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                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         05-MAY-2020
                                                         09:03 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---O0O---
________________________________________________________________

                      ESTATE OF ROBERT FREY,
                 Petitioner/Plaintiff-Appellant,

                                 vs.

                  ROBERT P. MASTROIANNI, M.D.,
                 Respondent/Defendant-Appellee.
________________________________________________________________

                          SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CIVIL NO. 07-1-0206(1))

                            May 5, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY WILSON, J.

          Following the death of Robert Frey (“Frey”) in 2004,

his estate and several family members initiated proceedings

against Dr. Robert Mastroianni (“Dr. Mastroianni”) before a

medical claim conciliation panel (“MCCP”), claiming that Dr.

Mastroianni’s negligence was the cause of Frey’s death.       The

case eventually led to a 2014 trial in the Circuit Court of the



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Second Circuit (“circuit court”).      After the sole remaining

plaintiff, the Estate of Robert Frey (“the Estate”), rested its

case, the circuit court granted judgment as a matter of law to

Dr. Mastroianni.

            The circuit court held that it had no jurisdiction

over the Estate’s “loss of chance” claim—that is, its claim that

Dr. Mastroianni’s negligence caused Frey to lose a chance of

recovery or survival—because such a claim was not raised before

the MCCP.    And it held that the Estate had failed, as a matter

of law, to present sufficient evidence of causation to make out

a claim.    The Intermediate Court of Appeals (“ICA”) affirmed.

Estate of Frey v. Mastroianni, No. CAAP-XX-XXXXXXX, 2018 WL

3199216, at *12 (App. June 29, 2018) (mem.).      The ICA concluded

that “loss of chance” claims seek recovery for a “separate

compensable injury[,]” and that the Estate’s failure to raise

loss of chance before the MCCP deprived the circuit court of

jurisdiction.    Id. at *7.   It also concluded that, during trial,

the Estate had “failed to provide any expert medical testimony

establishing that Dr. Mastroianni caused Frey’s death ‘to a

reasonable degree of medical probability.’”      Id. at *11.

            We accepted certiorari to resolve the question of

whether the “loss of chance” doctrine is consistent with Hawaiʻi

law and to provide additional guidance regarding the MCCP

pleading process.    In brief, we hold that while a “loss of


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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.     See Mitchell v. Branch, 45

Haw. 128, 132, 363 P.2d 969, 973 (1961).      We also clarify that

the pleading requirements before MCCPs, now renamed MICPs, 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.    Thus, we hold that the circuit court

had jurisdiction over the Estate’s negligence claim, including

its loss of chance arguments, in the present 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.     We remand the case for a new

trial in light of this opinion.

                            I.   BACKGROUND

A.   Medical Claims Conciliation Panel Proceedings

          On June 13, 2006, the Estate and several of Robert

Frey’s family members (collectively, “the Claimants”) submitted

a letter (“the Claim Letter”) to a medical claim conciliation




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panel.1     In the Claim Letter, the Claimants alleged that Frey

died as a result of the negligence of his treating physician,

Dr. Mastroianni.      The Claim Letter made the following factual

and legal allegations and demand:

                   Pursuant to Hawaii Revised Statutes, 671-1, et seq.,
             Claimants . . . hereby present a claim for damage resulting
             from Robert Frey’s death, which occurred as a result of the
             negligence of the following respondent:

                   Robert P. Mastroianni, M.D.

                   . . .

                   The Claimants are the estate of Robert Frey, and his
             parents, brother, and sisters as individuals. Robert Frey
             was born on March 2, 1946. He died on June 15, 2004. He
             was fifty-eight years old at the time of his death.
             Respondent Robert P. Mastroianni, M.D., is a medical doctor
             who provided care to Robert Frey.

                   The background and circumstances of this claim are as
             follows: On June 11, 2004, Robert Frey was visiting Maui
             and staying with a friend. Sometime during that day Mr.
             Frey inadvertently ingested an immense dose of gamma
             hydroxy butyrate (GHB). The GHB was contained in a juice
             bottle in the refrigerator of his friend’s home and Mr.
             Frey used it, thinking that it was just juice, to make a
             smoothie in the blender. Thereafter, as a result of the
             effects of the GHB, Mr. Frey fell while within the
             residence, apparently hitting his head on a table. He was
             found unconscious by his friend and another person. An
             ambulance was eventually called and Robert Frey was taken


      1
             At the time, Hawaiʻi Revised Statutes (“HRS”) § 671-12(a) (1993)
provided:

             [A]ny person or the person’s representative claiming that a
             medical tort has been committed shall submit a statement of the
             claim to the medical claim conciliation panel before a suit based
             on the claim may be commenced in any court of this State. Claims
             shall be submitted to the medical claim conciliation panel in
             writing. The claimant shall set forth facts upon which the claim
             is based and shall include the names of all parties against whom
             the claim is or may be made who are then known to the claimant.

      In 2012, the legislature amended HRS Chapter 671 to re-designate MCCPs
as “medical inquiry and conciliation panels” (“MICP”) and “claims” as
“inquiries.” 2012 Haw. Sess. Laws Act 296, § 4 at 1006-15.




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          to the emergency room at the Maui Memorial Medical Center.
          From the emergency room, Mr. Frey was transferred to the
          intensive care unit. Respondent Robert P. Mastroianni,
          M.D. was his treating physician. Over the next two days,
          Mr. Frey emerged from his coma and began to recover. On
          June 13, 2004, Dr. Mastroianni discharged Mr. Frey in
          “stable condition,” on oral antibiotics with a diagnosis of
          “bronchitis,” despite the facts that (1) it was documented
          that Mr. Frey had vomited several times while unconscious,
          (2) his most recent chest x-ray (of the day before) showed
          evidence of developing pneumonia, (3) he had a fever of 102
          degrees, and (4) he was coughing. Dr. Mastroianni did not
          order new x-rays on the day of Mr. Frey’s discharge.
          During the evening of June 13th Robert developed difficulty
          breathing, and the next morning he was rushed back to the
          hospital. Following treatment in the emergency room, he
          was admitted with a diagnosis of pneumonia, hypoxia,
          sepsis, and severe metabolic acidosis. His condition
          quickly deteriorated, and at 11:05 a.m. on Tuesday June 15,
          2006 [sic], Mr. Frey died. The pathologist who conducted
          the autopsy listed the immediate cause of death as severe
          necrotizing pneumonia, with contributing conditions of
          sepsis and gamma hydroxy butyrate intoxication.

                Claimants allege that Robert P. Mastroianni, M.D.,
          fell below the applicable standard of care in multiple
          respects, including but not limited to the following: (1)
          failing to start Mr. Frey on broad spectrum intravenous
          antibiotics soon after the first admission, when it became
          clear that he had pneumonia; (2) discharging the patient on
          June 13th without determining the reason for his fever; (3)
          not repeating the chest X-ray on June 13th, which would
          clearly have shown pneumonia; and (4) misdiagnosing Mr.
          Frey’s condition as bronchitis, despite the evidence of his
          chest x-rays, his fever of 102, and his probable aspiration
          of vomit while he had been unconscious.

                If Dr. Mastroianni had administered antibiotics in
          the hospital on June 11th or 12th, repeated the chest x-ray
          on June 13th, and kept Mr. Frey in the hospital for further
          observation and treatment, then with the benefit of closer
          observation and care it is likely that he would have
          survived.

                Wherefore, Claimants demand judgment against the
          above-stated respondent for such general and special
          damages to which Claimants shall be entitled pursuant to
          the proof adduced at the hearing which is sufficient to
          invoke the jurisdiction of the Circuit Court of the State
          of Hawaii, together with costs of suit, pre-judgment and
          post-judgment interest, and such further relief, both legal
          and equitable, as this panel deems appropriate.

On February 28, 2007, the Claimants submitted a pre-hearing

statement to the MCCP which repeated these allegations.


