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Electronically Filed
Supreme Court
SCWC-13-0000388
03-MAY-2016
08:29 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
EDWIN GARCIA,
Petitioner/Plaintiff-Appellant,
vs.
BERNARD ROBINSON, M.D.,
Respondent/Defendant-Appellee.
SCWC-13-0000388
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000388; CIV. NO. 10-1-2338)
MAY 3, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.
OPINION OF THE COURT BY POLLACK, J.
In Ray v. Kapiolani Medical Center, 125 Hawaiʻi 253,
259 P.3d 569 (2011), this court noted that Hawaiʻi Revised
Statutes (HRS) § 671-3(b) supplies the standard for a
physician’s duty to disclose information to the patient. Id. at
266, 259 P.3d at 582. Following Ray, in Ngo v. Queen’s Medical
Center, 136 Hawaiʻi 54, 358 P.3d 26 (2015), we held that the
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prior formulation of the first element of the common law medical
tort of negligent failure to obtain informed consent had changed
from “the physician owed a duty to disclose the risk of one or
more of the collateral injuries that the patient had suffered”
to “the physician owed a duty of disclosure under HRS § 671-
3(b).” Id. at 68-69, 358 P.3d at 40-41. In this case, we apply
Ngo and further clarify our common law as to the nature and
source of expert medical evidence required to establish a prima
facie case of negligent failure to obtain informed consent.
I. BACKGROUND
A. Garcia’s Injury and Medical Treatment
Edwin Garcia suffered a lower back injury at work and
sought medical treatment from his then-primary care provider,
who completed an initial evaluation of his condition. He
subsequently received medical and conservative therapy to treat
his back injury. However, Garcia felt that this treatment did
not sufficiently improve his condition to allow him to perform
satisfactorily at work. An MRI of his back showed evidence of
discogenic disease with mild bulge and neural encroachment in
his lower back, and he was referred to Dr. Bernard Robinson for
a neurosurgical consultation.
Garcia first consulted with Dr. Robinson regarding his
injury on January 11, 2008. Prior to making his decision to
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undergo lumbar spine surgery, Garcia generally discussed with
Dr. Robinson the risks and consequences involved with the
proposed surgery. During that discussion, Garcia stated that
Dr. Robinson told him the surgery had a ninety-percent chance of
success, he would be pain free, and he would be “up and dancing
in three days.” Based on these representations, Garcia related
that he decided to proceed with the surgery.
At his deposition, Dr. Robinson testified that he did
not recall communicating that Garcia would be “up and dancing”
after the surgery, stated that he does not discuss percentages
with his patients, and denied “unequivocally” that he told
Garcia he would have no further pain. Dr. Robinson stated that
it would be “preposterous” to tell a patient that he would be
“dancing three days after lumbar spine surgery” because lumbar
spine surgery is “one of the most painful experiences that
patients undergo in surgery” and it takes time to recover from
this procedure. He also indicated that he discusses the risk of
increased pain with every patient because there is a risk that
patients might experience further pain from this procedure.
Dr. Robinson related that he specifically advised
Garcia of other surgical risks associated with the proposed
procedure, including allergy, hemorrhage, infection, technical
problems, paralysis, failure of surgery to be beneficial, and
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even death. He indicated that he discusses the same list of
risks with every patient in addition to other risks depending on
the situation. Dr. Robinson testified that he counsels each
patient several times in extensive detail before performing the
surgery to ensure that the patient is fully informed and really
wants to undergo surgery. He tells every patient about
potential technical problems and explains that “surgery is a
very involved complex production of treatment and there are some
things that can go wrong.”
Although Dr. Robinson denied discussing percentages
with Garcia, he testified that generally he tries to imply that
there is a better chance that the patient’s condition will
improve after the surgery than following the patient’s current
course of treatment. Dr. Robinson also stated that he told
Garcia that surgery for discogenic disease could “resolve,” or,
in other words, could improve his pain symptoms. He indicated
that he carefully advised Garcia of his diagnosis and treatment
options and urged Garcia, before undergoing surgery, to continue
conservative treatment until it no longer provided sufficient
relief. Dr. Robinson further explained that the surgery
performed was “not of an emergency nature” and expressed his
view that Garcia could have continued conservative treatment.
