Salas v. EMP Medical Group, Ltd.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2023
07:54 AM
Dkt. 61 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

CARMELA S. SALAS, Plaintiff-Appellant,
v.
EMP MEDICAL GROUP, LTD., A OHIO LIMITED PARTNERSHIP;
EMERGENCY MEDICINE PHYSICIANS OF HONOLULU PALI MOMI, PLLC,
A FOREIGN LIMITED LIABILITY COMPANY; LILY L. GALLAGHER, MD;
EDWARD A. SWENSEN, PA-C, Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10;
and DOE ENTITIES 1-10, Defendants.

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 19-1-0014 )

JANUARY 31, 2023

LEONARD, PRESIDING JUDGE, WADSWORTH AND MCCULLEN, JJ.

OPINION OF THE COURT BY LEONARD, J.

Plaintiff-Appellant Carmela S. Salas (Salas) appeals

from the Final Judgment (Judgment) entered by the Circuit Court
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of the First Circuit (Circuit Court) on June 9, 2020.1 Salas

also challenges the Circuit Court's Findings of Fact and

Conclusions of Law (FOFs & COLs) filed on August 5, 2019.

The Circuit Court concluded, inter alia, that Salas's

medical tort claims are barred by the applicable statute of

limitations, Hawaii Revised Statutes (HRS) § 657-7.3 (2016).2

Salas contends that this action is not time-barred because any

statute of limitations was tolled when she submitted an inquiry

to the State of Hawai#i Medical Inquiry and Conciliation Panel

(MICP). Defendants-Appellees EMP Medical Group, Ltd., Emergency

Medicine Physicians of Honolulu Pali Momi (EMP Pali Momi), PLLC,

Dr. Lily L. Gallagher (Dr. Gallagher), and Edward A. Swensen PA-C

(PA Swensen) (Appellees) successfully argued in the Circuit Court

that the statute of limitations was not tolled in this case

because they were not named as parties to the MICP inquiry filed

by Salas. However, the Circuit Court did not find that Appellees

were known to Salas at the time that the inquiry was filed. We

thus conclude that Salas's lawsuit is not time-barred based on

the record before the Circuit Court, because Appellees did not

1
The Honorable Dean E. Ochiai presided.
2
HRS § 657-7.3 provides, in pertinent part:

§ 657-7.3 Medical torts; limitation of actions; time.
(a) No action for injury or death against a . . . physician
. . . duly licensed or registered under the laws of the
State, or a licensed hospital as the employer of any such
person, based upon such person's alleged professional
negligence . . . shall be brought more than two years after
the plaintiff discovers, or through use of reasonable
diligence should have discovered, the injury[.]

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establish that Salas failed to meet HRS § 671-12(a) (2016)

requirements3 to submit an inquiry to the MICP sufficient to

trigger the HRS § 671-18 (2016) tolling provision4 with respect

to claims against Appellees. We further conclude that the

Circuit Court did not lack subject matter jurisdiction on the

grounds that Salas did not file an MICP inquiry specifically

naming Appellees prior to commencing this lawsuit. The Circuit

Court's Judgment is vacated and this case is remanded.

I. BACKGROUND

Salas suffered a ruptured appendix in late March 2016.

She was treated with antibiotics at the Pali Momi Medical Center

(Pali Momi) from approximately March 26, 2016, to April 15, 2016.

On May 4, 2016, Salas went to the Emergency Department at Pali

Momi with abdominal pain, where she was examined, treated, and

3
HRS § 671-12(a) provides:

§ 671-12 Review by panel required; notice;
presentation of inquiry; request for a more definite
statement of the inquiry. (a) Any person or the person's
representative having concerns regarding the existence of a
medical tort shall submit an inquiry to the medical inquiry
and conciliation panel before a suit based on the
circumstances of the inquiry may be commenced in any court
of this State. Inquiries shall be submitted to the medical
inquiry and conciliation panel in writing and shall include
the facts upon which the inquiry is based and the names of
all parties against whom the inquiry is or may be made who
are then known to the person or the person's representative.
4
HRS § 671-18 provides, in relevant part:

§ 671-18 Statute of limitations tolled. The filing
of the inquiry with the medical inquiry and conciliation
panel . . . shall toll any applicable statute of
limitations, and the statute of limitations shall remain
tolled until sixty days after the termination of the
panel[.]