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           In April 2007, the MCCP decided in favor of the

Claimants.     After the MCCP’s decision, Dr. Mastroianni took the

position that he would not pay the award.2

B.   Circuit Court Proceedings

     1.   Pleadings

           On June 12, 2007, the Claimants filed a complaint in

the circuit court against Dr. Mastroianni.          The complaint

alleged one count of “Negligen[c]e (Medical Malpractice)” and

one count of “Wrongful Death[.]”          As to the negligence count,

the complaint alleged facts mirroring those in the Claim Letter

and claimed that “[t]he medical care rendered by [Dr.

Mastroianni] to Robert Frey fell below the applicable standard

of care, and constituted a lack of due care and a negligent act

on the part of [Dr. Mastroianni.]”          The complaint alleged that,

“[h]ad [Dr. Mastroianni] not violated the applicable standard of

medical care . . . , Mr. Frey’s life could have been saved[,]”

and that, “[a]s a direct result of [Dr. Mastroianni’s]

negligence, Robert Frey experienced severe pain and suffering

and then died.”     As to the wrongful death count, the complaint

claimed that Dr. Mastroianni’s “negligent actions were a

substantial factor in causing Robert Frey’s death[,]” or, in the


      2
            If a party to an MCCP hearing rejects the decision of the MCCP,
the claimant is then permitted to institute litigation based on the claim in
an appropriate court. HRS § 671-16(a) (Supp. 2003).




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alternative, that “[Dr. Mastroianni’s] negligent treatment

deprived Robert Frey of a significant improvement in his chances

for recovery, and/or resulted in a loss of an increased chance

of recovery, which loss of chance is compensable in and of

itself.”    The complaint alleged that Dr. Mastroianni was liable

to the Estate for Frey’s “pain and suffering, loss of enjoyment

of life, economic loss, and other damages” and to the other

Claimants for “their loss of consortium, emotional distress,

economic loss, and other damages.”

            Dr. Mastroianni filed an answer on July 27, 2007 in

which he denied all allegations of negligence.           The trial date

was continued multiple times over the following years, during

which time all of Frey’s family members’ claims against Dr.

Mastroianni were dismissed with prejudice, leaving the Estate as

the sole plaintiff.

     2.    Trial Testimony

            Jury trial commenced on July 7, 2014.3         Along with two

lay witnesses, the Estate called three expert witnesses:             Dr.

Peter Schultz, Dr. Bradley Jacobs, and Dr. Darvin Scott Smith.4




     3
            The Honorable Rhonda I.L. Loo presided.
      4
            By permission of the court, the testimony of Dr. Jacobs and Dr.
Smith was presented in the form of depositions read out in court by the
attorneys.




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          The Estate’s first expert witness was Dr. Peter

Schultz, an internal medicine doctor from California.           Dr.

Schultz testified that he had reviewed the medical records for

Robert Frey, as well as police reports, witness statements, and

an ambulance report.    He testified that, in his opinion, it was

not appropriate for Dr. Mastroianni to discharge Frey on June

13, 2004, and that the decision to do so fell below the standard

of care expected of a physician.        Dr. Schultz testified that

this opinion was “based on looking at the totality of the

clinical picture, all of the factors that led up to his being

hospitalized and his condition at the time -- at the day and

time of the discharge.”    He stated that, if he had been the

treating physician in that situation, he would have diagnosed

aspiration pneumonia, and that, in his opinion, “it fell below

the standard of care to not suspect pneumonia in this case.”

Dr. Schultz was asked what would have been different if Frey had

stayed in the hospital, rather than being discharged, and he

responded that Frey “would have received treatment that might

have included things to help him survive until the antibiotics

could take effect.”    When asked to elaborate on the specific

measures he would have taken, Dr. Schultz responded:

                Well, the body’s own defenses and the antibiotics
          that are used are -- do take time to work. They need to be
          given the time. And when you have an overwhelming
          infection, sometimes it overwhelms both of those measures -
          - the body’s own immune system and the antibiotics --
          before they have a chance to be effective.



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                Sepsis, in particular, can progress very quickly.
          And time is very important in effectively treating it. If
          it progresses to the way we know it eventually did with Mr.
          Frey, and had he stayed in the hospital, he could have been
          treated much more quickly than he eventually was after he
          was discharged from the hospital. The measures that could
          have -- the measures could have included aggressive
          intravenous fluid, which would help maintain his blood
          pressure. When he came back very sick and eventually died,
          he had a very low blood pressure. There are medications
          that help tighten up the arteries and raised the blood
          pressure that are sometimes used in severe cases of sepsis.
          Those could have been started much sooner.

                They were eventually used. But by that time, it was
          too late. They could have been used earlier in the course.
          And had that happened, I think he -- there is a significant
          chance that he could have done better than he eventually
          did.

Dr. Schultz was also asked if Frey’s chances of survival would

have improved “significantly” if Frey had remained in the

hospital; he affirmed that such was his opinion.          He testified

further that the steps that were taken to combat sepsis when

Frey was readmitted to the hospital were taken too late, and

that “they could have done them in an earlier time, and his

chances would have been significantly improved.”          Finally, Dr.

Schultz was asked, “[a]re all the opinions that you’ve given in

court today to a reasonable degree of medical probability?”; he

responded, “[y]es, they are.”

          The Estate’s second expert witness was Dr. Bradley

Jacobs, a primary care doctor from California.         Dr. Jacobs

testified that he had reviewed the full medical reports for

Frey’s treatment.   He testified that he believed that Dr.

Mastroianni “did not abide by the standard of care in the


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treatment of Mr. Frey.”     Specifically, he testified that Dr.

Mastroianni “discharged the patient too early and gave him an

inappropriate diagnosis of bronchitis” and that Frey “should

have been kept in the hospital and monitored until it was clear

that his infection had resolved, that he was stable to be

discharged home.”   He stated that his conclusion that Frey

should not have been discharged was based on reviewing Frey’s

vital signs.   He also testified that Frey should have been

diagnosed with multi-lobar pneumonia.       Dr. Jacobs was asked,

“[a]re the opinions that you have expressed here today to a

reasonable degree of medical certainty?”; he responded, “[y]es.”

          The Estate’s third expert witness was Dr. Darvin Scott

Smith, an internal medicine doctor from California with a

specialty in infectious diseases and geographic medicine.             Dr.

Smith testified that, with regard to Frey’s case, he had

reviewed medical records and other relevant documents.           He

testified that Frey had contracted Klebsiella pneumonia by the

time he was discharged from the hospital on June 13, 2004, and

that the pneumonia had caused his sepsis and eventual death.            He

was asked what Dr. Mastroianni should have done on June 13, 2004

according to the standard of care, to which he responded:

                So based on the observed signs, the vital signs in
          particular, and his recent history of intubation,
          aspiration, and persistent fevers throughout his
          hospitalization, it would have been best practice and
          standard of care to continue to observe him closely and




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           address all of those observations in a timely way such that
           he would have responded appropriately.

Smith testified that it was his understanding that Dr.

Mastroianni did not do those things, and that, therefore, Dr.

Mastroianni did not comply with the standard of care when he

discharged Frey from the hospital.        Dr. Smith was also asked

about the care Frey received on June 12, 2004, and testified as

follows:

           And if care had been rendered in an ongoing fashion on that
           day, when it was apparent that it should have been,
           including perhaps, but not necessarily a follow-up x ray,
           but certainly administration of fluids to resuscitate him
           for low blood pressure and his high pulse, possibly empiric
           antibiotics for what I believe was an incipient but
           developing pneumonia observed originally, and oxygen
           supplementation either by nasal cannula, maybe a mask, or
           possibly even if he needed a later intubation.

                 But being in the hospital, under close observation,
           such that those steps could be taken, if indicated, would
           all ensure his safety.

