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Doe v. City and County of Honolulu3/15/2000
harassment, invasion of privacy, and/or false imprisonment fall within the definition of a "medical tort" and Defendants-Appellees are "health care providers," the remaining claims of violation of public policy, negligent hiring/retention, and infliction of emotional distress should not be dismissed for lack of subject matter jurisdiction. At the July 22, 1998 hearing, Jane noted her willingness to drop a count if it was "hurtful to the case." In other words, she consented to the dismissal of all of the medical tort claims.
On July 22, 1998, the circuit court heard the Motion to Dismiss. The relevant sections of the transcript report as follows:
THE COURT: The problem is whether or not the inclusion of that negligence cause of action brings at least part of the Complaint within the definition of a medical tort which then would require the MCCP proceeding for this Court to have jurisdiction.
[COUNSEL FOR PLAINTIFF]: We don't believe that it does, Your Honor, because it all falls from an assault and battery basically. And if Your Honor feels that the negligence count is hurtful to the case, we would be more than happy to drop it.
[DEPUTY CORPORATION COUNSEL]: . . .
. . . What we have is one action and it's clearly a negligence medical malpractice type of case where they're claiming that there's a misdiagnosis and an unnecessary breast exam in the treatment and medical exam of the Plaintiff. And that's all you have, and the rest of the things are derivative from that one particular negligent tort.
. . . Now, clearly they have to be -- the claims would have to be dismissed for them to go back and get the right doctor so I'd ask that the entire action be dismissed and solely for the reason that it's one occurrence. . . .
THE COURT: Well, the only motion before me this morning is a motion to dismiss based on failure to comply with the Medical Claim Conciliation Panel requirement which is set forth in Chapter 671.
The Court does find that at least insofar as a negligence cause of action is pled in this Complaint that there is a claim or a cause of action presented in the Complaint which comes within the definition of a medical tort. And, therefore, as a result of that and the failure to comply with the MCCP procedure, that this Court lacks jurisdiction to entertain the Complaint. And, therefore, dismisses the Complaint, dismisses it without prejudice.
[Counsel for Plaintiff], what you do from this point forward in order to comply or refile, that's a matter of professional judgment. But, this motion is granted, dismissed without prejudice.
[COUNSEL FOR PLAINTIFF]: May I ask the Court a question. As far as Your Honor is concerned, when you say the negligence cause of action, you're talking about the misdiagnosis.
THE COURT: No, I'm not making any finding. I'm taking your allegation which is negligence cause of action specifically pled as negligence, negligent infliction of emotional distress. It's specifically pled.
[COUNSEL FOR PLAINTIFF]: Right. But that is only one count.
THE COURT: Right. And that allegation of negligence within that cause of action brings the Complaint within the confines of the medical tort definition of Chapter 671.
[COUNSEL FOR PLAINTIFF]: May I ask for further clarification. I'm concerned about a potential S-O-L. The incident was July 26, 1995.
THE COURT: I'm not reaching any questions with regards to statute of limitations.
The circuit court's August 6, 1998 Order states in pertinent part:
The Court having considered the motion and memoranda, exhibits submitted,
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