Hawaii Supreme Court Recognizes Loss Of Chance Doctrine In Medical Malpractice Death Claims

The Supreme Court of the State of Hawai’i (“Hawaii Supreme Court”) held in its opinion filed on May 5, 2020: “while a “loss of chance” is not a separate compensable injury under Hawaiʻi law, a factfinder in a medical malpractice case involving the death of a patient may consider a loss of chance theory in determining legal causation under our traditional framework for negligence, which considers whether an actor’s conduct was a substantial factor in bringing about the harm … We also clarify that the pleading requirements before MCCPs [medical claim conciliation panels], now renamed MICPs [medical inquiry and conciliation panels], are intended to be relatively simple, requiring only a brief description of the facts underlying the claim, not a detailed legal theory of the case … We hold further that the circuit court erred in holding that the Estate failed as a matter of law to present sufficient evidence of causation to make out a claim.”

The Hawaii Supreme Court explained that “the defendant’s conduct is the legal cause of the harm to the plaintiff if (a) the actor’s conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which [the actor’s] negligence has resulted in the harm.”

Substantial Factor Test

Under the first prong of the test (the “substantial factor” prong), the defendant’s conduct need not have been the whole cause or the only factor bringing about the plaintiff’s injuries in order to be their legal cause. However, the conduct must have been more than a negligible or trivial factor in causing the harm. In other words, a substantial factor is one that a reasonable person would consider to have contributed to the harm.

The Hawaii Supreme Court stated, “we have rejected other tests for legal causation, particularly the widely-used “‘but for’ rule[,]” under which “the defendant’s conduct is a cause of the event if the event would not have occurred but for that conduct[.]” … We have also never required plaintiffs to prove that “the defendant’s negligence more likely than not caused the ultimate outcome[.]” … Rather, the [] test “contemplates a factual determination that the negligence of the defendant was more likely than not a substantial factor in bringing about the result complained of.””

The Hawaii Supreme Court stated, “in order to prevail on a medical negligence claim, a plaintiff must prove, by a preponderance of the evidence, that a health care provider defendant, acting in the defendant’s professional capacity, committed a negligent act or omission which was a substantial factor in bringing about the death of, or injury or other damage to, a patient.”

Loss Of Chance Doctrine Under Hawaiʻi Law

The Hawaii Supreme Court stated that in Hawaii medical malpractice cases in which the patient has died as a result of the alleged negligence (the Hawaii Supreme Court stated that it was not addressing situations in which a patient survives despite the alleged negligence of a medical professional, but the plaintiff nonetheless claims that medical negligence deprived the patient of a better recovery), it was adopting a “substantial chance” approach, which requires the plaintiff to present evidence that a substantial or significant chance of survival or better recovery was lost.

The Hawaii Supreme Court held: “in jurisdictions that use a substantial factor test for causation, it is not necessary to recognize a loss of chance as a separate compensable injury. Nor is it necessary to abandon or adjust the substantial factor test for negligence in order to account for negligence by a medical professional that allegedly reduces a plaintiff’s chance of survival. Rather, the substantial factor test is adaptable enough to apply to such cases without any need to change traditional negligence rules. Thus, we hold that, under Hawaiʻi law, “loss of chance” is not an independent cause of action, but is a relevant consideration in determining whether a defendant’s negligence was a substantial factor in causing the plaintiff’s injury … loss of chance is not a distinct cause of action, but a factor that may be relevant in determining whether a defendant’s negligence was a substantial factor in causing a plaintiff’s harm.”

Source Estate of Robert Frey v. Robert P. Mastroianni, M.D., SCWC-14-0001030.

If you or a loved one may have been injured as a result of medical malpractice in Hawaii or in another U.S. state, you should promptly find a Hawaii medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Saturday, May 9th, 2020 at 5:29 am. Both comments and pings are currently closed.


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