He also testified that there would have been “an advantage” to

Frey being administered antibiotics in the hospital, rather than

at home following his discharge, and that Frey could have been

given fluids and other antibiotics at the hospital with the

correct diagnosis.     He testified that the main thing that would

have been different would have been the timing, and that

“[s]ooner is better when you’re dealing with a critical illness

like this.   And so he would have responded much better had that

been addressed right away.”      He was asked if “it was just too

late” when Frey was readmitted; he responded that he “believe[d]




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it was at that point.”    He testified that Dr. Mastroianni’s

diagnosis of bronchitis was incorrect.        Dr. Smith was asked,

“[a]re all of the opinions you’ve expressed today to a

reasonable degree of medical certainty?”; he responded, “[y]es.”

     3.   Judgment as a Matter of Law

          After presenting the testimony of its three expert

witnesses, the Estate rested its case.        Dr. Mastroianni moved

for judgment as a matter of law pursuant to Hawaiʻi Rules of

Civil Procedure (“HRCP”) Rule 50(a)5 “on the grounds that [the

Estate could not] establish with reasonable medical probability

that Dr. Mastroianni’s care and treatment of Robert Frey was the

cause of Mr. Frey’s death.”     In a memorandum in support of the

motion, Dr. Mastroianni argued that the Estate provided “no

expert testimony from any witness to establish the required

causal connection between any negligent act or omission by Dr.

Mastroianni and the death of Robert Frey” and that Dr.

Mastroianni was therefore entitled to a judgment in his favor on
     5
          HRPC Rule 50(a) (2000) provides:

          (1) If during a trial by jury a party has been fully heard on an
          issue and there is no legally sufficient evidentiary basis for a
          reasonable jury to find for that party on that issue, the court
          may determine the issue against that party and may grant a motion
          for judgment as a matter of law against that party with respect
          to a claim or defense that cannot under the controlling law be
          maintained or defeated without a favorable finding on that issue.

          (2) Motions for judgment as a matter    of law may be made at any
          time before submission of the case to   the jury. Such a motion
          shall specify the judgment sought and   the law and the facts on
          which the moving party is entitled to   the judgment.




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the wrongful death claim.   Dr. Mastroianni also argued that the

Estate was not permitted to pursue “a claim for lost chance of

survival under the loss of chance doctrine” because such a claim

“(1) was never presented at the MCCP proceeding that preceded

the filing of the complaint, thereby depriving [the] court of

jurisdiction to hear any such claim; (2) was not plead[ed] in

the complaint itself; and (3) is not a recognized cause of

action in this jurisdiction.”

           The Estate argued that there was sufficient evidence

of negligence to overcome a motion for judgment as a matter of

law.   It argued that Hawaiʻi had effectively adopted the loss of

chance doctrine, not as a separate cause of action, but as a

theory of causation that may result in an apportionment of

damages.   In the alternative, it argued that Dr. Mastroianni’s

negligence was a substantial factor leading to Frey’s death.       It

also argued that a plaintiff’s failure to plead a damages theory

at the MCCP is not a jurisdictional bar.

           The circuit court granted Dr. Mastroianni’s motion for

judgment as a matter of law.    The court stated that it

considered the Estate’s claim for loss of chance as separate

from the wrongful death claim, and found that, irrespective of

whether the claim is recognized as a valid claim under Hawaiʻi

law, it lacked subject matter jurisdiction over the claim

because the Estate failed to raise the claim before the MCCP.


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Turning to the wrongful death claim, the court found that none

of the Estate’s experts “opined to a reasonable degree of

medical probability as to whether Mr. Frey would have survived

had he not been discharged by Dr. Mastroianni.”           “Therefore,

even after considering the evidence in the light most favorable

to [the Estate],” the court found that “[the Estate could not]

establish with reasonable medical probability that Dr.

Mastroianni’s care and treatment of Robert Frey was the

proximate or contributory cause of Mr. Frey’s death.”             On July

25, 2014, the court entered judgment in favor of Dr. Mastroianni

on all claims.

C.   ICA Proceedings

            The Estate appealed the judgment to the ICA.           Estate

of Frey, 2018 WL 3199216, at *1.          The Estate argued that the

circuit court erred in finding it had no jurisdiction over a

loss of chance claim, in rejecting loss of chance as a theory of

causation, and in granting Dr. Mastroianni’s motion for judgment

as a matter of law.6      The ICA affirmed the trial court’s

judgment.    Id. at *12.



     6
            In its appeal to the ICA, the Estate also challenged several of
the circuit court’s evidentiary rulings. However, as none of its claims of
error with regard to the evidentiary rulings were raised in the Estate’s
application for writ of certiorari to this court, we do not address them.
See Hawaiʻi Rules of Appellate Procedure Rule 40.1(d)(1) (“Questions not
presented according to this paragraph will be disregarded.”).




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          The ICA concluded that, in medical malpractice actions

in which the patient dies, “the loss of chance doctrine is

consistent with Hawaiʻi law and should be recognized as a

separate compensable injury[.]”    Id. at *7 (citing McBride v.

United States, 462 F.2d 72 (9th Cir. 1972); Craft v. Peebles, 78

Hawaiʻi 287, 305, 893 P.2d 138, 156 (1995); Barbee v. Queen’s

Med. Ctr., 119 Hawaiʻi 136, 164, 194 P.3d 1098, 1126 (App.

2008)).   However, it held that the Estate did not assert a loss

of chance claim in its Complaint Letter to the MCCP.      Id.

Because it also concluded that “[d]ismissal of a civil suit

based on a medical tort claim is proper where a claimant files a

suit before first having submitted a statement of the claim to

the MCCP[,]” id. at *3 (citing Dubin v. Wakuzawa, 89 Hawaiʻi 188,

198, 970 P.2d 496, 506 (1998); Buenafe v. Kiehm, No. 29237, 2011

WL 1713493 (App. May 4, 2011) (SDO)), the ICA held that “the

circuit court did not err when it dismissed the Estate of Frey’s

loss of chance claim because it lacked subject matter

jurisdiction over the claim.” Id. at *7.

          With regard to Dr. Mastroianni’s motion for judgment

as a matter of law, the ICA held that “the expert medical

testimony” of the Estate’s witnesses “fell short of providing a

causal nexus between Dr. Mastroianni’s alleged negligence and

Frey’s death.”   Id. at *9.   The ICA stated:




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                The expert medical testimony provided at trial, at
          most, established that had Frey remained in the hospital,
          his chance of a better outcome would have improved. This
          evidence only indicates that it was merely a possibility
          that Dr. Mastroianni caused Frey’s death, “a showing which
          the Hawaiʻi supreme court explicitly found to be
          insufficient in Craft, 78 Hawaiʻi at 305, 893 P.2d at 156.”
          Barbee, 119 Hawaiʻi at 163, 194 P.3d at 1125.

Id. at *11.   The Estate, the ICA said, “failed to provide any

expert medical testimony establishing that Dr. Mastroianni

caused Frey’s death ‘to a reasonable degree of medical

probability.’”    Id.   Thus, it held that the circuit court did

not err in granting Dr. Mastroianni’s motion for judgment as a

matter of law.    Id.

D.   Supreme Court Proceedings

          The Estate filed an application for writ of certiorari

with the supreme court.      In its application, the Estate

presented the following questions:

                A. Whether it was error for the Intermediate Court
          of Appeals (“ICA”) in its Memorandum Opinion dated June 29,
          2018, to affirm the trial court’s written order granting
          Defendant’s Rule 50 motion for judgment as a matter of law
          on the grounds that the trial court lacked jurisdiction
          over a “loss of chance” claim, because the loss of chance
          claim had not been properly asserted in Plaintiff’s MCCP
          Claim Letter. This question is comprised of the following
          subsidiary questions:

                       1. Whether the legislature’s intent, in
                 establishing the MCCP (now the MICP) was to establish
                 an informal, advisory forum, or to establish a formal
                 setting with strict pleading standards.

