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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-14-0001030

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-14-0001030; 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 

Electronically Filed

Supreme Court

SCWC-14-0001030

05-MAY-2020

09:03 AM
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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-14-0001030, 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-byState 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 socalled 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. InterCaribbean 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. 

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

Anthony L. Ranken

Samuel P. Shnider

for Petitioner

Thomas E. Cook

Brandford F.K. Bliss

for Respondent