Medical Malpractice Settlement Agreement (Hawaii)

CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE

(Hawaii Medical Malpractice)

PARTIES

This Confidential Settlement Agreement and General Release (the "Agreement") is entered into as of [EFFECTIVE DATE] by and among:

Collectively, the "Parties."

RECITALS

A. On or about [DATE OF CARE], Claimant [or Decedent] received medical care from the Released Provider at [FACILITY] in [CITY], Hawaii.

B. Claimant alleges that the care delivered fell below the applicable standard of care under HRS ch. 671 and caused injury, damages, and losses (the "Claim").

C. [SELECT ONE]
☐ Claimant submitted an inquiry to the Medical Inquiry and Conciliation Panel under HRS § 671-12 on [DATE], MICP No. [____________], and the Parties now resolve the Claim before or after panel review.
☐ Claimant filed Civil No. [__________] in the [Circuit Court of the [First/Second/Third/Fifth] Circuit, State of Hawaii] on [DATE] following completion of MICP review.
☐ The Parties resolve the Claim pre-MICP through good-faith negotiation without admission of liability.

D. The Released Parties deny liability and all allegations of negligence, malpractice, or wrongdoing.

E. To avoid the uncertainty, expense, and burden of further proceedings, the Parties wish to resolve the Claim on the terms set forth below.

NOW, THEREFORE, in consideration of the mutual covenants below, the Parties agree as follows.

1. SETTLEMENT CONSIDERATION

1.1 Total Settlement Amount. The Liability Carrier shall pay, on behalf of the Released Parties, the total sum of $[AMOUNT] (the "Settlement Amount") in full and final settlement of the Claim.

1.2 Allocation. The Parties allocate the Settlement Amount as follows (the "Allocation"):

1.3 Payment Terms. The Settlement Amount shall be paid by check or wire to [CLAIMANT'S COUNSEL TRUST ACCOUNT] within [thirty (30)] days after the latest of: (i) full execution; (ii) receipt of a fully executed W-9; (iii) confirmation of lien resolution under Section 4; and (iv) entry of any required probate or minor-compromise approval.

1.4 Structured Settlement Option. ☐ All / ☐ Part of the Settlement Amount ($[____]) shall be funded through a qualified assignment under IRC § 130 to [ASSIGNEE] providing periodic payments per Exhibit A.

2. RELEASE

2.1 General Release. Claimant releases, acquits, and forever discharges the Released Provider, the Released Entity, the Liability Carrier, and each of their respective parents, subsidiaries, affiliates, officers, directors, employees, agents, insurers, reinsurers, attorneys, predecessors, and successors (collectively, the "Released Parties") from any and all claims, demands, causes of action, damages, costs, expenses, and liabilities of any kind, whether known or unknown, arising out of or related to the care described in the Recitals.

2.2 Unknown Claims. Claimant expressly waives any rights under any statute or common-law rule that would preserve unknown or unsuspected claims.

2.3 Carve-Outs. This release does NOT extend to: (a) claims to enforce this Agreement; (b) workers' compensation benefits, if any; or (c) [INSERT ANY OTHER CARVE-OUTS].

2.4 No Admission. This Agreement is a compromise of disputed claims. The Released Parties expressly deny liability.

3. NPDB AND REGULATORY REPORTING

3.1 NPDB Reporting. The Parties acknowledge that the Liability Carrier (or self-insured entity) must report any payment made on behalf of a licensed practitioner under 45 C.F.R. § 60.7 to the National Practitioner Data Bank within thirty (30) days of payment.

3.2 Practitioner Identification. The NPDB report shall identify [PROVIDER NAME, LICENSE NO.] as the practitioner on whose behalf payment is made.

3.3 Hawaii Medical Board Reporting. The Released Provider shall comply with any independent reporting obligations to the Hawaii Medical Board under HRS ch. 453 and Hawaii Administrative Rules.

3.4 Settlement Summary. Claimant agrees not to mischaracterize the settlement to third parties in a manner inconsistent with the NPDB report.

4. LIENS, SUBROGATION, AND MEDICARE COMPLIANCE

4.1 Lien Resolution — Condition Precedent. Claimant shall, prior to or contemporaneously with disbursement, resolve all known liens, including:

☐ Medicare conditional payments (CMS / BCRC) under 42 U.S.C. § 1395y(b)(2)
☐ Medicare Advantage Plan (Part C) reimbursement claims
☐ Hawaii Med-QUEST / Medicaid liens under HRS § 346-37
☐ ERISA-plan / private health insurer subrogation
☐ Hospital, provider, or workers' compensation liens
☐ Veterans Administration / TRICARE liens

4.2 Medicare Set-Aside. Claimant [is / is not] a current Medicare beneficiary and [has / has not] a reasonable expectation of Medicare enrollment within thirty (30) months. [IF YES] A Medicare Set-Aside Arrangement ("MSA") in the amount of $[____] is attached as Exhibit B and shall be funded from the Settlement Amount as allocated in § 1.2.

4.3 Hold Harmless. Claimant shall indemnify, defend, and hold harmless the Released Parties from any lien, claim, or demand asserted by Medicare, Medicaid, any ERISA plan, or any other lienholder relating to the care at issue.

4.4 Final Lien Letters. Disbursement shall not occur until Claimant's counsel obtains final demand letters or written confirmation of resolution from each lienholder identified in § 4.1.