                       2. Whether the legislature’s requirement, in
                 the MCCP/MICP statute (Haw. Rev. Stat. §671-12) that
                 “the Claimant . . . set forth facts upon which the
                 claim is based” was intended to require of Plaintiffs
                 a full, formal statement of all legal theories upon
                 which a claim may be based.




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                       3. Whether the “loss of chance” doctrine based
                 on medical negligence must be asserted as a separate
                 legal theory in an initial MCCP statement, or whether
                 it may be considered subsumed in a more general
                 medical negligence claim.

                       4. Whether the bar from subsequent litigation,
                 Haw. Rev. Stat. § 671-16, is to be construed to
                 preclude litigation on any theories of liability that
                 are not explicitly and meticulously pled by a
                 Plaintiff in its MCCP statement.

                 B. Whether it was error for the ICA to affirm the
           trial court’s written order finding that Plaintiff had not
           established causation under traditional doctrines of
           “substantial cause” and “but-for causation.”

The application was granted.

                       II.   STANDARDS OF REVIEW

A.   Jurisdiction

           “The existence of jurisdiction is a question of law

that this court reviews de novo under the right/wrong standard.”

Uyeda v. Schermer, 144 Hawaiʻi 163, 170, 439 P.3d 115, 122 (2019)

(quoting Bailey v. Duvauchelle, 135 Hawaiʻi 482, 488, 353 P.3d

1024, 1030 (2015)).

B.   Judgment as a Matter of Law

                 It is well settled that a trial court’s rulings on
           motions for judgment as a matter of law are reviewed de
           novo. When we review the granting of a motion for judgment
           as a matter of law, we apply the same standard as the trial
           court. A motion for judgment as a matter of law may be
           granted only when after disregarding conflicting evidence
           and indulging every legitimate inference which may be drawn
           from the evidence in the non-moving party’s favor, it can
           be said that there is no evidence to support a jury verdict
           in his or her favor.

Kawakami v. Kahala Hotel Inv’rs, LLC, 142 Hawaiʻi 507, 513, 421

P.3d 1277, 1283 (2018) (ellipses omitted) (quoting Miyamoto v.

Lum, 104 Hawaiʻi 1, 6-7, 84 P.3d 509, 514-15 (2004)).


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                           III.   DISCUSSION

A. Under Hawaiʻi law, loss of chance is not an independent cause
of action, but may be considered in determining legal causation.

     1.   The Mitchell Test

          “This court has long required a plaintiff to prove

that the defendant’s conduct was the legal cause of his or her

injuries as one of the prima facie elements of negligence.”

O’Grady v. State, 140 Hawaiʻi 36, 43, 398 P.3d 625, 632 (2017)

(citing Mitchell, 45 Haw. at 132, 363 P.2d at 973).          “We apply a

two-step analysis[,]” often referred to as “the Mitchell

test[,]” to determine “whether the defendant’s conduct was the

legal cause of the plaintiff’s injuries[.]”         Id. at 44, 398 P.3d

at 633.   The Mitchell test provides 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.

Id. (brackets omitted) (quoting Taylor-Rice v. State, 91 Hawaiʻi

60, 74, 979 P.2d 1086, 1100 (1999)).

          Under the first prong of the Mitchell 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.              State

v. Phillips, 138 Hawaiʻi 321, 352, 382 P.3d 133, 164 (2016)


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(ellipses omitted) (quoting Knodle v. Waikiki Gateway Hotel,

Inc., 69 Haw. 376, 390, 742 P.2d 377, 386 (1987)).      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.”   O’Grady, 140 Hawaiʻi at 47, 398 P.3d

at 636.

          In adopting a substantial factor test for legal

causation in negligence cases, the Mitchell court called it

“[t]he best definition and the most workable test of legal cause

so far suggested[.]”   45 Haw. at 132, 363 P.2d at 973.     We have

clearly and consistently reaffirmed its use since.      See, e.g.,

McKenna v. Volkswagenwerk Aktiengesellschraft, 57 Haw. 460, 465,

558 P.2d 1018, 1022 (1977) (“This test represents a realistic

approach to problems of causation, an area which has long been

complicated by a failure to distinguish between questions of

fact and policy concerns.”); Knodle, 69 Haw. at 390, 742 P.2d at

386 (“[W]e are convinced that ‘substantial factor’ is a phrase

sufficiently intelligible to furnish an adequate guide in

instructions to the jury, and that it is neither possible nor

desirable to reduce it to any lower terms.” (quoting W.P.

Keeton, Prosser and Keeton on the Law of Torts § 41, at 267 (5th

ed. 1984))); Montalvo v. Lapez, 77 Hawaiʻi 282, 289, 884 P.2d

345, 352 (1994) (quoting Knodle); O’Grady, 140 Hawaiʻi at 44-47,


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398 P.3d at 633-636 (discussing the history and policy

considerations underlying the test).

          As we have consistently applied the substantial factor

test, 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[.]”      Knodle, 69

Haw. at 389, 742 P.2d at 386 (brackets omitted) (quoting Keeton,

supra, at 266).   We have also never required plaintiffs to prove

that “the defendant’s negligence more likely than not caused the

ultimate outcome[.]”     Matsuyama v. Birnbaum, 890 N.E.2d 819, 829

(Mass. 2008) (explaining the “all or nothing” rule).      Rather,

the Mitchell 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.”

McKenna, 57 Haw. at 465, 558 P.2d at 1022 (emphasis added).

          The Mitchell test extends to negligence claims against

medical professionals.    Claims of medical negligence or medical

malpractice require a determination of legal causation.      See HRS

§ 671-1(2) (1993) (“‘Medical tort’ means professional

negligence, the rendering of professional service without

informed consent, or an error or omission in professional




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practice, by a health care provider, which proximately causes

death, injury, or other damage to a patient.” (emphasis added)).7

Therefore, in order to prevail on a medical negligence claim, a

plaintiff8 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.9

     2.    The Loss of Chance Doctrine Under Hawaiʻi Law

            In the context of medical negligence, “[a] number of

courts have recognized a lost opportunity (or lost chance) for

cure of a medical condition as a legally cognizable harm.”

Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 26 cmt. n. (Am. Law Inst. 2010).            The Supreme

Court of Minnesota explained the loss of chance doctrine as

follows:

                  Under the loss of chance doctrine, a patient may
            recover damages when a physician’s negligence causes the
            patient to lose a chance of recovery or survival. The
            fundamental principle underlying the loss of chance

     7
            The term “proximate cause” is synonymous with the term “legal
cause,” although this court has generally used the latter term. O’Grady, 140
Hawaiʻi at 43 n.3, 398 P.3d at 632 n.3.
      8
            Pursuant to HRS § 663-3(a) (2016), “[w]hen the death of a person
is caused by the wrongful act, neglect, or default of any person, the
deceased’s legal representative . . . may maintain an action against the
person causing the death or against the person responsible for the death.”
     9
            Additional elements are required to establish a claim of
negligent failure to obtain informed consent. See Barcai v. Betwee, 98
Hawaiʻi 470, 483-84, 50 P.3d 946, 959-60 (2002).




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          doctrine is that the plaintiff’s chance of survival itself
          has value. In a loss of chance case, the plaintiff must
          sustain the burden of proving that the defendant
          negligently deprived her of a chance of a better outcome.
          Assuming that the plaintiff satisfies that burden, then the
          defendant should be liable for the value of the chance he
          has negligently destroyed.

Dickhoff ex rel. Dickhoff v. Green, 836 N.W.2d 321, 329-30

(Minn. 2013) (citations and internal quotation marks omitted).

          The loss of chance doctrine “originated in

dissatisfaction with the prevailing ‘all or nothing’ rule of

tort recovery.”     Matsuyama, 890 N.E.2d at 829 (citing Joseph H.