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On February 28, 2008, Garcia signed a “Consent to
Operation Postoperative Care, Medical Treatment, Anesthesia
and/or Procedure” form (Consent Form). The Consent Form
indicated that Garcia authorized Dr. Robinson to treat
“degenerative lumbar disc and spine disease at L4-5-S1,” or, in
lay terms, “pinched nerves in the lower back causing leg pains.”
The pre-printed language on the Consent Form stated that “[t]he
procedure(s) planned for treatment of my condition(s) has (have)
been explained to me by my physician as follows,” to which Dr.
Robinson handwrote in “L4-5 microlaminectomy and foraminotomy
with discectomy if needed after intraoperative examination of
the disc.” This meant that Dr. Robinson would perform a “low
back spinal surgery to decompressed pinched nerves as
necessary.”
The pre-printed language of the Consent Form also
stated the following: “I have been informed that there are many
significant risks, such as severe loss of blood, infection,
cardiac arrest and other consequences that can lead to death or
permanent or partial disability, which can result from any
procedure” and “[n]o promise or guarantee has been made to me as
to result or cure.” Dr. Robinson handwrote on the bottom of the
Consent Form, under the heading “additional comments,” that
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“[r]isks include allergy, hemorrhage, infection, technical
problems, paralysis, and death.”1
Dr. Robinson testified that he also prepared an
Admission Form as a requirement to have Garcia admitted to the
hospital for surgery. The Admission Form indicated that the
“Chief Complaint” was “low back and left leg pain from [a] work-
related accident.” It noted that Garcia walked with a cane and
showed an “antalgic gait with a short stance phase on the left
side,” which Dr. Robinson explained meant that it looked like
Garcia experienced pain when he walked. Dr. Robinson also noted
on the Admission Form under “Physical Examination” that Garcia
“has [a] low tolerance to standing in 1 position for more than 5
minutes including bending and standing” and “sits toward the
1
In addition, under the heading “Full Disclosure” on the Consent
Form, there was other pre-printed language, which read as follows:
I agree that my physician has informed me of the:
a) Diagnosis or probable diagnosis,
b) Nature of the treatment or procedures recommended,
c) Risks or complications involved in such treatment or
procedures,
d) Alternative forms of treatment, including non-treatment,
available,
e) Anticipated results of treatment.
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right side of his buttock to avoid pressure on the left sciatic
area.”
Under the heading “Plan” of the Admission Form, the
following language was printed:
The patient was carefully advised of his diagnosis and
treatment options. He was told that surgery for discogenic
disease could resolve and [sic] risk of allergy,
hemorrhage, infection, technical problem, paralysis,
failure of surgery to be beneficial and even death. He was
advised that bladder and bowel control could also be
impaired apparently if things go poorly. He was advised
that he can still choose to live with the discomfort and be
treated conservatively as in the past but he chose to
proceed with surgical treatment and gave his informed
consent.
Garcia’s signature does not appear on the Admission
Form, and there appears to be no place on it for the patient’s
signature. Garcia testified that he understood that
conservative treatment combined with physical therapy and pain
medications was not going to improve his condition and allow him
to return to work.
On March 4, 2008, Dr. Robinson performed surgery on
Garcia, which included a “bilateral L4-5 and right L5-S1 partial
laminectomy with forminatomy,” and Dr. Robinson later expressed
his opinion that the operation was done properly. However,
after the surgery, Garcia reported increased low back pain,
uncontrolled shaking of his left leg, and numbness in his left
leg and foot. He also described suffering emotionally,
experiencing depression, and having trouble sleeping. Garcia
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related that he received treatment for mental and/or emotional
disturbance after the surgery.
On March 13, 2008, Dr. Robinson evaluated Garcia’s
post-surgery condition. Garcia reported needing a cane to walk
and experiencing increased pain in his lower back such that he
could not sit on both buttocks to distribute his weight evenly
because his left leg would become numb. Dr. Robinson testified
that he thought Garcia lacked control over his “right leg or
perhaps both legs” and observed his “right leg shaking
uncontrollably” during the appointment.
