No. SCAP-22-0000699, Wednesday, April 3, 2024, 5 p.m.

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 KATARINA HOKULANI PANOKE GEC, Plaintiffs-Appellees, vs. DEPARTMENT OF HEALTH, STATE OF HAWAI‘I; 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, and GEO CARE, INC., GEO CARE, LLC, CORRECT CARE, LLC, CORRECT CARE SOLUTIONS, LLD dba THE COLUMBIA REGIONAL CARE CENTER, Defendants-Appellants.

[ Listen to the audio recording in MP3 format ]

[ Watch the video recording on YouTube ]

The above-captioned case was set for oral argument on the merits at:

William S. Richardson School of Law
Classroom 2 (Courtroom) and
         Classroom 3 (Overflow)
2515 Dole Street
Honolulu, HI 96822

The oral argument was also livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television.

Attorneys for Defendants-Appellants GEO CARE, INC., GEO CARE, LLC, CORRECT CARE, LLC, CORRECT CARE SOLUTIONS, LLC dba THE COLUMBIA REGIONAL CARE CENTER:

          Jeffrey S. Portnoy, Trisha L. Nishimoto and Troy C. Young of Cades Schutte

Attorneys for Plaintiffs-Appellees HELG ADMINISTRATIVE SERVICES, LLC, as Conservator for CURTIS POMAIKAI PANOKE, aka CURTIS P. PANOKE, aka CURTIS PANOKE, an Incapacitated Person, and KATARINA HOKULANI PANOKE GEC:

          Matson Kelley and Alex Wilkins of the Law Offices of Kelley & Wilkins, LLC  

NOTE:  Order granting Application for Transfer, filed 03/13/23.

COURT:  Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

This appeal presents an important issue:  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-appellants (Geo Care Inc, et al.) point to Halberg v. Young, 41 Haw. 634, 642 (1957), in which this court noted “no action exists in favor of a child for injuries sustained by the parent not resulting in the parent’s death.”  Halberg held that a minor child’s complaint for damages arising out of their mother’s disability 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.

The plaintiffs-appellees (including the adult child of the individual now in a persistent vegetative state) point to Masaki v. General Motors Co., 71 Haw. 1, 22, 780 P.2d 566, 578 (1989), which 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 19-20, 566 P.2d at 577.  That case also footnoted the following observation, which appears to have left open the question as to whether Halberg‘s holding should be revisited:

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, 566 P.2d at 576 n.8.

The plaintiffs-appellees also argue that the United States District Court for the District of Hawaii interpreted Masaki to have implicitly overruled Halberg in order to recognize an adult child’s claim for loss of parental consortium when a parent is injured.  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. U.S., 2015 WL 1931082 (D.Haw. Apr. 21, 2015) (following Marquardt).

This appeal provides this court with an opportunity to clarify Hawai‘i law on a cause of action that has been in dispute.