judgment and remand for the entry of an order dismissing Jane's Complaint without prejudice.
Primarily, Jane challenges the August 6, 1998 "Order Granting (Without Prejudice) Defendants City and County of Honolulu, Department of Health, City and County of Honolulu and Salvatore Lanzilotti's Motion to Dismiss Complaint Filed on July 24, 1997, Filed on June 24, 1998" (August 6, 1998 Order). We agree with the result of the August 6, 1998 Order but not its reasoning.
This opinion involves the application of Hawaii Revised Statutes (HRS) ยงยง 671-1(2) and -12 (1993) and other related statutes.
BACKGROUND
Jane is a police officer employed by the Honolulu Police Department (HPD) since 1984. In May 1995, Jane went on maternity leave and gave birth to a child. On or about July 26, 1995, Jane went to Defendant-Appellee Department of Health of the City and County of Honolulu (the DOH), at 840 Iwilei Road, for a mandatory physical examination to determine if she was fit to return to duty.
On July 23, 1997, Jane submitted a medical tort claim to the Medical Claims Conciliation Panel (MCCP) against a physician employed by the DOH whom she named.
On July 24, 1997, Jane filed a Complaint in the circuit court against Defendants-Appellees City and County of Honolulu (the City), the DOH, Salvatore Lanzilotti (Lanzilotti), in his official capacity as Director of the DOH, and various Doe Defendants (collectively Defendants-Appellees). In her Complaint, Jane identified the physician only as "Dr. John Doe."
Through discovery, Jane learned (1) the name of the physician who examined her and (2) that the physician she named in her medical tort claim to the MCCP was not the physician who examined her. In the MCCP proceedings, Jane unsuccessfully attempted to substitute the name of the physician who examined her in place of the name of the physician she erroneously named. According to Jane's attorney, the MCCP "required the Respondent's consent to substitution" and "the Respondent objected to the substitution." On March 10, 1998, before a hearing was conducted by the MCCP and before the MCCP rendered any official decision, Jane voluntarily withdrew her medical tort claim to the MCCP against the erroneously-named physician. Jane did not submit a new medical tort claim to the MCCP against the physician who examined her because she concluded that the applicable statute of limitation had expired and she was barred from submitting a new statement of claim to the MCCP.
Jane's Complaint alleges in relevant part as follows:
I. NATURE OF CASE
1. This is a case about sexual assault and battery, sexual harassment, intentional infliction of emotional distress, invasion of privacy, false imprisonment, negligent retention and negligent hiring as a result of the employment of a physician by DOH. As a Police Officer of the Police Department of [the City] . . . , [Jane] was required to pass a physical examination conducted by a physician [referred to hereinafter as "Dr. John Doe"] in DOH for clearance to return to duty following a maternity leave. After being told that [Jane]'s own physician had examined her breasts two months prior, still, Dr. John Doe conducted an unnecessary, improper and intrusive examination of [Jane]'s breasts. Dr. John Doe fondled [Jane]'s breasts and squeezed her nipples until they squirted milk in his face.
II. JURISDICTION
8. [Doe Defendants] are sued herein under fictitious names because, except for JOHN DOE
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