King, Jr., Causation, Valuation, and Chance in Personal Injury

Torts Involving Preexisting Conditions and Future Consequences,

90 Yale L.J. 1353, 1365-66 (1981)).       As explained above, under

the “all or nothing” rule, which is not the law in Hawaiʻi, “a

plaintiff may recover damages only by showing that the

defendant’s negligence more likely than not caused the ultimate

outcome . . . ; if the plaintiff meets this burden, the

plaintiff then recovers 100% of her damages.”         Id.   The problem

with the “all or nothing” rule in the context of medical

negligence cases is that, “[s]o long as the patient’s chance of

survival before the physician’s negligence was less than even,

it is logically impossible for her to show that the physician’s

negligence was the but-for cause of her death, so she can

recover nothing.”     Id.




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          The origins of the loss of chance doctrine have been

variously attributed to “a handful of early tort cases, the

‘rescue’ doctrine, certain contract cases, the Restatement

(Second) of Torts [§ 323(a) (Am. Law Inst. 1965)], Hicks v.

United States[, 368 F.2d 626 (4th Cir. 1966)], and a 1981 Yale

Law Review article[, King, Causation, supra].”         Tony A. Weigand,

Loss of Chance in Medical Malpractice: The Need for Caution, 87

Mass. L. Rev. 3, 4-5 (2002) (footnotes omitted).          Hicks involved

facts comparable to those alleged in the present case.           In

Hicks, a patient was treated by a Navy physician, who diagnosed

her with gastroenteritis and released her with drugs to relieve

the pain and instructions to return in eight hours.          368 F.2d at

628.   The patient died later that day of an undiagnosed

intestinal obstruction.     Id. at 629.    The government argued

that, even if there was negligent misdiagnosis and mistreatment

on the part of the doctor, it was merely speculative that the

patient would have survived.      Id. at 632.    The U.S. Court of

Appeals for the Fourth Circuit, applying Virginia law, responded

to that argument in an oft-quoted passage:

                When a defendant’s negligent action or inaction has
          effectively terminated a person’s chance of survival, it
          does not lie in the defendant’s mouth to raise conjectures
          as to the measure of the chances that he has put beyond the
          possibility of realization. If there was any substantial
          possibility of survival and the defendant has destroyed it,
          he is answerable. Rarely is it possible to demonstrate to
          an absolute certainty what would have happened in
          circumstances that the wrongdoer did not allow to come to
          pass. The law does not in the existing circumstances
          require the plaintiff to show to a certainty that the


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          patient would have lived had she been hospitalized and
          operated on promptly.

Id.

          The vast majority of jurisdictions have considered

whether or not to adopt the loss of chance doctrine.          Lauren

Guest, David Schap & Thi Tran, The “Loss of Chance” Rule as a

Special Category of Damages in Medical Malpractice: A State-by-

State Analysis, 21 J. Legal Econ. 53, 59 (2015); Matsuyama, 890

N.E.2d at 828 n. 23 (compiling cases).        According to one recent

survey, as of July 2014, twenty-four states had adopted the

doctrine, seventeen had rejected it, four had deferred an

opinion on it, and five had yet to consider it at the level of

their highest state court.     Guest, supra, at 59.       Hawaiʻi is one

of the few states to not have definitively addressed loss of

chance.   Id.; Futi v. United States, No. 08-00403JMS/LEK, 2010

WL 2900328, at *26 (D. Haw. July 22, 2010).         Today, with the

benefit of the analysis of the many jurisdictions that have

considered this issue, we address the loss of chance doctrine

and its relationship to Hawaiʻi law for the first time.            However,

our opinion is limited to the present facts:         a medical

malpractice case in which the patient has died as a result of

the alleged negligence.     We do not address situations in which a

patient survives despite the alleged negligence of a medical

professional, but the plaintiff nonetheless claims that medical



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negligence deprived the patient of a better recovery.      See

Delaney v. Cade, 873 P.2d 175, 178 (Kan. 1994) (distinguishing

between “loss of survival” and “loss of better recovery” cases).

           Although nearly all the states have now considered the

loss of chance doctrine, there is not a clear consensus on its

merit; nor, among those states that have adopted it, is there

agreement on what form it should take.     See Dickhoff, 836 N.W.2d

at 334 (“[A] growing number of jurisdictions have adopted some

form of the doctrine, albeit with divergent rationales.”);

Matsuyama, 890 N.E.2d at 831 (“[C]ourts adopting [the doctrine]

have not approached loss of chance in a uniform way.”).      While

each state has approached the issue differently, “[g]enerally,

courts have taken three approaches to loss of opportunity

claims.”   Lord v. Lovett, 770 A.2d 1103, 1105 (N.H. 2001); see

Joseph H. King, Jr., “Reduction of Likelihood” Reformulation and

Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Mem.

L. Rev. 491, 505-09 (1998).

           The first is the “traditional” approach—that is, the

“all or nothing” rule under which the plaintiff must prove that,

as a result of the defendant’s negligence, the patient was

deprived of a greater than even chance of survival.      See Lord,

770 A.2d at 1105.   Courts adopting this approach have

essentially rejected the loss of chance doctrine in favor of

traditional rules of causation.    See, e.g., McAfee ex rel.


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McAfee v. Baptist Med. Ctr., 641 So.2d 265, 267 (Ala. 1994)

(declining to “recognize the ‘loss of chance doctrine’” or

“abandon Alabama’s traditional rules of proximate cause[,]”

which require the plaintiff in a medical malpractice case to

“prove that the alleged negligence ‘probably caused the injury’”

(quoting Parrish v. Russell, 569 So.2d 328, 330 (Ala. 1990)));

Mich. Comp. Laws Ann. § 600.2912a(2) (2010) (“In an action

alleging medical malpractice, the plaintiff cannot recover for

loss of an opportunity to survive or an opportunity to achieve a

better result unless the opportunity was greater than 50%.”);

Jones v. Owings, 456 S.E.2d 371, 374 (S.C. 1995) (“[W]e decline

to adopt the doctrine and maintain our traditional approach.”);

Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 407 (Tex.

1993) (“[W]e do not adopt the loss of chance doctrine as part of

the common law of Texas.”); Smith v. Parrott, 833 A.2d 843, 848

(Vt. 2003) (“The loss of chance theory of recovery is thus

fundamentally at odds with the settled common law standard . . .

for establishing a causal link between the plaintiff’s injury

and the defendant’s tortious conduct.”)

          States that have adopted this approach—in other words,

those that have outright rejected the loss of chance doctrine—

have expressed a reluctance to allow recovery based on a “mere

possibility” of harm when their traditional negligence rules

allow for recovery only when the negligence was more likely than


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not to have caused the injury.    McAfee, 641 So.2d at 267; see

Jones, 456 S.E.2d at 374.   Some have found that the loss of

chance doctrine is “fundamentally at odds with the requisite

degree of medical certitude necessary to establish a causal link

between the injury of a patient and the tortious conduct of a

physician.”   Jones, 456 S.E.2d at 374 (quoting Kilpatrick v.

Bryant, 868 S.W.2d 594, 602 (Tenn. 1993)); see Gooding v. Univ.

Hosp. Bldg., Inc., 445 So.2d 1015, 1019-20 (Fla. 1984).      Others,

while recognizing the value of the loss of chance doctrine, have

found it to be inconsistent with their medical malpractice

statutes and have held that any changes to medical malpractice

law are more appropriately left to legislative determination.

See Smith, 833 A.2d at 848.

          The shortcoming of the traditional approach, as

discussed above, is that it prevents a plaintiff with a fifty

percent or lower chance of survival from recovering anything as

a result of a medical professional’s negligence.      See Lord, 770

A.2d at 1105.   It has been criticized as arbitrary, unfair, and

contrary to the deterrence objectives of tort law.      Margaret T.