On April 4, 2008, Garcia returned for another post-
surgical consultation. Dr. Robinson suspected and noted in his
report that Garcia was experiencing “failed back syndrome,”
which meant that Garcia did not experience any relief after
receiving the surgical treatment. Garcia met with Dr. Robinson
several more times as a follow-up to his surgical procedure,
with the last visit on December 11, 2008. Before this last
visit, a postoperative MRI demonstrated a “mild bulging disk
above the level of the surgery” and showed that “the nerves
looked like they were decompressed.”
Garcia stated that he later consulted with Jeffrey
Lee, M.D., who informed him that he had a “bulging disc above
the level of surgery” caused by the surgery and that the
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“surgery should have been at a different level.” After
conferring with Jon Scarpino, M.D., Garcia indicated that he
learned that the success rate of the surgery was fifty-percent
or less. Garcia related that his condition did not improve
after the surgery or leave him free of pain; rather, his left
leg deteriorated after the surgery and his lower back pain
worsened. He reported that, despite the pain in his back before
the surgery, he did not need to use a cane whereas he needed to
use a cane after the surgery.2
B. Circuit Court Proceedings
On November 1, 2010, Garcia filed a Complaint against
Dr. Robinson in the Circuit Court of the First Circuit (circuit
court), setting forth claims of medical negligence and negligent
failure to obtain informed consent. In the Complaint, Garcia
asserted, inter alia, that Dr. Robinson “failed to properly
inform [him] of the risks involved with the surgery and
misrepresented the lack of risk involved.” Specifically, Garcia
stated that Dr. Robinson informed him that the type of surgery
performed had a ninety-percent success rate and that Garcia
would be “dancing in a couple of days” after the surgery.
2
Garcia subsequently filed a medical malpractice claim before the
Medical Claims Conciliation Panel, which issued its decision on September 3,
2010.
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Garcia contended that, as a consequence of Dr. Robinson’s
negligence in performing the surgery and in advising him of the
risks, he suffered serious bodily injuries, experienced physical
and emotional pain and suffering, incurred expenses for health
care and products, and endured loss of income and other damages.
Dr. Robinson filed an Answer denying Garcia’s claims
of negligence in performing the surgery and in informing him of
the risks associated with the surgery. Dr. Robinson
subsequently filed a Motion for Summary Judgment (MSJ). Dr.
Robinson contended, inter alia, that he was entitled to judgment
as a matter of law on Garcia’s claim of negligent failure to
obtain informed consent because Garcia did not have medical
expert testimony as to the “materiality” of the risk to support
his claim. Dr. Robinson maintained that HRS § 671-3(b) governs
the physician-owed duty of disclosure and contended that to
proceed on a lack of informed consent claim, a plaintiff must
adduce expert testimony as to “the nature of risks inherent in a
particular treatment, the probabilities of therapeutic success,
the frequency of the occurrence of particular risks, and the
nature of available alternatives to treatment” (materiality
factors). Because Garcia did not have expert testimony as to
the materiality factors, Dr. Robinson argued that Garcia’s lack
of informed consent claim must be “dismissed.” Additionally,
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relying on his own declaration that his care and treatment of
Garcia was not a proximate cause of Garcia’s injuries, Dr.
Robinson maintained that Garcia’s claims failed for lack of an
expert opinion establishing that the surgery was the proximate
cause of Garcia’s injuries.3
At the September 11, 2012 MSJ hearing, Garcia
contended that Dr. Robinson did not accurately inform him of the
chances of success of the proposed surgical procedure and
misrepresented the anticipated results in indicating that there
was a ninety-percent chance of success and that he would be “up
and dancing” in a couple of days. Relying on Dr. Robinson’s
deposition testimony regarding what risks were necessary to
disclose, Garcia argued that he had provided sufficient
testimony to advance his lack of informed consent claim to
trial. Garcia maintained that he did not need to present
additional expert testimony to confirm Dr. Robinson’s testimony.
At the close of the hearing, the circuit court
determined that a claim of negligent failure to obtain informed
consent requires that a plaintiff establish the materiality of
the risk asserted by providing expert testimony as to the common
3
In his MSJ, Dr. Robinson also contended that Garcia’s medical
negligence claim must be “dismissed” because there was no medical expert
opinion with respect to the applicable standard of care, a breach of that
standard of care, or the proximate cause of Garcia’s injuries.
