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Doe v. City and County of Honolulu3/15/2000
and heard arguments of counsel,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
The Defendants Motion to Dismiss is Granted Without Prejudice as the Court finds that at least insofar as a negligence cause of action is pled in the Complaint, i.e., negligent infliction of emotional distress, 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.
The January 22, 1999 Judgment went much further than the August 6, 1998 Order. The January 22, 1999 Judgment states in relevant part as follows:
ursuant to the ORDER . . . filed on August 6, 1998, Judgment is hereby entered in favor of Defendants and against Plaintiff on all of the claims in the Complaint filed herein on July 24, 1997. There are no remaining claims or parties in this suit.
This Court expressly directs that said Judgment is entered as a final judgment as there is no just reason for delay.
ISSUES ON APPEAL
1. Did the circuit court err when it dismissed without prejudice one or more counts alleged in Jane's Complaint?
2. Did the circuit court err when it dismissed all of the counts alleged in Jane's Complaint?
STANDARD OF REVIEW
The circuit court's dismissal of Jane's Complaint presents a question of law, reviewable de novo. Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 239, 842 P.2d 634, 637 (1992), aff'd., 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). Questions of law are freely reviewed upon appeal under a right/wrong standard of review. Maile Sky v. City and County of Honolulu, 85 Hawaii 36, 39, 936 P.2d 672, 675 (1997).
The review of a motion to dismiss is
ased on the contents of the complaint, the allegations of which we accept as true and construe in the light most favorable to the plaintiff. Dismissal is improper unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
However, "when considering a motion to dismiss pursuant to Rule 12(b)(1) the trial court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." Norris, 74 Haw. at 239, 842 P.2d at 637 (citations and brackets omitted).
RELEVANT STATUTES
HRS Chapter 671 (1993) states in relevant part as follows:
§ 671-1 Definitions. As used in this chapter:
"Health care provider" means a physician or surgeon licensed under chapter 453, a physician and surgeon licensed under chapter 460, 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 such 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.
§ 671-12 Review by panel required; . . . . (a) Effective July 1, 1976, any person or the person's representative claiming that a medical tort has been committed shall submit a statement of the claim to the [MCCP] before a suit based on the cl
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