Mangan, The Loss of Chance Doctrine:     A Small Price to Pay for

Human Life, 42 S.D. L. Rev. 279, 302 (1997).     The so-called

“traditional” approach has no place in Hawaiʻi law, because, as

discussed above, we do not have a tradition of requiring

plaintiffs to prove that their harm was more likely than not the


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result of negligence by the defendant.     Rather, since the

earliest days of statehood, we have required plaintiffs to prove

that the defendant’s negligence was a substantial factor in

bringing about their harm.    Mitchell, 45 Haw. at 132, 363 P.2d

at 973.

          A second approach to the loss of chance doctrine is to

recognize “the lost opportunity for a better outcome” as itself

an injury for which a negligently injured patient may recover.

Lord, 770 A.2d at 1105-06.    States adopting this approach have

essentially created a new tort which recognizes the loss of

chance as a compensable injury distinct from other medical

malpractice claims.   See, e.g., United States v. Anderson, 669

A.2d 73, 77 (Del. 1995) (“[T]he loss of a chance of avoiding an

adverse consequence, increased risk, should be viewed as an

injury and be compensable[.]”); Mead v. Adrian, 670 N.W.2d 174,

178 (Iowa 2003) (“[T]he last-chance-of-survival doctrine is not

an alteration of the traditional rules for determining proximate

cause, but, rather, the creation of a newly recognized

compensable event to which those traditional rules apply.”);

Dickhoff, 836 N.W.2d at 334; Lord, 770 A.2d at 1106; Alberts v.

Schultz, 975 P.2d 1279, 1283 (N.M. 1999) (“[I]t is that chance

in and of itself—the lost opportunity of avoiding the presenting

problem and achieving a better result—that becomes the item of

value for which the patient seeks compensation.”); Mohr v.


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Grantham, 262 P.3d 490, 496 (Wash. 2011) (“[T]he loss of a

chance is the compensable injury[.]”).

            Those states that have adopted the separate injury

approach to the loss of chance doctrine have identified the

shortfalls in the traditional approach, and have noted that

patients regard “a chance to survive or achieve a more favorable

medical outcome as something of value.”     Dickhoff, 836 N.W.2d at

334; see Mohr, 262 P.3d 490.    This approach has been defended as

being “administrable and consistent[.]”     DeBurkarte v. Louvar,

393 N.W.2d 131, 137 (Iowa 1986) (quoting King, Causation, supra,

at 1378).   We read the ICA’s opinion in this case as following

the separate injury approach.    The ICA held that, “[w]hen one is

deprived of a chance to survive due to a medical provider’s

negligence, the actual loss suffered is the lost chance itself

and not the ultimate injury or death.”     Estate of Frey, 2018 WL

3199216, at *5.    The ICA stated that this approach was

“consistent with the traditional rules of negligence.”      Id.

However, the separate injury approach does not clearly follow

from Hawaiʻi’s traditional negligence rules based on the

substantial factor test, and it unnecessarily creates a new

cause of action when our negligence rules are already flexible

enough to address the problem at hand.     Rather than adopting

this incongruous approach, we look for guidance to a third




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approach taken by a number of states with negligence rules more

similar to our own.

            The third approach, a “middle ground” sometimes

referred to as the “relaxed standard of proof” approach,

“requires [the] plaintiff to present evidence that a substantial

or significant chance of survival or better recovery was lost.”

Pipe v. Hamilton, 56 P.3d 823, 827 (Kan. 2002) (quoting Delaney,

873 P.2d at 184-85).    This approach, also referred to as the

“substantial chance” approach, id. at 828, is consistent with

the Mitchell test and our long-established rules of negligence.

It has been adopted in a number of jurisdictions which, like

Hawaiʻi, use a substantial factor test for proximate causation.

See, e.g., Jones v. Montefiore Hosp., 431 A.2d 920, 923 (Penn.

1981); Thornton v. CAMC, 305 S.E.2d 316, 324-25 (W.Va. 1983);

Ehlinger v. Sipes, 454 N.W.2d 754, 758-59 (Wis. 1990); Rivers v.

Moore, Myers & Garland, LLC, 236 P.3d 284, 291 (Wyo. 2010).

            For example, under Pennsylvania’s negligence rules, as

under Hawaiʻi’s, “[p]roximate cause . . . may be established by

evidence that a defendant’s negligent act or failure to act was

a substantial factor in bringing about the harm inflicted upon a

plaintiff” and “this substantial factor need not be . . . the

only factor, i.e., ‘that cause which . . . produces the

result.’”   Jones, 431 A.2d at 923.   Applying these rules in a

medical malpractice action, the Supreme Court of Pennsylvania


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held that the jury should have been instructed to impose

liability if it decided that the defendants’ negligent conduct

“increased the risk of harm and that such increased risk was a

substantial factor in bringing about the harm actually

inflicted” upon the plaintiff.      Id. at 924.     Similarly, in

Wisconsin, “[t]o establish causation . . . , the plaintiff bears

the burden of proving that the defendant’s negligence was a

substantial factor in causing the plaintiff’s harm.”          Ehlinger,

454 N.W.2d at 758.    In a medical malpractice case, the Supreme

Court of Wisconsin held that,

          where the causal relationship between the defendant’s
          alleged negligence and the plaintiff’s harm can only be
          inferred by surmising as to what the plaintiff’s condition
          would have been had the defendant exercised ordinary care,
          to satisfy his or her burden of production on causation,
          the plaintiff need only show that the omitted treatment was
          intended to prevent the very type of harm which resulted,
          that the plaintiff would have submitted to the treatment,
          and that it is more probable than not the treatment could
          have lessened or avoided the plaintiff’s injury had it been
          rendered. It is then for the trier of fact to determine
          whether the defendant’s negligence was a substantial factor
          in causing the plaintiff’s harm.

Id. at 759.   That court distinguished the substantial chance

approach from the “all or nothing” rule:

                We disagree with the court of appeals’ conclusion in
          Finn [v. Schammel, 412 N.W.2d 147 (Wis. Ct. App. 1987),]
          that in a case of this nature Wisconsin law follows the
          “all or nothing” approach. In a case such as this, the
          plaintiff need not show that proper treatment more probably
          than not would have been successful in lessening or
          avoiding the plaintiff’s injuries as a prerequisite to
          satisfying his or her burden of production on the issue of
          causation. In addition to the other requirements
          previously noted, all that is required is that the
          plaintiff establish that proper treatment could have
          lessened or avoided the plaintiff’s harm. Compare Hicks,
          368 F.2d at 632. The trier of fact may consider evidence



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          of the likelihood of success of proper treatment in
          determining whether the negligence was a substantial factor
          in causing the harm, and may yet conclude that it was not
          because the injuries would have occurred irrespective of
          the negligence. See Restatement (Second) of Torts, sec.
          432 and comment b to that section. If the defendant’s
          negligence is found to have been a substantial factor in
          causing the harm, the trier of fact may also consider
          evidence of the likelihood of success of proper treatment
          in determining the amount of damages to be awarded.

Id. at 763.

          As these cases make clear, 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.   In the words of the Supreme Court of Kansas:

                Considering the various approaches adopted by the
          courts, we are of the opinion that the middle ground or so-
          called relaxed causation standard of proof approach is the
          better rule. In an action to recover for the loss of a
          chance to survive . . . , the plaintiff must first prove
          the traditional elements of a medical negligence action by
          a preponderance of the evidence. The plaintiff must prove
          that the defendant was negligent in treating the patient,
          that the negligence caused harm to the plaintiff, and that
          as a result the plaintiff suffered damages. In proving
          that the plaintiff suffered harm, the plaintiff must prove



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            that the lost chance of survival . . . was a substantial
            loss of the chance.

Delaney, 873 P.2d at 185-86.

            Although this case is the first in which we have fully

considered the loss of chance doctrine under Hawaiʻi law, we note

that Hawaiʻi courts, and federal courts applying Hawaiʻi law,

have never recognized loss of chance as an independent and

separately compensable cause of action.          Nor have they embraced

a theory of legal causation other than the one articulated in

Mitchell.