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law materiality factors. These materiality factors were stated
by the court as follows: (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. In a colloquy with the circuit court, Garcia’s
counsel acknowledged that Dr. Robinson only testified as to the
first and second materiality factors. Consequently, the circuit
court concluded that Garcia did not meet all four factors
required to establish the materiality of the risks and orally
granted Dr. Robinson’s MSJ as to both claims set forth in the
Complaint. The circuit court issued its Order Granting MSJ and
entered Judgment in favor of Dr. Robinson as to all claims
arising out of the Complaint.4
C. Appellate Proceedings
On appeal to the Intermediate Court of Appeals (ICA),
Garcia contended, inter alia, that the circuit court erred in
concluding that expert testimony as to the four common law
materiality factors is required to establish a prima facie case
4
The circuit court did not address, either in its oral ruling or
in the subsequent written Order Granting MSJ, Dr. Robinson’s contention that
Garcia lacked sufficient evidence to demonstrate that the proximate cause of
his injuries was the surgery.
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for a claim of negligent failure to obtain informed consent.5
Garcia asserted that his claim was based upon a violation of Dr.
Robinson’s duty of disclosure under HRS § 671-3(b)(5)(A).
Garcia maintained that there is substantial evidence in the
record to conclude that Dr. Robinson failed to accurately advise
him of the material risks of serious complications associated
with the procedure, including increased pain, uncontrollable
shaking, and numbness in his feet and legs.
In response, Dr. Robinson argued that, under Hawaiʻi
case law, medical expert testimony as to all four materiality
factors is required to proceed on a claim of negligent failure
to obtain informed consent. Because his testimony did not
address all four materiality factors, Dr. Robinson contended
that it was not sufficient to satisfy the expert testimony
requirement for a lack of informed consent claim.
In its opinion, the ICA held that a plaintiff must
establish the materiality of the alleged risk and thus must
provide expert testimony as to all four common law materiality
factors. The ICA concluded that Garcia lacked expert testimony
as to two of the four materiality factors and thus failed to
5
Garcia did not challenge that portion of the circuit court’s
Order Granting MSJ and Judgment related to his medical negligence claim.
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“prove the materiality of the risk asserted.” Accordingly, the
ICA affirmed the circuit court’s Judgment.
II. STANDARD OF REVIEW
Appellate courts review an award of summary judgment
de novo under the same standard applied by the circuit court.
Thomas v. Kidani, 126 Hawaiʻi 125, 127-28, 267 P.3d 1230, 1232-33
(2011). This court articulated that standard as follows:
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Id. at 128, 267 P.3d at 1233 (quoting Fujimoto v. Au, 95 Hawaiʻi
116, 136, 19 P.3d 699, 719 (2001)). “A fact is material if
proof of that fact would have the effect of establishing or
refuting one of the essential elements of a cause of action or
defense asserted by the parties.” Id. at 129, 267 P.3d at 1234
(quoting Fujimoto, 95 Hawaiʻi at 136, 19 P.3d at 719).
The moving party bears the burden of demonstrating
that there is no genuine issue as to any material fact with
respect to the essential elements of the claim or defense and
must prove that the moving party is entitled to judgment as a
matter of law. French v. Haw. Pizza Hut, Inc., 105 Hawaiʻi 462,
470, 99 P.3d 1046, 1054 (2004). This court must review the
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evidence and inferences in the light most favorable to the non-
moving party. Thomas, 126 Hawaiʻi at 128, 267 P.3d at 1233.
III. DISCUSSION
In his Application for Writ of Certiorari, Garcia
asserts that the ICA erred in affirming the circuit court’s
requirement of adducing expert testimony upon the common law
materiality factors in order to maintain a prima facie case of
negligent failure to obtain informed consent. Thus, Garcia
contends that the ICA further erred in ruling that he did not
provide sufficient medical evidence to establish a prima facie
violation of Dr. Robinson’s statutory duty of disclosure.
