Hawaii Supreme Court Discusses Informed Consent Requirements In Medical Malpractice Case

162017_132140396847214_292624_nIn its opinion filed on May 3, 2016, the Supreme Court of the State of Hawai’i (“Hawaii Supreme Court”) discussed the requirements for a Hawaii physician to obtain informed consent from a patient for medical treatment, stating that the standard for a physician’s duty to disclose information to the patient is prescribed by HRS § 671-3(b).

The Hawaii Supreme Court stated that a plaintiff must prove the following elements for a claim of negligent failure to obtain informed consent: (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 § 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.”

In the case the Hawaii Supreme Court was deciding, the Hawaii medical malpractice plaintiff had undergone back surgery performed by the defendant surgeon after which he alleged that he was worse off than before the surgery. The plaintiff filed his Hawaii medical malpractice lawsuit against the defendant surgeon in which he alleged that the defendant surgeon had negligently failed to obtain his informed consent for the surgery by failing to properly inform him of the risks involved with the surgery and misrepresented the lack of risk involved.

The plaintiff alleged in his Hawaii medical malpractice lawsuit that the defendant surgeon told him that the type of surgery to be performed had a ninety-percent success rate, that he would be “dancing in a couple of days” after the surgery, and that he would be pain-free. The plaintiff’s claim of negligent failure to obtain informed consent was based upon a violation of HRS § 671-3(b)(5)(A) (i.e., that a physician discloses the “recognized material risks of serious complications or mortality associated with . . . [t]he proposed treatment or procedure”).

The Hawaii Supreme Court stated that under HRS § 671-3(b)(5)(A), the plaintiff was required to provide evidence that the risks to which he was subjected, namely a worsened condition and increased pain, were “recognized material risks of serious complications or mortality . . . associated with [t]he proposed treatment or procedure.” The Hawaii Supreme Court further stated, however, 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 stated that the “disclosure of the probabilities of therapeutic success intended” is essentially equivalent to the “anticipated results of the proposed treatment or procedure”).

The Hawaii Supreme Court held that “[I]n 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, and the circuit court and the ICA erred in relying upon them instead of on the statute. 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). Consequently, [the defendant surgeon] 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 held that the plaintiff provided sufficient medical evidence, through the defendant surgeon’s deposition testimony, that increased pain and a worsened condition were “recognized material risks of serious complications” of the back surgery performed, and thus this was information required to be disclosed under HRS § 671-3(b)(5)(A).

Whether the defendant surgeon accurately disclosed these “material risks of serious complications” associated with the surgery is disputed: the plaintiff contends that the defendant surgeon told him (1) the proposed back surgery had a ninety-percent success rate, (2) the plaintiff would be “up and dancing” in a few days, and (3) the plaintiff would be pain free; on the other hand, the defendant surgeon contends that (1) he does not discuss percentages with patients, (2) he does not recall discussing with the plaintiff that he would be “up and dancing” after the procedure, although it would be “preposterous” to tell a patient that he or she would be “dancing three days after lumbar spine surgery,” and (3) he denied “unequivocally” that he told the plaintiff that he would have no further pain.

The Hawaii Supreme Court held that 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 surgeon accurately disclosed the “recognized material risks of serious complications” associated with the procedure performed. The Hawaii Supreme Court held that the circuit court and the ICA erred in concluding that the defendant surgeon 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 state who may investigate your lack of informed consent claim for you and represent you in an informed consent case, if appropriate.

Click here to visit our website or telephone us toll-free in the United States at 800-295-3959 to be connected with medical malpractice attorneys in your state who may assist you with your lack of informed consent claim.

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This entry was posted on Wednesday, September 7th, 2016 at 5:24 am. Both comments and pings are currently closed.

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