            The earliest case addressing the loss of chance

doctrine under Hawaiʻi law was McBride v. United States, in which

the U.S. Court of Appeals for the Ninth Circuit applied Hawaiʻi

law to a claim of medical negligence against a doctor at the

Tripler Army Hospital.      462 F.2d at 73.      The Ninth Circuit held

that the district court erred in holding that the plaintiff had

failed to show the essential causal connection between a

patient’s nonadmittance to the hospital and his death.             Id. at

74.   With regard to the correct causal showing, the Ninth

Circuit said:

                  When a plaintiff’s cause of action rests upon an
            allegedly negligent failure to give necessary treatment, he
            must show, with reasonable medical probability, that the
            treatment would have successfully prevented the patient’s
            injury. He need not prove with certainty that the injury
            would not have occurred after proper treatment. In most
            situations the best medical treatment in the world cannot
            provide an absolute guarantee of success; medicine is not
            an exact science in that sense. Yet the absence of



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          positive certainty should not bar recovery if negligent
          failure to provide treatment deprives the patient of a
          significant improvement in his chances for recovery. We
          think the plaintiff demonstrated the requisite reasonable
          medical probability in this case.

Id. at 75 (footnotes omitted).      We understand the Ninth

Circuit’s holding to be that a plaintiff in a medical negligence

case is not required, as the plaintiff would be under the “all

or nothing” rule, to show with “positive certainty” that a

negligent act or omission caused an injury, only that a

reasonable finder of fact could conclude that it did.           Thus, the

holding in McBride was consistent with our substantial factor

causation rule.   See Futi, 2010 WL 2900328, at *26 (recognizing

that, although this court had not yet addressed the loss of

chance doctrine, “the Ninth Circuit interpreted [Hawai‘i] law as

allowing the lost chance doctrine to apply to medical

malpractice claims”).

          Hawaiʻi courts have cited to McBride for the

proposition that medical opinions must be based on reasonable

medical probability.    See Craft, 78 Hawaiʻi at 305, 893 P.2d 138,

156; Barbee, 119 Hawaiʻi at 163, 194 P.3d at 1125.         The ICA in

Barbee also considered a loss of chance argument.          It held that,

because the plaintiffs had failed to provide expert medical

testimony, the circuit court had not erred in granting judgment

as a matter of law on that question to the defendants.           119

Hawaiʻi at 164, 194 P.3d at 1126.       However, it did not reject the


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argument that the plaintiffs could have recovered for a loss of

chance.   It merely stated that the plaintiffs could not recover

without the requisite expert testimony.

B. The Claim Letter submitted by the Estate asserted a medical
negligence claim that met the requirements of the MCCP statute.

          The MCCP—now MICP—statute requires a medical tort

claimant to “submit a statement of the claim” before a suit can

be commenced on the claim.    HRS § 671-12(a) (1993).    The statute

sets three simple requirements for these claim statements:          they

must be submitted “in writing[,]” they must “set forth facts

upon which the claim is based[,]” and they must “include the

names of all parties against whom the claim is or may be made

who are then known to the claimant.”      Id.   These requirements

are informal and undemanding, and the history of the MCCP

process shows that they are intentionally so.       The introduction

of the MCCP process was “[a] significant aspect of the

legislative effort to make the [medical malpractice] system less

costly and more efficient[.]”    Tobosa v. Owens, 69 Haw. 305,

312, 741 P.2d 1280, 1285 (1987).      The process was designed “to

encourage early settlement of claims and to weed out

unmeritorious claims.”   Id. (quoting H. Stand. Comm. Rep. No.

417, in 1976 House Journal, at 1460).      It is therefore

unsurprising that the requirements to initiate a claim under HRS

§ 671-12 (1993) are designed to be simple.       Cf. HRS § 671-13



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(1993) (hearings are to be “informal”); HRS § 671-15 (1993)

(MCCP decisions must be rendered within thirty days of a

hearing); HRS § 671-19 (Supp. 1995) (parties and insurers are

required to cooperate to achieve “a prompt, fair, and just

disposition or settlement”).10

            The Claim Letter submitted by the Estate and the other

Claimants met the requirements of the statute.          It was in

writing, identified Dr. Mastroianni as the party against whom

the claim was being made, and contained a brief summary of the

alleged facts underlying the claim.        Nothing in the statute

required the Claimants to lay out the legal theories that they

would later pursue in the circuit court.

            Under HRS § 671-1 (1993), a “[m]edical tort” is

defined to include “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 the

patient.”    The Claim Letter alleged that Dr. Mastroianni was

     10
            Further emphasizing the informality of the MCCP process, the
legislature renamed the panels Medical Inquiry and Conciliation Panels in
2012, based on its finding that “many claims now filed with medical claim
conciliation panels tend to function as inquiries rather than actual claims,
and patients or their families tend to use these proceedings to seek
information regarding adverse events that they associate with medical
treatment[,]” rather than to make “claims based on substantive analysis of
the applicable standard of care.” 2012 Haw. Sess. Laws Act 296, §1 at 1004-
05. The legislature stated that the purpose of the MICP statute was “to more
closely reflect actual practice and the original intent for panels to serve
in a conciliatory function.” Id. at 1006.




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Frey’s treating physician and that he discharged Frey after two

days in the hospital with a diagnosis of bronchitis, despite

indications that he had pneumonia.    It alleged that, after being

discharged by Dr. Mastroianni, Frey had trouble breathing and

was readmitted to the hospital, where his condition deteriorated

until he died.   It identified specific acts or omissions of Dr.

Mastroianni that allegedly fell beneath the standard of care,

and alleged that “it is likely that [Frey] would have survived”

if certain actions had been taken.    Thus, the Claim Letter set

forth facts to support the Claimants’ assertion that Dr.

Mastroianni committed medical negligence or an error or omission

in professional practice which was the legal cause of injury to,

and ultimately the death of, Robert Frey.

          The circuit court in this case held that it did not

have jurisdiction over the loss of chance “claim” because the

Estate had failed to raise it before the MCCP.      The ICA, based

on its determination that a loss of chance is a separate

compensable injury, agreed.    Estate of Frey, 2018 WL 3199216, at

*7.   The circuit court and the ICA were correct that the

requirements of the MCCP statute are “pre-condition[s]” and

“jurisdictional prerequisites” to bringing a lawsuit.      Yamane v.

Pohlson, 111 Hawaiʻi 74, 83, 137 P.3d 980, 989 (2006) (quoting

Tobosa, 69 Haw. at 314, 741 P.2d at 1287) (citing Garcia v.

Kaiser Found. Hosps., 90 Hawaiʻi 425, 441, 978 P.2d 863, 879


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(1999)); see Dubin, 89 Hawaiʻi at 195, 970 P.2d at 503.      The

circuit court would not have had jurisdiction if the Estate had

not complied with the MCCP procedures set out in Part II of HRS

Chapter 671.   However, as explained above, 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.      Therefore, the Estate was

not required to specifically raise loss of chance, or any other

legal theory, before the MCCP in order to later file suit on the

claim, so long as it otherwise met the requirements of HRS §

671-12(a) (1993).   It was sufficient for the Claimants to set

out facts upon which their medical tort claim is based as

required by HRS § 671-1 (1993).

C. The circuit court erred in granting judgment as a matter of
law to Dr. Mastroianni.

          A motion for judgment as a matter of law may be

granted only when there is no evidence to support a jury verdict

in favor of the non-moving party.      Kawakami, 142 Hawaiʻi at 513,

421 P.3d at 1283.   In this case, there was ample evidence to

support a jury finding in favor of the Estate.

