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Doe v. City and County of Honolulu3/15/2000
to filing a complaint in the courts of this state, first be submitted to an MCCP. In our view, subjecting all claims of medical malpractice to the mandates of HRS §§ 617-12 and 617-16 is consistent with both the language and legislative intent underlying HRS ch. 671.
The purpose of this bill is to provide for a medical malpractice insurance system which will: (1) stabilize the cost of medical malpractice insurance and insure the availability of such insurance at a reasonable cost; (2) decrease the costs of the recovery system for medical malpractice and improve efficiency of its procedures; (3) impose appropriate sanctions on errant health care providers; (4) provide and improve the machinery for resolving patient grievances against health care providers. . . . Sen. Stand. Comm. Rep. No. 617-76, in 1976 Senate Journal, at 1182.
Accordingly, inasmuch as Counts I through IV and Count VI of Dubin's first amended complaint allege "error or omission in professional practice by a health care provider" that were, allegedly, a legal cause of Dubin's injuries, they must be construed as medical torts for purposes of HRS ch. 671, and, therefore, the circuit court correctly ruled that Dubin could not proceed with those counts of his lawsuit without first submitting them for consideration by an MCCP as required by HRS §§ 671-12 and 671-16. Id. at 194-95, 970 P.2d at 502.
DISCUSSION
A.
Jane argues that her Complaint alleges non-medical tort "claims . . . for sexual assault, battery and harassment, and other related intentional torts," as well as constitutional claims and claims based on vicarious liability.
Jane also argues that the definition of "medical tort" does not include "negligent acts of a medical professional that do not occur in the provision of professional service." In her view,
Dr. John Doe's actions were not within the structures of his performance of medical duties to the patient. Moreover, Dr. John Doe's ctions were not an error or omission in professional practice as they were not related to "professional practice." In fact, Dr. John Doe's actions were clearly more than unprofessional and unrelated to his duties as a medical professional.
Alternatively, Jane argues that the circuit court erred in concluding that, because some of her claims against Defendants-Appellees were "medical torts" required by HRS Chapter 671 to be submitted to the MCCP prior to filing the Complaint, it lacked jurisdiction to consider her entire Complaint. Jane contends that the circuit court erred by not allowing her to voluntarily withdraw those medical tort claims required to be submitted to the MCCP and thereby remedy the lack of subject matter jurisdiction.
We conclude that except for "COUNT IX - PUNITIVE DAMAGES," which is not really a "count," all of the various claims alleged by Jane in the other eight counts of her Complaint are "medical torts" that were required to be submitted to the MCCP before Jane could lawfully file this lawsuit.
The statutory definition of a "medical tort" includes intentional acts and negligent acts and acts for proper purposes and acts for improper purposes. Thus, in Garcia v. Kaiser Foundation Hospitals, 90 Hawaii 425, 438, 978 P.2d 863, 876 (1999), the Hawaii Supreme Court, citing Dubin, 89 Hawaii at 194, 970 P.2d at 502, stated that the phrase "'medical tort' encompasses all errors or omissions by a health care provider in professional practice resulting in injury to a patient."
In Indiana, the Medical Malpractice Act required the submission of "malpractice" claims to the medical review panel before the commencement of an action in court. In Collins
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