FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-MAR-2021
07:54 AM
Dkt. 58 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
MARILYN ALGHUSSEIN, Plaintiff-Appellant,
v.
KENNETH T. KAAN, M.D., KENNETH T. KAAN, M.D., INC.,
Defendants-Appellees,
and
JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5,
DOE LLCS 1-5, DOE PARTNERSHIPS 1-5, DOE NON-PROFIT
ORGANIZATIONS 1-5, and DOE GOVERNMENTAL AGENCIES 1-5,
Defendants
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC141001624)
MARCH 25, 2021
HIRAOKA, PRESIDING JUDGE, WADSWORTH AND NAKASONE, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
Plaintiff-Appellant Marilyn Alghussein (Alghussein)
underwent surgery performed by Defendants-Appellees Kenneth T.
Kaan, M.D., and Kenneth T. Kaan, M.D., Inc. (collectively,
Dr. Kaan). There was a bad result. Alghussein sued Dr. Kaan,
claiming he failed to obtain her informed consent for the
surgery. The circuit court entered two orders granting summary
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
judgment in favor of Dr. Kaan.1 A Judgment was entered on
January 6, 2017. Alghussein appealed. We hold that Alghussein
presented evidence creating a genuine issue of material fact
about whether Dr. Kaan fully complied with the Hawai#i medical
informed consent statute, Hawaii Revised Statutes (HRS) § 671-3
(Supp. 2008). We vacate the Judgment in part and remand for
proceedings consistent with this opinion.
BACKGROUND
Alghussein, who was 62 years old, was experiencing low
back pain. She saw Dr. Kaan, an orthopedic surgeon. Dr. Kaan
diagnosed degeneration of the disc between Alghussein's 4th and
5th lumbar vertebrae. On April 20, 2009, Dr. Kaan performed L4-5
fusion surgery using the "extreme lateral interbody fusion"
(XLIF) procedure, in which the patient's spine is approached from
the side. The surgery was performed at The Queen's Medical
Center, using neuromonitoring equipment made by NuVasive, Inc.2
A NuVasive representative was present during the surgery.
Alghussein signed a Consent Form four days before her
surgery. The Consent Form stated, in relevant part:
(4) I have been informed that there are many significant
risks, such as severe loss of blood, infection,
cardiac arrest, and other consequences including:
nerve/blood vessel damage, poor results, nonunion,
loss of fixation that can lead to death or permanent
or partial disability, which can result from any
procedure.
. . . .
(10) I have been informed that a representative(s) of one
or more medical device manufacturer(s) or other
commercial vendor(s) ("Representative") may be present
at the time of my surgical procedure. I understand
that the Representative(s) will not direct or perform
my surgery, but may be available to my surgeon as a
resource. I hereby consent to the presence of the
Representative(s) at my surgical procedure.
1
The Honorable Karl K. Sakamoto presided.
2
Alghussein filed a separate lawsuit against NuVasive, Inc. and The
Queen's Medical Center in 2011. Much of the evidence presented on Dr. Kaan's
motions for summary judgment came from discovery conducted in that lawsuit.
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. . . .
I agree that my doctor has informed me of the:
. . . .
(d) alternative forms of treatment available, including
non-treatment, with associated drawbacks and
benefits[.]
(Underscored portions were handwritten onto the Consent Form.)
After the surgery Alghussein experienced new weakness
in her left quadriceps muscle. Dr. Kaan believed the muscle
weakness was most likely caused by an injury to the L-3 nerve
root or femoral nerve during surgery, possibly when a retractor3
pulled against the nerve.
PROCEDURAL HISTORY
Alghussein filed a lawsuit against Dr. Kaan on July 25,
2014. Her complaint alleged that she had "permanent lower
extremity weakness and she has been relegated to use of a wheel-
chair after the surgery" performed by Dr. Kaan. She claimed that
she "did not give an informed consent to the XLIF surgery, and if
she had been given the information would not have consented to
the XLIF surgery performed by [Dr. Kaan]."
Trial was set for the week of November 7, 2016. The
trial setting order set deadlines for the parties to identify
expert witnesses and exchange expert witness reports. After
those deadlines passed, Dr. Kaan filed two motions for summary
judgment. Each was supported by, among other things, a
declaration by Dr. Kaan and exhibits, including excerpts from
depositions taken in Alghussein's lawsuit against NuVasive, Inc.
and The Queen's Medical Center.
The first motion for summary judgment argued that
Alghussein could not sustain her burden of proving that Dr. Kaan
3
A "retractor" is a "surgical instrument[] [used] for holding
tissues away from the field of operation." Retractor, Merriam-Webster,
https://www.merriam-webster.com/dictionary/retractor (last visited Mar. 22,
2021).