A. A Physician’s Statutory Duty of Disclosure
This court has determined that the standard for a
physician’s duty to disclose information to the patient is
prescribed by HRS § 671-3(b). Ray v. Kapiolani Med. Ctr., 125
Hawaiʻi 253, 266, 259 P.3d 569, 582 (2011). In accordance with
Ray, we recently held that the first element of the common law
medical tort of negligent failure to obtain informed consent is
“subject to appropriate modification based on the specific
provisions of HRS § 671-3(b) alleged to have been violated.”
Ngo v. Queen’s Med. Ctr., 136 Hawaiʻi 54, 68-69, 358 P.3d 26, 40-
41 (2015). Thus, Ngo established that a plaintiff must prove
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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.
Id.
As to the first element of a claim of negligent
failure to obtain informed consent, 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:
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(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.
HRS § 671-3(b) (Supp. 2007); see also Ngo, 136 Hawaiʻi at 68-69,
358 P.3d at 40-41. Thus, with respect to the first element, a
plaintiff must provide evidence showing that the physician did
not disclose information as required under a subsection of
HRS § 671-3(b) prior to obtaining consent from the patient,
guardian or surrogate for a proposed medical or surgical
treatment or a diagnostic or therapeutic procedure. See, e.g.,
Ngo, 136 Hawaiʻi at 69, 358 P.3d at 41 (determining 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’”).
In this case, Garcia asserted in his Complaint that
Dr. Robinson failed to properly inform him of the risks involved
with the surgery and misrepresented the lack of risk involved.
He stated that Dr. Robinson told him that the type of surgery to
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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. Although Garcia did not specify in his
Complaint that his claim of negligent failure to obtain informed
consent was based upon a violation of HRS § 671-3(b)(5)(A), the
allegations in the Complaint clearly implicate this provision,6
which requires that a physician disclose the “recognized
material risks of serious complications or mortality associated
with . . . [t]he proposed treatment or procedure.” HRS § 671-
3(b)(5)(A); see Ngo, 136 Hawaiʻi at 70-71, 358 P.3d at 42-43
(finding that the plaintiffs did not waive additional lack of
informed consent claims for failing to assert in the complaint
the specific statutory provisions upon which their claim was
based because the allegations clearly implicated a physician’s
duty of disclosure under HRS § 671-3(b)). Accordingly, under
HRS § 671-3(b)(5)(A), Garcia 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.”
6
In his Opening Brief, Garcia identified that his claim was based
upon HRS § 671-3(b)(5)(A).
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At the summary judgment hearing, the circuit court
concluded that in order to establish a prima facie informed
consent claim, Garcia was required to establish the materiality
of the alleged risk by providing expert medical testimony as to
the four common law materiality factors: (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. Because Garcia lacked expert testimony as to the
third and fourth materiality factors, the circuit court held
that Garcia did not establish the materiality of the alleged
risk and consequently his claim failed. The circuit court thus
granted summary judgment in favor of Dr. Robinson. On appeal,
the ICA affirmed the circuit court’s reasoning and Judgment.
However, 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 evidentiary requirements for
an informed consent claim based on a violation of a specific
provision of HRS § 671-3(b) have been addressed in two recent
opinions of this court.
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In Ngo, we analyzed the plaintiffs’ informed consent
claim under HRS § 671-3(b)(5) and considered whether the
plaintiffs satisfied their evidentiary burden of showing a prima
facie violation of the defendant physician’s statutory duty of
disclosure. In that case, the plaintiffs’ minor child died
after the defendant physician treated her for nausea and
vomiting with an antiemetic medication. Ngo, 136 Hawaiʻi at 57,
358 P.3d at 29. The plaintiffs asserted a claim of negligent
failure to obtain informed consent based on the undisputed fact
that the treating physician did not give the plaintiffs any
information about the drug used to treat their minor child and
its risks and side effects and did not provide any information
regarding alternative treatments. Id. at 57-58, 69-70, 358 P.3d
at 29-30, 41-42. The circuit court granted summary judgment in
favor of the defendants, which the ICA affirmed on appeal. Id.
at 57, 358 P.3d at 29. The ICA concluded that the plaintiffs
did not meet their evidentiary burden with regard to proving the
“materiality of the risk of harm” because they failed to adduce
expert medical testimony as to all four materiality factors.
Id.
