Medical liability reform bill killed

By Derrick DePledge

The state House yesterday effectively killed a medical-malpractice liability reform bill, as lawmakers contended it was not the answer to the state’s shortage of medical specialists in rural areas and on the Neighbor Islands.

State lawmakers will consider student loan repayment and stipends for doctors and dentists who work in poor and rural areas, along with tax incentives for firms that offer medical and healthcare services in newly created health enterprise zones.

Lawmakers also will discuss resolutions calling for an audit of the Hawai’i Medical Service Association to see if reimbursement payments to doctors are adequate. They will consider asking the Legislative Reference Bureau to study whether medical-malpractice reform would have an impact on access to healthcare.

Doctors want a cap on noneconomic damages, such as for emotional distress and loss of companionship, in malpractice lawsuits by patients to contain unpredictable jury awards. The state has a $375,000 cap on pain and suffering, but doctors believe lawyers can easily get around the cap by claiming other types of emotional injuries.

Doctors believe that a cap on noneconomic damages will lower malpractice insurance premiums and reduce some of the uncertainty about malpractice lawsuits, which could help convince more doctors to practice in rural areas or work on-call and emergency-room shifts.

State House and Senate leaders had said at the start of session in January that malpractice reform would likely not pass because doctors have not conclusively linked reform to either lower malpractice insurance premiums or a reduction in the shortage of specialists in poor and rural areas.

The Hawai’i Medical Association, which represents doctors, chose to fight for reform despite the odds and portrayed high malpractice costs as the primary reason many doctors are leaving the state or declining on-call and emergency room shifts. HMA, with the help of a $100,000 grant from the American Medical Association, held a series of community forums and sponsored news media advertising.

Doctors found a sympathetic audience on talk radio and on newspaper editorial pages, which lifted malpractice reform over other issues this session even though it failed to move forward in both chambers.


State Rep. Josh Green, D-6th (N. Kona, Keauhou, Kailua, Kona), a Big Island doctor and the chairman of the House Health Committee, added malpractice reform provisions into an unrelated mental health court bill at a committee hearing on Wednesday. But after a private caucus yesterday, majority Democrats found there were not enough votes to advance the bill. The House agreed by voice vote to send it back to committee.

“You win some. You lose some. We will accomplish good things still this session on healthcare reform, and I’m optimistic we’ll all come together,” Green told his colleagues on the House floor.

Green has said that higher reimbursement payments and financial incentives for doctors are needed in combination with malpractice reform to address gaps in healthcare.

Green added he would continue to work on a compromise between doctors and lawyers on malpractice reform. In private caucus, and in an interview afterward, Green also recognized that state Rep. Tommy Waters, D-51st (Lanikai, Waimanalo), a defense attorney and the chairman of the House Judiciary Committee, had been unfairly portrayed as the sole obstacle to reform.

Waters had refused to hear the malpractice reform bill this session after it failed in his committee last session. The state Senate Health Committee heard the reform bill and declined to move it forward.

“My feelings haven’t changed,” Waters said. “I honestly don’t believe tort reform will solve the problems we’re facing in the medical community.”

But Waters agreed to sponsor the resolution calling for the Legislative Reference Bureau study of tort reform and said he will be the first to admit he is wrong if it shows that reform will improve access to healthcare.

AMA identified 22 states nationally as crisis states on malpractice, but Hawai’i did not make the list. AMA has recently stopped categorizing states and did include Hawai’i malpractice insurance costs in an anecdote in a February report on malpractice reform.

“We’re disappointed,” Paula Arcena, HMA’s executive director, said of the House’s decision. “We felt that there was some meaningful discussion occurring. We feel that medical liability reform is an important piece to solving our healthcare problems.

“And, absent this piece, unfortunately, the Legislature has decided to perpetuate one more barrier to physicians providing care to patients.”

Arcena said there have already been enough studies on the potential for malpractice reform to lower malpractice insurance premiums, and she asked lawmakers to speak with people in their districts about access to doctors.


Lawyers have argued that patients harmed by negligent doctors should be able to fully recover both economic damages, such as lost wages and medical bills, and noneconomic damages for emotional injuries. Lawyers have also cited statistics that show that the number of doctors in Hawai’i has increased while the number of malpractice claims has decreased over the past decade, raising doubt about whether there is a doctor shortage or a flood of malpractice lawsuits.

“The caps are not going to solve the shortage of specialists on the Neighbor Islands,” said Bob Toyofuku, a lawyer and lobbyist for the Consumer Lawyers of Hawai’i. “We have to look at other solutions.”

But some House lawmakers, fueled by the public outcry generated by HMA, talk radio and newspaper editorials, described the issue as about change and whether House leaders were being responsive.

“This motion to recommit is a motion to stifle debate and consideration,” said state Rep. Della Au Belatti, D-25th (Tantalus, Makiki, McCully), who wants higher reimbursement payments for doctors. She cautioned lawmakers not to squander the opportunity to improve healthcare access.

“The call for change will echo far beyond these chambers and the public may dare well respond to that call,” she said. “I do not want it on my conscience, on my record, that I shirked my duty.”

Several House Republicans also opposed the decision to send the reform bill back to committee.

“I think it’s a crime what we’re doing here,” said state Rep. Colleen Meyer, R-47th (La’ie, Hau’ula, Punalu’u).

She said, “It’s as if we are deaf and dumb. We don’t listen. We don’t read the papers. We don’t know what’s going on.”

House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), talking to reporters afterward, described the behavior of some lawmakers on the issue as “acting.” Asked whether he thought some were grandstanding, he said:

“That’s a very good adjective to use.”

Reach Derrick DePledge at

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