HELG Admin. Serv. v. Dep't of Health

154 Haw. 228

549 P.3d 313

HELG ADMINISTRATIVE SERVICES, LLC, as Conservator for Curtis Pomaikai Panoke, a.k.a. Curtis P. Panoke, a.k.a. Curtis Panoke, an Incapacitated Person, and Katarine Hokulani Panoke Gec, Plaintiffs-Appellees,

v.DEPARTMENT OF HEALTH, State of Hawaii; Mark A. Fridovich, Ph.D; William P. Sheehan, M.D.; Chiyome L. Fukino, M.D.; Linda Rosen, M.D.; Virginia Pressler, M.D.; Defendants-Appellees,andGEO Care, Inc., GEO Care, LLC, Correct Care, LLC, Correct Care Solutions, LLC dba The Columbia Regional Care Center, Defendants-Appellants.

SCAP-22-0000699

Supreme Court of Hawai‘i

June 4, 2024

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-22-0000699; CIV. NOS. 1CC181000825; 1CC191000332)

Frederick Matson Kelley (Alex Wilkins and Jon S. Jacobs, Honolulu, with him on the briefs) for plaintiffs-appellees

Jeffrey S. Portnoy, Honolulu, (Trisha L. Nishimoto, Honolulu, and Troy C. Young with him on the briefs) for defendants-appellants

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, and DEVENS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This personal injury case presents an issue of first impression: whether an adult child’s claim of loss of parental consortium is cognizable when the parent has not died but has entered a persistent vegetative state and will not recover.

The defendants (GEO Care, Inc.; GEO Care, LLC; Correct Care, LLC; and Correct Care Solutions, LLC, dba The Columbia Regional Care Center; collectively "GEO Care") point out that in Halberg v. Young, 41 Haw. 634, 642 (Haw. Terr. 1957), this court held "no action exists in favor of a child for injuries sustained by the parent not resulting in the parent’s death." Consistent with U.S. common law doctrine at that time, Halberg held that three minor children’s claims for damages arising out of their mother’s injury for "loss of acts of kindness, care, attention and other incidents of the parent and child relationship" failed to state a claim upon which relief could be granted. 41 Haw. at 634, 635, 642.

The plaintiffs (including Hoku Gec, the adult child of Curtis Panoke, the individual now in a persistent vegetative state, collectively "plaintiffs"), however, point out that in Masaki v. General Motors Co., 71 Haw. 1, 22, 780 P.2d 566, 578 (1989), we held that "a parent may recover damages for the loss of filial consortium of an injured adult child." In Masaki, an adult was rendered a quadriplegic, and this court affirmed his parents’ damage award for loss of filial consortium, noting that "severe injury may have just as deleterious an impact on filial consortium as death." Masaki, 71 Haw. at 4, 19-20, 780 P.2d at 577. Masaki also contained the following footnote, which left open the issues we address today:

In Halberg v. Young, 41 Haw. 634 (1957), we followed the traditional common-law rule and held that no cause of action exists in favor of a child for injuries sustained by his parents. Appellants claim that our decision in Halberg is dispositive of the instant case because a parent’s claim for the lost consortium of a child is merely the reciprocal of a child’s claim for the lost consortium of his parents. While we recognize that the two actions are analogous in many respects, the issue of parental consortium is not before us today.

Masaki, 71 Haw. at 19 n.8, 780 P.2d at 576 n.8.

The plaintiffs also note that the United States District Court for the District of Hawai‘i ("federal district court") interpreted Masaki to have implicitly overruled Halberg. The federal district court anticipated that this court would recognize an adult child’s claim for loss of parental consortium in a case of parental injury. Marquardt v. United Airlines, 781 F. Supp. 1487, 1492 (D. Haw. 1992) ("It is this court’s considered judgment that if presented with the facts present here the Supreme Court of Hawaii would expressly overrule Halberg. This court thus finds that a cause of action for loss of parental consortium now exists under Hawaii Law and that [the adult child] may maintain an action for the loss of consortium of her [injured] mother."); see also Mettias v. United States, Civ. No. 12-00527 ACK-KSC, 2015 WL 1931082, at *35 (D. Haw. Apr. 21, 2015) (following Marquardt).

Based on the reasons discussed below, we now recognize a child’s loss of parental consortium claim when a parent is severely injured, whether the child is a minor or an adult.