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then discharged the same day. Two days later, Salas was admitted

to the Honolulu Straub Clinic and Hospital for emergency

treatment of intra-abdominal abscesses and sepsis. In this suit,

Salas alleges that the emergency treatment of her intra-abdominal

abscesses and sepsis starting on May 6, 2016 – which included

exploratory abdominal surgery, debridement of pelvic abscesses,

removal of both fallopian tubes, and removal of her appendix, as

well as a prolonged course of intravenous antibiotics after she

was discharged on May 16, 2016, incapacitation for several

months, and great suffering in body and mind, loss of income, and

incurred medical costs – would have been avoided had the health

care providers who examined, diagnosed, and treated her at Pali

Momi on May 4, 2016, Dr. Gallagher and PA Swensen, properly

diagnosed Salas's condition and immediately treated her.

On March 22, 2018, Salas submitted an Inquiry Regarding

Rendering of Professional Services (Inquiry) to the MICP, on the

form provided by the MICP. The two-page form has four sections

in which the inquiring party is to provide their name and

address, the name and address of the health care provider(s), a

description of the professional services that are the subject of

the inquiry, and the alleged negligent acts or omissions that

fell below the applicable standard of care. Salas identified

Pali Momi as the health care provider(s) and/or health care

facilities believed responsible for the alleged negligence.

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On July 26, 2018, Salas submitted a letter to the MICP

stating that Dr. Stacey L. Woodruff (Dr. Woodruff) and US Acute

Care Solutions would need to be added as additional health care

providers.5 On October 16, 2018, Salas submitted Inquiring

Party's Expert Testimony by Letter to the MICP. Dr. Christopher

Van Tilburg (Dr. Van Tilburg) opined, in part, that:

Ms. Salas presented to the Pali Momi Medical Center
emergency department on 5/4/2016 with generalized abdominal
pain. She was evaluated, treated and discharged to home by
Edward A. Swensen PA-C and Lily L. Gallagher MD. It was
noted that she had been an inpatient at Pali Momi Medical
Center from 3/26/16 to 4/5/16 for a ruptured appendix that
was treated with percutaneous drainage and intravenous
antibiotics. On 5/4/2016, Ms. Salas was having recurrence
of abdominal pain, two weeks after finishing antibiotics.

On 5/4/18 [sic], Ms. Salas's temperature was elevated to
39.3, her pulse was elevated to 109, and her respiratory
rate was elevated to 24. Ms. Salas had abdominal
tenderness, cervical motion tenderness and purulent cervical
discharge. Her lab tests were notable for a WBC elevated to
17.9. Ms. Salas has an abdominal pelvic CT scan which
showed a worsening inflammatory process compared with a scan
from 3/26/16, and the radiologist noted that the findings
were suggestive of pelvic inflammatory disease with multiple
tubo-ovarian abscesses. In summary, on 5/4/2016 Ms. Salas
was having an intra-abdominal infection with sepsis.
However, she was discharged to home.

Regarding the emergency medicine visit to Pali Momi Medical
Center on 5/4/2016, Edward A. Swensen PA-C and Lily L.
Gallagher MD, working at Pali Momi Medical Center and
employed by US Acute Care Solutions, did not meet the
standard of care.

• According to the chart note, sepsis and
intra-abdominal abscesses were not considered by Mr.
Swensen in his differential diagnosis, despite the
admission from 3/26/16 and the physical exam and
laboratory findings noted above, which included three
abnormal vital signs, an elevated white blood cell
count, a positive abdominal-pelvic CT Scan. Mr.
Swensen and Dr. Gallagher failed to recognize, or even
consider, sepsis, a common life-threatening condition.
• Consultation with the patient's gynecologist or the
on-call gynecologist did not occur.

5
Salas did not include US Acute Care Solutions or Dr. Woodruff in
the Complaint.

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• Ms. Salas was discharged to home. She should have
been admitted to the hospital.

Ms. Salas returned to a different medical center two days
later on 5/6/16 and was admitted for 10 days for
intraabdominal abscesses and sepsis. Treatment included an
exploratory abdominal surgery, debridement of pelvic
abscesses, removal of both fallopian tubes, and removal of
the appendix. She had a prolonged course of intravenous
antibiotics even after being discharged. It is medically
probably [sic] that if she had been admitted on 5/4/18 [sic]
and treated, she would not have needed surgery and possibly
could have avoided the need for prolonged antibiotics.

