Hawaii's Uncapped Fees, Despite Its Damages Cap

Hawaii caps what you can recover for pain and suffering broadly. It caps what your attorney can charge not at all — a genuine split worth understanding.

A genuine split worth noticing

Hawaii caps non-economic damages at $375,000 in almost any personal injury case under HRS § 663-8.7 — one of the broader damages caps nationally. But the state imposes no statutory cap whatsoever on attorney contingency fees, in any type of case, including medical malpractice. These are two entirely separate legal questions, and Hawaii's legislature chose to regulate only one of them.

It wasn't for lack of trying

Between 2008 and 2010, as part of the same legislative push that produced the current damages cap, lawmakers also introduced bills proposing a tiered fee limit specifically for medical tort cases. Unlike the damages cap, these fee-limiting provisions never made it into law — Hawaii's attorney fee rules remained governed solely by the general reasonableness standard in Rule of Professional Conduct 1.5.

A real contrast with Florida's constitutional approach

Florida caps medical malpractice attorney fees directly in its state constitution — a limit voters approved in 2004 that the legislature can't simply repeal through ordinary lawmaking. Hawaii has no equivalent limit of any kind, constitutional or statutory, for malpractice fees specifically, or for any other type of personal injury case.

Hawaii's position is actually the more common one nationally

Most states leave the contingency fee percentage to private negotiation between attorney and client, subject only to a general reasonableness standard. A cap of any kind — whether statutory, like several states' medical malpractice limits, or constitutional, like Florida's — is the exception rather than the rule. Hawaii's uncapped approach puts it in the majority on this specific point, even while being an outlier on how broadly it caps damages.

Hawaii's uncapped fees — frequently asked questions

Does Hawaii cap attorney fees the same way it caps damages?

No. Hawaii caps non-economic damages broadly under HRS section 663-8.7, but imposes no statutory cap on attorney contingency fees at all, in any type of case.

Isn't it unusual for a state with a broad damages cap to have no fee cap?

It's a genuine split worth noting. Some states that cap damages, particularly in medical malpractice, pair that with a fee cap; Hawaii capped damages broadly but left fees entirely to private negotiation.

Did Hawaii ever come close to capping attorney fees?

Yes. Bills from 2008 to 2010 proposed a tiered fee cap specifically for medical tort cases, packaged alongside the damages cap that did pass. The fee provisions did not advance into law.

How does Hawaii's approach compare to Florida's constitutional medical malpractice fee cap?

Florida's cap is written into its state constitution and applies regardless of legislative preference. Hawaii has no equivalent limit at all, constitutional or statutory, for medical malpractice fees.

Is an uncapped approach like Hawaii's common nationally?

Yes. Most states leave the contingency fee percentage to private agreement between attorney and client, subject only to a general reasonableness standard — a cap of any kind is the exception, not the rule.

This page provides general guidance only and is not legal advice. Figures are based on general US attorney fee practice and Hawaii legislative history, verified per our methodology. Confirm how these rules apply to a specific claim with a licensed attorney in the relevant state before acting.