II. Background

On February 28, 2019, HELG Administrative Services, LLC (as conservator for Curtis Panoke) and Katja Gec (as limited conservator for Panoke’s minor daughter, K.H.P.G.¹) filed a post-Medical Inquiry and Conciliation Panel ("MICP") complaint² against GEO Care and the State of Hawai‘i Department of Health; Mark A. Fridovich, Ph.D; William P. Sheehan, M.D.; Chiyome L. Fukino, M.D.; Linda Rosen, M.D.; and Virginia Pressler, M.D.³ The complaint alleged as follows: The Columbia Regional Care Center is "a 374-bed private detention healthcare facility for individuals not competent to stand trial and found not guilty by reason of insanity." The State of Hawai‘i Department of Health ("DOH") contracted⁴ with GEO Care to provide care to Panoke because Panoke "posed a significant danger to HSH [Hawai‘i State Hospital] patients and HSH staff."

Panoke had been charged in 2005 with assault in the second degree after attacking an individual at an Aiea homeless shelter. Upon his arrest, Panoke was committed to the Kekela unit at Queen’s Medical Center for seven weeks, but when his level of violence, aggression, and assaultive behavior became unmanageable, he was committed to HSH. At a stipulated facts trial, the circuit court judge acquitted Panoke of assault in the second degree on the ground of physical or mental disease, disorder, or defect excluding responsibility. Panoke was committed to DOH to be placed in an appropriate institution.

In 2007, while in DOH custody at HSH, Panoke attacked a nurse, fracturing her facial bones. The nurse required 26 stitches around her left eye. Panoke was then charged with assault in the second degree. This time, the circuit court found him fit for trial, Panoke pled no contest to the charge, and the circuit court sentenced him to five years of incarceration. In 2010, GEO Care accepted Panoke for mental health treatment. DOH extended its contract with GEO Care multiple times through 2016.

In March 2016, Panoke expressed a desire to return to Hawai‘i, but the DOH had not planned for him to return. During the ensuing months, Panoke and his roommates were involved in violent altercations. Panoke’s request to be placed in a single room was ignored. On June 8 or 9, 2016, Panoke was attacked by his roommates while he slept. The attack left him in a persistent vegetative state.

[1] Count One of the complaint alleged negligence or gross negligence as to GEO Care and DOH; Count Two alleged negligent infliction of emotional distress; Count Three alleged negligent or grossly negligent hiring, training, supervision, selection, and/or retention of defendants’ employees; Count Four alleged breach of fiduciary duty. For each count, plaintiffs alleged that, as a direct and proximate cause of defendants’ wrongful conduct, they "suffered and will continue to suffer pain and suffering, mental anguish, emotional distress, loss of quality of life, loss of enjoyment of life, temporary and/or partial impairment and/or disability, emotional dis- figurement and/or scarring, loss of income, economic loss, medical expenses, and other expenses. … "⁵ The complaint prayed for general, special, and/or punitive damages.

GEO Care filed its answer on July 17, 2019 and its first amended answer on August 1, 2019. Among the affirmative defenses set forth in its answer and first amended answer, GEO Care included "lack of standing" and that the complaint "fails to state a claim against Defendants upon which relief can be granted."

On April 13, 2022, GEO Care filed a motion for summary judgment ("MSJ") as to all of Hoku’s claims for relief. GEO Care first noted that it did not concede that Panoke was, in fact, Hoku’s father, and therefore, alleged Hoku had no standing to bring claims relating to Panoke’s injury. Moreover, GEO Care argued, "Hawai‘i does not recognize a cause of action by a child for damages arising from a non-fatal personal injury to a parent," citing Halberg, 41 Haw. 634. GEO Care quotes Halberg as stating that "no action exists in favor of a child for injuries sustained by the parent not resulting in the parent’s death." Halberg, 41 Haw. at 642.

Plaintiffs filed their memorandum in opposition to GEO Care’s MSJ on June 29, 2022. Preliminarily, they submitted two exhibits demonstrating that Hoku was Panoke’s biological child. They went on to argue that Halberg does not take into account the current case’s circumstances, in which a child plaintiff has lost all manner of consortium with her father, who has been in a persistent vegetative state for six years and will not recover. Plaintiffs cited Masaki’s observation that "no meaningful distinction can be drawn between death and severe injury where the effect on [filial] consortium is concerned." 71 Haw. at 20, 780 P.2d at 577. To further support their position, plaintiffs pointed to Marquardt, 781 F. Supp. at 1492, in which the federal district court interpreted Masaki as having implicitly overruled Halberg and predicting that this court would recognize a child’s claim for loss of parental consortium where the parent has been injured but not killed.

In GEO Care’s reply, it counter-argued that Masaki ruled narrowly on the parents’ claim for loss of filial consortium and did not "directly state, or even suggest" that its ruling applied to a child’s claim for loss of parental consortium. GEO Care pointed to footnote 8 in Masaki, stating that "the issue of parental consortium is not before us today." 71 Haw. at 19 n.8, 780 P.2d at 576 n.8.

On July 7, 2022, the circuit court held a hearing on GEO Care’s MSJ. The court indicated it was "going to go...