The Inquiry was heard on October 25, 2018, and MICP

issued a letter dated November 5, 2018, advising that the

proceeding had been terminated, the inquiring party could

institute litigation, and noting and quoting the tolling

provision in HRS § 671-18.

On January 3, 2019, Salas filed a complaint against

Appellees (Complaint). On March 8, 2019, EMP Pali Momi, Dr.

Gallagher, and PA Swensen filed a motion to dismiss the claims

against them, asserting that Salas had failed to file an MICP

inquiry against them, and therefore, the Circuit Court lacked

subject matter jurisdiction. Salas filed an opposition, arguing,

inter alia, that she satisfied the prerequisite requirements of

HRS § 671-12(a) because, at the time she filed her inquiry with

the MICP, she named other parties who were then known to her.

EMP Pali Momi, Dr. Gallagher, and PA Swensen filed a reply,

arguing, inter alia, that Salas's failure to name them as parties

to the MICP proceeding was inexcusable, prejudicial, and in

violation of the language and purpose of HRS § 671-12(a).

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On June 7, 2019, Appellees filed a motion for summary

judgment, arguing that the applicable statute of limitations had

expired on Salas's claims, Salas had failed to file a claim

against the Appellees with the MICP prior to filing the

Complaint, and therefore, the Circuit Court lacked jurisdiction

and the Complaint should be dismissed. Salas filed an

opposition, again arguing that she met the requirements of HRS

§ 671-12(a), and that the Complaint was filed within the tolled

statute of limitations. A reply memorandum was filed.

A hearing was held on July 3, 2019.6 The Circuit

Court's minutes indicate that the court found that the statute of

limitations ran as of January 6, 2019, but none of the Appellees

were subject to the MICP, so that as to them, the statute ran out

on May 5, 2018, seven months prior to the filing of the

Complaint. The FOFs & COLs were entered on August 5, 2019.

A notice of appeal was filed on September 4, 2019.

After a temporary remand by this court, the Circuit Court entered

the Judgment on June 9, 2020.

II. POINTS OF ERROR

Salas raises two points of error on appeal, contending

that the Circuit Court erred in: (1) concluding that the statute

of limitations had expired (Salas challenges COLS C-H, which

addressed the statute of limitations); and (2) concluding that

the court did not have jurisdiction over Salas's claims based on

6
No transcript was provided to this court.

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her failure to file an MICP inquiry against the Appellees (Salas

challenges COLS I and J, which addressed the HRS § 671-12(a)

prerequisites to filing suit).

III. APPLICABLE STANDARDS OF REVIEW

The appellate court reviews "the circuit court's grant

or denial of summary judgment de novo." Querubin v. Thronas, 107

Hawai#i 48, 56, 109 P.3d 689, 697 (2005) (citation omitted).

Statutory interpretation is reviewed de novo by [the
appellate] court. When construing a statute, our foremost
obligation is to ascertain and give effect to the intention
of the legislature, which is to be obtained primarily from
the language contained in the statute itself. Moreover, it
is a cardinal rule of statutory interpretation that, where
the terms of a statute are plain, unambiguous and explicit,
we are not at liberty to look beyond that language for a
different meaning. Instead, our sole duty is to give effect
to the statute's plain and obvious meaning.

Bhakta v. Cnty. of Maui, 109 Hawai#i 198, 208, 124 P.3d 943, 953

(2005) (citations, internal quotation marks, and original

brackets omitted).

"Whether a court possesses subject matter jurisdiction

is a question of law reviewable de novo." State v. Milne, 149

Hawai#i 329, 334, 489 P.3d 433, 438 (2021) (quoting Kakinami v.

Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705 (2012)).

IV. DISCUSSION

A. The Statute of Limitations

Salas argues that this action is not time-barred

because any statute of limitations was tolled when she submitted

the Inquiry to the MICP. We hold that the record does not

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support the Circuit Court's conclusion that Salas's medical-tort

claims are barred by HRS § 657-7.3.

HRS § 657-7.3 bars any action for medical torts that is

brought more than two years after the plaintiff discovers or

should have discovered the injury. HRS § 671-12(a) requires any

person "having concerns regarding the existence of a medical

tort" to submit an inquiry to MICP before filing suit. HRS

§ 671-18 provides that the filing of an inquiry "shall toll any

applicable statute of limitations" until sixty days after the

termination of the MICP proceedings. (Emphasis added).

The Circuit Court found and concluded that the statute

of limitations began to run, at the latest, on May 6, 2016.

Salas does not argue that the statute accrued at a later date.