5. CONFIDENTIALITY

5.1 Confidential Terms. The Parties shall keep the existence and terms of this Agreement confidential, except for disclosures to: (a) attorneys, accountants, tax advisors, and lienholders bound by professional duties of confidentiality; (b) immediate family; (c) NPDB and required regulatory authorities; (d) as required by court order, subpoena, or law (including HRS ch. 453 and ch. 671); and (e) as necessary to enforce this Agreement.

5.2 No Public Statements. Claimant shall make no statement to the press, social media, online review sites, or third parties that disparages the Released Parties or that mischaracterizes the settlement.

5.3 Inquiries. In response to inquiries, the Parties may state only that "the matter has been resolved."

5.4 Liquidated Damages. A material breach of § 5.1 or § 5.2 entitles the non-breaching Released Parties to liquidated damages of $[____] per breach, the Parties acknowledging that actual damages would be difficult to calculate.

6. TAX TREATMENT

6.1 IRC § 104(a)(2). The Parties intend that amounts allocated to physical injury and physical sickness (Sections 1.2 lines for medical expenses, pain and suffering associated with physical injury, and consortium derivative thereof) qualify for exclusion from gross income under IRC § 104(a)(2). Amounts allocated to lost wages or punitive components, if any, are not excludable.

6.2 No Tax Advice. No Party or its counsel has provided tax advice to any other Party. Each Party shall consult its own tax advisor. The Released Parties make no representation regarding the deductibility, taxability, or reporting characterization of any payment.

6.3 Form 1099. The Liability Carrier shall issue any required IRS Form 1099 in accordance with applicable law (typically Form 1099-MISC, Box 10, for amounts paid to claimant's counsel; no 1099 for IRC § 104(a)(2) physical-injury components paid directly to claimant).

7. DISMISSAL AND COURT APPROVAL

7.1 Dismissal with Prejudice. Within [ten (10)] days after clearance of payment, Claimant shall file a Stipulation for Dismissal with Prejudice in [Civil No. __________], each side to bear its own costs and fees except as set forth herein.

7.2 Minor / Incapacitated Claimant. [IF APPLICABLE] This Agreement is contingent upon approval by the [Circuit Court of the ___ Circuit] as required for compromise of a minor's or incapacitated person's claim under Hawaii Family Court Rules / probate procedure. Counsel shall file the petition within [___] days.

7.3 Wrongful Death / Survival Apportionment. [IF APPLICABLE] Apportionment among statutory beneficiaries under HRS § 663-3 is attached as Exhibit C and is subject to probate court approval.

8. GENERAL PROVISIONS

8.1 Governing Law. Hawaii law without regard to conflict-of-laws principles.

8.2 Venue. Exclusive venue is the [Circuit Court of the ___ Circuit, State of Hawaii] for any dispute arising from or relating to this Agreement.

8.3 Entire Agreement. This Agreement (with Exhibits) is the entire agreement and supersedes all prior negotiations and writings.

8.4 Amendments. Only in a writing signed by all Parties.

8.5 Severability. Invalid provisions shall be reformed to the minimum extent necessary; the remainder remains in force.

8.6 Counterparts; Electronic Signatures. Counterparts and electronic signatures (HRS ch. 489E) are deemed originals.

8.7 Voluntary Execution; Independent Counsel. Each Party acknowledges it has had the opportunity to consult with independent counsel and executes this Agreement voluntarily, with full understanding of its terms.

8.8 Drafting. No presumption against the drafter shall apply.

8.9 Attorneys' Fees. The prevailing Party in any action to enforce this Agreement is entitled to reasonable attorneys' fees and costs, including under HRS § 607-14.

ACKNOWLEDGMENTS

☐ Claimant has read this Agreement, understands it, and signs voluntarily.
☐ Claimant has had the opportunity to consult independent counsel.
☐ Claimant understands the release extends to known and unknown claims.
☐ Claimant understands that NPDB reporting will occur as described in Section 3.
☐ Claimant understands the tax allocation in Section 1.2 and has been advised to seek independent tax advice.
☐ Claimant has resolved or will resolve all liens identified in Section 4.

EXECUTION

Approved as to form:

NOTARIZATION (Recommended)

STATE OF HAWAII )
) ss.
COUNTY OF [_______] )

On this [___] day of [MONTH], [YEAR], before me personally appeared [CLAIMANT NAME], known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged executing the same voluntarily for the purposes therein contained.

________________________________
Notary Public, State of Hawaii
My commission expires: [DATE]

EXHIBITS

• Exhibit A — Structured Settlement / Qualified Assignment Terms (if applicable)
• Exhibit B — Medicare Set-Aside Arrangement (if applicable)
• Exhibit C — Wrongful Death / Survival Apportionment (if applicable)
• Exhibit D — Final Lien Resolution Letters
• Exhibit E — W-9 of Payee(s)

SOURCES AND REFERENCES

• HRS § 663-8.5 — Definition of pain and suffering / noneconomic damages
• HRS § 663-8.7 — $375,000 noneconomic damages cap
• HRS § 663-10.9 — Joint and several liability and cap exceptions
• HRS ch. 671 — Medical Torts
• HRS § 671-12 — MICP prerequisite to suit
• HRS § 346-37 — Med-QUEST / Medicaid lien
• 45 C.F.R. Part 60 — NPDB reporting
• 42 U.S.C. § 1395y(b)(2) — Medicare Secondary Payer Act
• IRC § 104(a)(2); IRC § 130 — Tax treatment of personal injury recoveries / qualified assignments