This court disagreed with the analysis of the ICA. We
did not apply the four common law materiality factors in
analyzing the plaintiffs’ claim of negligent failure to obtain
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informed consent based on an alleged violation of HRS § 671-
3(b)(5)(A), which requires disclosure of the “recognized
material risks of serious complication or mortality . . .
associated with the proposed treatment or procedure.” Id. at
67-70, 358 P.3d at 39-42. Instead, this court applied the
criteria set forth in the statute to determine whether the
plaintiffs satisfied their evidentiary burden to prove a prima
facie violation of the defendant physician’s statutory duty of
disclosure under HRS § 671-3(b)(5)(A). Id. at 68-69, 358 P.3d
at 40-41. Thus, we concluded that the plaintiffs adduced
sufficient expert testimony to establish prima facie that the
risk of harm that resulted was a “recognized material risk[] of
serious complication or mortality.” Id. at 69-70, 358 P.3d at
41-42.
In applying this analysis, the Ngo court noted that
one of the materiality factors, the probabilities of therapeutic
success, while not part of an informed consent claim based on an
alleged HRS § 671-3(b)(5)(A) violation, was information required
to be provided for a claim under HRS § 671-3(b)(3), the intended
and anticipated results of the proposed treatment or procedure.
Id. at 71, 358 P.3d at 43. In analyzing the HRS § 671-3(b)(3)
claim, the court applied a single materiality factor because
that factor coincided with the requirements of the statutory
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provision upon which the claim was based. Id. That is,
“disclosure of the probabilities of therapeutic success
intended” as required by the statute is essentially equivalent
to the common law formulation of the “anticipated results of the
proposed treatment or procedure.”
In Ray, this court reviewed the plaintiffs’ claim of
negligent failure to obtain informed consent under HRS § 671-
3(b)(4), which requires the physician to inform the patient of
the recognized alternative treatments or procedures, including
the option of not providing these treatments or procedures. The
court considered whether the defendant physician had a statutory
duty to disclose alternative dosages of the same medication
under HRS § 671-3(b)(4). Ray, 125 Hawaiʻi at 265-68, 259 P.3d at
581-84. Although the court mentioned the four materiality
factors, the court did not apply them to the facts of the case.
Id. at 268, 259 P.3d at 584. Instead, the court observed that
requiring the disclosure of alternative doses would not
“overwhelm” healthcare providers, as the defendant contended,
because a plaintiff would need to show that an alternative dose
is a “recognized alternative treatment.” Id. at 268, 259 P.3d
at 584. That is, the court noted that one of the materiality
factors, the nature of alternatives to treatment, coincides with
the requirements for a claim under HRS § 671-3(b)(4) because the
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wording of the statute (“recognized alternative treatments or
procedures”) is essentially the same as that factor. Id.
In light of the express statutory provisions of
HRS § 671-3(b),7 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, Dr.
Robinson was not entitled to judgment as a matter of law based
on lack of expert testimony as to the common law materiality
factors.
B. Sufficiency of Evidence to Support a Prima Facie Claim
In reviewing the circuit court’s award of summary
judgment, we apply the same standard as the circuit court.
Thomas v. Kidani, 126 Hawaiʻi 125, 127-28, 267 P.3d 1230, 1232-33
7
For an overview of the evolution of the informed consent
doctrine, including the “interplay between the common law and [HRS § 671-
3(b)],” see Ngo v. Queen’s Med. Ctr., 136 Hawaiʻi 54, 63-68, 358 P.3d 26, 34-
40 (2015). Ngo indicates that the common law formulation of the materiality
factors has been supplanted by the statutory requirements under HRS § 671-
3(b). Id.
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(2011). For a defendant physician to prevail on a motion for
summary judgment upon a claim of negligent failure to obtain
informed consent, “the pleadings, depositions, answers to
interrogatories, and admission on file, together with the
affidavits, if any, [must] show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Id. at 128, 267 P.3d at 1233
(quoting Fujimoto v. Au, 95 Hawaiʻi 116, 136, 19 P.3d 699, 719
(2001)). The defendant physician bears the burden of
demonstrating there is no genuine issue as to any material fact
with respect to the essential elements of the lack of informed
consent claim. French v. Haw. Pizza Hut, Inc., 105 Hawaiʻi 462,
470, 99 P.3d 1046, 1054 (2004). When the defendant physician
satisfies this initial burden, then the burden shifts to the
plaintiff to demonstrate “specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial.” See
id. (emphasis omitted) (quoting GECC Fin. Corp. v. Jaffarian, 79
Hawaiʻi 516, 521, 904 P.2d 530, 535 (App. 1995)).