It is undisputed that if the filing of the Inquiry did not toll

the running of the two-year period, the January 3, 2019 Complaint

was untimely. However, pursuant to HRS § 671-18, the statute of

limitations remained tolled for sixty days after the November 5,

2018 MICP termination date, if the tolling provision was

triggered.

The Circuit Court concluded that the tolling provision

was not applicable to Salas's claims against Appellees because

she did not name Appellees as parties to the MICP Inquiry.

Appellees argue, and the Circuit Court essentially concluded,

that HRS § 671-12(a) mandates that all parties be specifically

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named in an inquiry filed with the MICP before a lawsuit can be

filed against them.

It is undisputed that HRS § 671-12(a) requires the

submission of an inquiry to the MICP, when a person has concerns

regarding the existence of a medical tort, and that the inquiry

must be submitted before a lawsuit can be filed based on the

circumstances that are the subject of the inquiry. Although

satisfaction of this requirement is jurisdictional, the Hawai#i

Supreme Court has held that the requirement is intended to be

relatively simple, informal, and undemanding. Estate of Frey v.

Mastroianni, 146 Hawai#i 540, 544-45, 556, 463 P.3d 1197, 1200-

01, 1213 (2020). The supreme court observed, even before the HRS

chapter 671 filing requirements were softened in 2012, that they

were not intended as a high hurdle:
The MCCP—now MICP—statute requires a medical tort
claimant to "submit a statement of the claim" [now just an
inquiry] before a suit can be commenced on the claim. HRS
§ 671-12(a) (1993). The statute sets three simple
requirements for these claim statements [now inquiries]:
they must be submitted "in writing," they must "set forth
facts upon which the claim [now inquiry] is based," and they
must "include the names of all parties against whom the
claim [now inquiry] is or may be made who are then known to
the claimant [now person or person's representative]." Id.
These requirements are informal and undemanding, and the
history of the MCCP process shows that they are
intentionally so.

Id. at 555, 463 P.3d at 1212 (original brackets omitted;

bracketed language reflects amendments to the requirements of HRS

§ 671-12(a)).7

7
The claims at issue in Estate of Frey stemmed from alleged medical
torts and a death that occurred in 2004. As the MCCP letter at issue was
filed in 2006, the amendments to HRS chapter 671 codified in Act 296 of 2012
(continued...)

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The plain language of HRS § 671-12(a) simply does not

require that the person submitting the inquiry include all

potential parties or potential defendants in a future law suit.

On the contrary, it provides only that the names of the parties

known, at the time the inquiry is filed, to the inquiry-filing

person or the person's representative, must be included. HRS

§ 671-12(a) ("Inquiries shall be submitted to the [MICP] in

writing and shall include the facts upon which the inquiry is

based and the names of all parties against whom the inquiry is or

may be made who are then known to the person or the person's

representative.") (emphasis added).

Moreover, as observed by the United States District

Court for the District of Hawai#i (U.S. District Court):

The [Hawai#i] legislature did not intend the MICP process to
be used to present actual claims, but rather to permit a
person or the person's representative to seek information
about medical treatment and adverse consequences from that
treatment. In 2012, Hawaii Session Laws Act 296 ("Act 296")
made significant changes to how the panels (then called the
Medical Claims Conciliation Panel) functioned, so as to
"delet[e] the decision-making function of the panels, and
instead emphasiz[e] the use by panels of conciliation and
mediation to resolve matters before them." [Campos v.
Marrhey Care Home, LLC, 128 Hawai#i 405, 408 n.5, 289 P.3d
1041, 1044 n.5 (App. 2012)]; see also 2012 Haw. Sess. Laws
Act 296. Act 296 provided that:

The legislature finds 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. . . . The
legislature further finds that provisions in the
Hawaii Revised Statutes relating to medical claims
conciliation should be amended to reflect that many

7
(...continued)
were not yet in effect. See Estate of Frey, 146 Hawai #i at 544-45, 463 P.3d
at 1200-01.

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filings, particularly by pro se parties, are
inquisitive in nature and are based on a lack of
information rather than claims based on substantive
analysis or the applicable standard of care.
Proceedings with medical claim conciliation panels
should be conducted in a non-adversarial way and
structured to facilitate the conveying of information
rather than assigning blame.

