In its opinion filed on May 3, 2016, the Supreme Court of the State of Hawai’i (“Hawaii Supreme Court”) discussed the nature and source of expert medical evidence required to establish a prima facie case of negligent failure to obtain informed consent.
Negligent Failure To Obtain Informed Consent
In order to prove negligence in obtaining the informed consent of a patient with regard to medical treatment in Hawaii, a plaintiff must prove the following elements: (1) the physician owed a duty of disclosure under HRS § 671-3(b); (2) the physician breached that duty; (3) the patient suffered injury; (4) the physician’s breach of duty was a cause of the patient’s injury in that (a) the physician’s treatment was a substantial factor in bringing about the patient’s injury and (b) a reasonable person in the plaintiff patient’s position would not have consented to the treatment that led to the injuries had the plaintiff patient been properly informed; and (5) no other cause is a superseding cause of the patient’s injury.
HRS Section 671-3(b)
HRS § 671-3(b) sets forth the information that must be provided prior to obtaining consent for a proposed treatment or procedure: (b) The following information shall be supplied to the patient or the patient’s guardian or legal surrogate prior to obtaining consent to a proposed medical or surgical treatment or a diagnostic or therapeutic procedure: (1) The condition to be treated; (2) A description of the proposed treatment or procedure; (3) The intended and anticipated results of the proposed treatment or procedure; (4) The recognized alternative treatments or procedures, including the option of not providing these treatments or procedures; (5) The recognized material risks of serious complications or mortality associated with: (A) The proposed treatment or procedure; (B) The recognized alternative treatments or procedures; and (C) Not undergoing any treatment or procedure; and (6) The recognized benefits of the recognized alternative treatments or procedures. (emphasis added)
The Four Common Law Materiality Factors
The four common law materiality factors are: (1) the nature of the risks inherent in a particular treatment; (2) the probabilities of therapeutic success; (3) the frequency of the occurrence of particular risks; and (4) the nature of available alternatives to treatment.
The Hawaii Supreme Court stated that in proving a violation of HRS § 671-3(b)(5)(A), a plaintiff must present evidence “to establish prima facie that the risk of harm to which the plaintiff was subjected is an undisclosed ‘recognized material risk of serious complications or mortality associated with . . . [t]he proposed treatment or procedure’”.
The Hawaii Supreme Court stated that under HRS § 671-3(b), a plaintiff is not required to provide evidence pertaining to the four common law materiality factors in order to establish a prima facie violation of a physician’s duty based upon a particular subsection of HRS § 671-3(b).
The Hawaii Supreme Court held that in light of the express statutory provisions of HRS § 671-3(b), the common law materiality factors do not apply to a claim of negligent failure to obtain informed consent (although it is not erroneous for a court to apply a materiality factor when that factor is identical to the statutory requirements). HRS § 671-3(b) governs the analysis, and it is error to require evidence upon a materiality factor when that factor does not coincide with the requirement of the applicable subsection of HRS § 671-3(b)). Therefore, in the case it was deciding, the defendant doctor was not entitled to judgment as a matter of law based on lack of expert testimony as to the common law materiality factors.
The Hawaii Supreme Court stated that although expert testimony is not required under HRS § 671-3(b), “expert testimony is typically necessary to establish the medical information statutorily required to be disclosed.” However, in appropriate cases, a defendant physician, by his or her own testimony, may satisfy the plaintiff’s evidentiary burden (in the case it was deciding, the defendant doctor’s deposition testimony, that increased pain and a worsened condition were “recognized material risks of serious complications” of the back surgery performed, was information required to be disclosed under HRS § 671-3(b)(5)(A), and the Hawaii Supreme Court held that the plaintiff had met his evidentiary burden by providing sufficient medical evidence).
The Hawaii Supreme court held that in viewing the evidence and inferences in the light most favorable to the plaintiff, there is a disputed genuine issue of material fact as to whether the defendant doctor accurately disclosed the “recognized material risks of serious complications” associated with the procedure performed, and the circuit court and the intermediate appellate court erred in concluding that the defendant doctor was entitled to judgment as a matter of law on the plaintiff’s claim of negligent failure to obtain informed consent under HRS § 671-3(b)(5)(A).
Source Garcia v. Robinson, SCWC-13-0000388.
If a physician failed to obtain your informed consent regarding medical treatment or a medical procedure in Hawaii or elsewhere in the United States, you should promptly consult with a medical malpractice lawyer in Hawaii or in your U.S. state who may investigate your lack of informed consent claim for you and represent you in an informed consent case, if appropriate.
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