          In a medical negligence claim, the plaintiff has the

burden of establishing “a duty owed by the defendant to the

plaintiff, a breach of that duty, and a causal relationship

between the breach and the injury suffered.”      Barbee, 119 Hawaiʻi



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at 158, 194 P.3d at 1120 (quoting Bernard v. Char, 79 Hawaiʻi

371, 377, 903 P.2d 676 (App. 1995)).     A medical negligence

plaintiff is required to establish legal causation through the

introduction of expert medical testimony, id., and such

testimony must be “based on a ‘reasonable medical

probability[,]’” id. at 163, 194 P.3d at 1125 (quoting Craft, 78

Hawaiʻi at 305, 893 P.2d at 156).     As to wrongful death claims,

the plaintiff has the burden of establishing that the death of

one person was caused by “the wrongful act, neglect, or default”

of another, HRS § 663-3 (Supp. 1997), which, in this case, would

be “medical negligence.”

          The testimony of the Estate’s expert witnesses,

summarized at length above, provided ample evidence for a

reasonable jury to conclude that Dr. Mastroianni’s failures to

meet the standard of care were a legal cause, or significant

factor, of Frey’s death to a reasonable degree of medical

probability.   In particular, Dr. Schultz testified that if Frey

had stayed in the hospital, he “would have received treatment

that might have included things to help him survive until the

antibiotics could take effect” and that if certain measures had

been taken, “there is a significant chance that [Frey] could

have done better than he eventually did.”     He also testified

that Frey’s chance of survival would have improved

“significantly” if he had stayed in the hospital and if the


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steps that were taken to combat Frey’s sepsis had been taken

earlier.   Dr. Smith testified that if Frey had remained in the

hospital and if certain steps had been taken, those steps “would

all ensure [Frey’s] safety[,]” that there would have been “an

advantage” to administering antibiotics to Frey in the hospital,

and that Frey “would have responded much better” if he had been

administered antibiotics sooner.

           In spite of this evidence, the circuit court and the

ICA both concluded that judgment as a matter of law was

appropriate.    This conclusion appears to have rested on the

requirement that expert medical testimony in medical malpractice

cases must be based on reasonable medical probability, as the

circuit court found that none of the Estate’s experts “opined to

a reasonable degree of medical probability as to whether Mr.

Frey would have survived had he not been discharged by Dr.

Mastroianni.”

           Because “the causal link” between alleged acts of

medical negligence and their specific results is often “not

within the realm of ‘common knowledge[,]’” a jury generally must

rely on “expert medical testimony to determine whether and to

what extent any alleged negligence” contributed to the alleged

harm.   Barbee, 119 Hawaiʻi at 161, 194 P.3d at 1123.     But because

causation in the medical field cannot always be determined with

perfect accuracy, “expert testimony on causation must be based


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on a ‘reasonable medical probability[.]’”     Id. at 163, 194 P.3d

at 1125 (quoting Craft, 78 Hawaiʻi at 305, 893 P.2d at 156); see

McBride, 462 F.2d at 75.   This means that testimony that

“[falls] short of providing the causal nexus” between alleged

negligence and harm to the patient is insufficient as a matter

of law.   Barbee, 119 Hawaiʻi at 163, 194 P.3d at 1125.     However,

when testimony asserting such a causal nexus is provided, it

falls to the jury to determine whether the party presenting the

testimony has met its burden of proof.     Dzurik v. Tamura, 44

Haw. 327, 329, 359 P.2d 164, 165 (1960) (“A case involving a

medical issue . . . is no exception to the rule that, when there

are conflicting inferences and conclusions, it is the function

of the trier of facts to select the one which it considers most

reasonable.”)

           In this case, the circuit court erred when it found

that none of the Estate’s experts “opined to a reasonable degree

of medical probability as to whether Mr. Frey would have

survived had he not been discharged by Dr. Mastroianni[,]” and

the ICA repeated the error in holding that “the expert medical

testimony fell short of providing a causal nexus between Dr.

Mastroianni’s alleged negligence and Frey’s death.”      Estate of

Frey, 2018 WL 3199216, at *9.    To the contrary, a jury could

have found that the testimony from these experts did establish

causation to a reasonable degree of medical probability.      The


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“reasonable medical probability” requirement did not require the

Estate’s experts to present theories of medical causation with

absolute certainty, but with enough certainty to, “in the

jurors’ eyes, rise to the requisite degree . . . to establish a

medical probability.”    Craft, 78 Hawaiʻi at 305, 893 P.2d at 156.

Unlike the testimony at issue in Barbee, the testimony of the

Estate’s experts in this case provided sufficient certainty

about the effect of Dr. Mastroianni’s actions that the jury

could conclude that there was a causal nexus to establish a

medical probability; it was not “left to speculate whether [Dr.

Mastroianni’s] action or inaction might or could have resulted

in” Frey’s death.   See 119 Hawaiʻi at 163, 194 P.3d at 1125.

          Furthermore, each of the Estate’s expert witnesses

expressly stated that his testimony was to a reasonable degree

of medical probability.     As we held in Dzurik, however, such an

explicit statement is not necessary for a jury to consider

whether a failure to meet the standard of care was, to a

reasonable degree of medical probability, a legal cause, or

significant factor, for an injury:

                 When causation of the injury is a medical issue,
          . . . “[the] matter does not turn on the use of a
          particular form of words by the physicians in giving their
          testimony,” since it is for the trier of facts, not the
          medical witnesses, to make a legal determination of the
          question of causation. Here, the failure of a medical
          witness to testify positively as to what was the cause of
          the injury, or his statement that the accident “might” be
          or “probably” was the cause of the injury, is merely a
          circumstance to be taken into consideration by the trier of
          facts.


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44 Haw. at 330, 359 P.2d at 165-66 (quoting Sentilles v. Inter-

Caribbean Shipping Corp., 361 U.S. 107, 109 (1959)).      Although

explicit statements from experts that a failure to meet the

standard of care was a legal cause or significant factor of an

injury “based upon a reasonable degree of medical probability”

are frequently elicited in medical negligence cases, our holding

in Dzurik that such express language is not necessary remains

good law.

            Neither Barbee nor Craft require that a medical expert

explicitly state that causation exists to a reasonable degree of

medical probability.    In Barbee, medical experts testified that

the deceased’s condition was “ongoing and progressive” and that

“a hemoglobin of three indicates ‘severe anemia, likely

incompatible with life[.]’”    119 Hawaiʻi at 163, 194 P.3d at

1125.   The ICA found that the expert testimony established, at

most, that it was possible “[d]efendants’ ‘action or inaction

might or could have’ resulted” in causing Barbee’s death, and

thus left the jury to speculate.      Id. (quoting Wicklund v.

Handoyo, 181 S.W.3d 143, 149 (Mo. Ct. App. 2005)).      In Craft,

this court stated that the medical testimony of Craft’s experts

introduced new theories of medical causation not sufficiently

tested, and thus the jury was appropriately instructed to

disregard any medical opinion that was not based upon reasonable



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medical probabilities.   Craft, 78 Hawaiʻi at 305, 893 P.2d at

156.

          Thus, in determining whether a medical expert’s

statement is to a reasonable degree of medical probability, we

look not to whether the medical expert made an explicit

statement characterizing their testimony as “to a reasonable

degree of medical probability” but rather, to the evidence

itself.   In this case, sufficient expert testimony existed in

the record for the jury to consider the issue of causation.       The

ICA therefore erred in ruling that Frey failed to present any

expert medical testimony establishing that Dr. Mastroianni

caused Frey’s death “to a reasonable degree of medical

probability”.

                          IV.   CONCLUSION

          For the foregoing reasons, the ICA’s memorandum

opinion and judgment on appeal are vacated, the circuit court’s

judgment in favor of Dr. Mastroianni is vacated, and the case is

remanded to the circuit court for a new trial consistent with

this opinion.

Anthony L. Ranken               /s/ Mark E. Recktenwald
Samuel P. Shnider
for Petitioner                  /s/ Paula A. Nakayama

Thomas E. Cook                  /s/ Sabrina S. McKenna
Brandford F.K. Bliss
for Respondent                  /s/ Richard W. Pollack

                                /s/ Michael D. Wilson


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