2012 Haw. Sess. Laws Act 296 § 1 (emphases added). And it
follows that in this non-adversarial inquiry, a person or
person's representative might seek very basic information,
including the names or roles of various treating physicians.
A harsh rule that requires naming all potential parties in
the MICP inquiry (or else running the risk of being time-
barred later) runs counter to the legislature's finding that
many persons or person's representatives simply seek
information through the MICP based on a lack knowledge about
adverse medical events. In short, it would be inconsistent
with legislative intent to toll the statute of limitations
to specifically named individuals but not others when a
basic purpose of the MICP is "to seek information regarding
adverse events [associated] with medical treatment."

Krizek v. Queens Med. Ctr., Civ. No. 18-00293, 2019 WL 3646567,

*6 (D. Hawai#i Aug. 6, 2019) (footnote omitted).

We agree with the U.S. District Court's assessment that

a rule requiring naming of all potential parties in the MICP

inquiry runs counter to the legislature's finding that the MICP

process is a means through which a person can get information

about an adverse event associated with medical treatment,

including the names or roles of treating physicians.

Here, Salas named Pali Momi as the health care provider

and/or health care facility in the Inquiry she filed with MICP.

This is consistent with the inquisitive nature of the MICP

process. She sought care for her abdominal pain at the Pali Momi

Emergency Room and she was examined and diagnosed by the health

care professionals that were on duty at the time. Pali Momi was

clearly known to her and naming Pali Momi was a rational way to

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initiate an informal inquiry into whether she received less than

the applicable standard of care. The Circuit Court did not find

that Appellees were known to Salas at the time the Inquiry was

filed.

We recognize that failing to name Appellees as parties

in the MICP process may have undercut the possibility of a global

conciliation and mediation, which is a further goal of the MICP

process. However, we reject a reading of the statute that would

so harshly penalize an inquiring person by, in effect,

foreclosing them from seeking relief against a health care

provider not known to them at the time an inquiry is filed.

While the statute permits a health-care-provider party named in

an MICP inquiry to seek a more definite statement of the inquiry

(see HRS §671-12(c) (2016)),8 there is no statutory requirement

to name additional parties or to otherwise amend an inquiry as

such information comes to light during the course of the MICP

proceedings.

Finally, HRS § 671-18 provides that the filing of an

MICP inquiry "shall toll any applicable statute of limitations."

(Emphasis added). HRS § 671-18 does not limit the application of

8
HRS § 671-12(c) provides, in part:

(c) If the statement of the inquiry in the notice is
so vague or ambiguous that any party receiving notice of the
inquiry cannot reasonably be required to frame a written
response, the party may submit a written request to the
director of commerce and consumer affairs for a more
definite statement before filing the written response.

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the tolling period to claims against the specific persons or

entities named in the HRS § 671-12(a) inquiry.

For these reasons, we conclude that the Circuit Court

erred when it ruled that the tolling provision in HRS § 671-18 is

not applicable to Salas's claims against Appellees because she

did not file an MICP inquiry against them and that Salas's claims

against Appellees are therefore time-barred by the applicable

statute of limitations.

B. The MICP Inquiry Requirement

Salas also challenges the Circuit Court's conclusion

that, because she failed to file an MICP inquiry against the

Appellees themselves, the Circuit Court lacked subject matter

jurisdiction over Salas's claims against Appellees

notwithstanding her submission of the Inquiry, which did not

identify any of the Appellees.

In addition to the simple and informal requirements set

forth in HRS § 671-12(a), HRS § 671-16 (2016) states that "[t]he

party initiating the inquiry may institute litigation based upon

the circumstances of the inquiry in an appropriate court only

after [MICP] proceedings were terminated[.]" As noted above, the

HRS chapter 671 prerequisites to litigation are jurisdictional.

However, as discussed above, the Circuit Court did not find that

Appellees were known to Salas at the time the Inquiry was filed

or otherwise find that Salas failed to satisfy the informal and

undemanding requirements of HRS § 671-12(a). Therefore, the

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Circuit Court erred when it concluded that it lacked subject

matter jurisdiction due to Salas's failure to file an MICP

inquiry specifically naming the Appellees.

V. CONCLUSION

For these reasons, the Circuit Court's June 9, 2020

Judgment is vacated, and this case is remanded for further

proceedings.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Pablo P. Quiban,
for Plaintiff-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Thomas E. Cook,
Bradford F.K. Bliss, /s/ Sonja M.P. McCullen
Malia E. Schreck, Associate Judge
(Lyons Brandt Cook & Hiramatsu),
for Defendants-Appellees.

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