Dr. Robinson maintains that he was entitled to summary
judgment as a matter of law on the informed consent claim in
this case because Garcia failed to adduce sufficient expert
testimony to proceed upon his claim under HRS § 671-3(b)(5).
Under this subsection, Garcia was required to establish that
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increased pain and a worsened condition were “recognized
material risks of serious complications” associated with the
back surgery performed. See Ngo, 136 Hawaiʻi at 67-68, 358 P.3d
at 39-40.
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.” Id. at 69, 358 P.3d at 41. In appropriate cases, a
defendant physician, by his or her own testimony, may satisfy
the plaintiff’s evidentiary burden. See id. at 71, 358 P.3d at
43 (recognizing that plaintiffs’ counsel elicited valid expert
testimony from the defendant-physician regarding recognized
alternative treatments); Carr v. Strode, 79 Hawaiʻi 475, 487, 904
P.2d 489, 501 (1995) (citing Nishi v. Hartwell, 52 Haw. 188,
196-97, 473 P.2d 116, 121 (1970)) (stating that a defendant-
physician’s testimony may satisfy the plaintiff’s evidentiary
burden).
At his deposition, Dr. Robinson testified that he
discusses the same list of risks with every patient in addition
to others depending on the situation and specifically advised
Garcia of surgical risks associated with the proposed procedure,
including allergy, hemorrhage, infection, technical problems,
paralysis, failure of surgery to be beneficial, and even death.
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Additionally, he related that he discusses the risk of increased
pain with every patient because there is a risk that patients
undergoing this type of back surgery might experience further
pain. Further, he testified that he tells every patient about
potential technical problems and explains that “surgery is a
very involved complex production of treatment and there are some
things that can go wrong.” He also stated that this type of
surgery “is one of the most painful experiences that patients
undergo in surgery” and takes time to fully recover. Based on
these statements, Dr. Robinson indicated that increased pain and
a worsened condition were “recognized material risks of serious
complications” associated with the surgery. Accordingly, Garcia
provided sufficient medical evidence, through Dr. Robinson’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 Dr. Robinson accurately disclosed these
“material risks of serious complications” associated with the
surgery was disputed. Garcia contends that Dr. Robinson told
him (1) the proposed back surgery had a ninety-percent success
rate, (2) Garcia would be “up and dancing” in a few days, and
(3) Garcia would be pain free. By contrast, Dr. Robinson
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maintains that (1) he does not discuss percentages with
patients, (2) he does not recall discussing with Garcia 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 Garcia that he would have no
further pain.
Viewing the evidence and inferences in the light most
favorable to Garcia, there is a disputed genuine issue of
material fact as to whether Dr. Robinson accurately disclosed
the “recognized material risks of serious complications”
associated with the procedure performed. Consequently, we hold
that the circuit court and the ICA erred in concluding that Dr.
Robinson was entitled to judgment as a matter of law on Garcia’s
claim of negligent failure to obtain informed consent under
HRS § 671-3(b)(5)(A).
IV. CONCLUSION
For the foregoing reasons, we vacate in part the ICA’s
June 29, 2015 Judgment on Appeal and the circuit court’s
Judgment as to the claim of negligent failure to obtain informed
consent and remand the case to the circuit court for further
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proceedings consistent with this opinion.8 We otherwise affirm
the ICA’s June 29, 2015 Judgment on Appeal and the circuit
court’s Judgment.
Michael P. Healy and /s/ Mark E. Recktenwald
Charles H. Brower
for petitioner /s/ Paula A. Nakayama
Thomas E. Cook and /s/ Sabrina S. McKenna
Edquon Lee
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
8
In granting Dr. Robinson’s MSJ, the circuit court did not address
Dr. Robinson’s contention as to a lack of showing of causation in its oral
ruling or written order. On remand, this issue may be further addressed as
appropriate.
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