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failed to inform her of the material risks of the surgery, as
required under HRS § 671-3(b)(5),4 because Alghussein's expert
witness did not offer any opinions on the issue.5 Alghussein
opposed Dr. Kaan's motion by submitting her own declarations and
other evidence, including her interrogatory answers and excerpts
from a number of depositions. The record does not contain a
transcript of the hearing. On October 27, 2016, the circuit
court entered an order granting in part and denying in part
Dr. Kaan's first motion for summary judgment. The motion was
granted as to Alghussein's claim under HRS § 671-3(b)(5), and "to
the extent that [Alghussein] alleges that [Dr. Kaan] had a duty
to disclose an alleged lack of experience with the subject
medical device(s)[.]"
Dr. Kaan's second motion for summary judgment addressed
Alghussein's claims under HRS § 671-3(b)(2), (4), and (6).
Alghussein opposed Dr. Kaan's second motion by submitting her own
declaration. The circuit court granted Dr. Kaan's second motion
for summary judgment in total by order entered on October 27,
2016. The Judgment was entered on January 6, 2017. This appeal
followed.
STANDARD OF REVIEW
"Appellate courts review an award of summary judgment
de novo under the same standard applied by the circuit court."
Garcia v. Robinson, 137 Hawai#i 388, 393, 375 P.3d 167, 172
(2016) (citation omitted). "Summary judgment is appropriate if
the pleadings, depositions, answers to interrogatories, and
4
The relevant portions of the statute are set forth below.
5
The expert report proffered by Alghussein had been prepared by the
physician who was retained by Alghussein's employer to perform an independent
medical examination (IME) in connection with Alghussein's workers compensation
claim. Although the IME doctor reviewed and summarized Dr. Kaan's medical
records, the report expressed no opinions on whether or not Dr. Kaan failed to
disclose a material risk of XLIF surgery or otherwise complied or failed to
comply with HRS § 671-3(b).
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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. (citations omitted). "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. (citations omitted). "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." Id. at 393-94, 375 P.3d at 172-
73 (citation omitted). The evidence and inferences to be drawn
therefrom must be viewed in the light most favorable to the non-
moving party. Id. at 394, 375 P.3d at 173.
DISCUSSION
The issue presented by this appeal is whether the
evidence presented on Dr. Kaan's motions for summary judgment,
viewed in the light most favorable to Alghussein, created a
genuine issue of material fact which should have precluded
summary judgment.
Medical Informed Consent
The liability issues in this case involve the Hawai#i
medical informed consent statute, HRS § 671-3. The statute
prescribes the standard for a physician's duty to disclose
information to a patient, supplanting the common-law formulation
of the doctrine of informed consent. Garcia, 137 Hawai#i at 396
n.7, 375 P.3d at 175 n.7 (citing Ngo v. Queen's Med. Ctr., 136
Hawai#i 54, 63-68, 358 P.3d 26, 34-40 (2015)).
[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;
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(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 treat-
ment 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.
Garcia, 137 Hawai#i at 394, 375 P.3d at 173 (reformatted) (citing
Ngo, 136 Hawai#i at 68-69, 358 P.3d at 40-41).
HRS § 671-3 provides, in relevant part:
(b) The following information shall be supplied to
the patient . . . prior to obtaining consent to a proposed
medical or surgical treatment[:]
(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.
(The subsections at issue in this appeal appear in bold.)
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Alghussein's Contentions on Appeal
Alghussein contends that the evidence presented on
Dr. Kaan's motions for summary judgment, viewed in the light most
favorable to her, showed that: (1) Dr. Kaan failed to adequately
describe the proposed treatment or procedure as required by HRS
§ 671-3(b)(2); (2) Dr. Kaan failed to advise her of alternative
treatment as required by HRS § 671-3(b)(4); (3) Dr. Kaan failed
to advise her of the benefits of alternative treatment as
required by HRS § 671-3(b)(6); and (4) a reasonable person would
not have consented to the XLIF surgery had there been disclosure
of the matters required by HRS § 671-3(b)(2), (4), and (6).
1. Description of the
Proposed Procedure
HRS § 671-3(b)(2) requires that a physician supply the
patient with "[a] description of the proposed treatment or
procedure[.]" Dr. Kaan's declaration submitted in support of his
first motion for summary judgment stated:
2. I performed the lumbar fusion surgery on
[Alghussein] on April 20, 2009 using the Extreme Interbody
Lateral [sic] Fusion ("XLIF") procedure and employing neuro-
monitoring equipment provided by NuVasive, Inc.
3. Prior to the surgery, on or about April 16,
2009, I met with [Alghussein] to discuss the planned
surgery. I explained the procedure to [Alghussein] and that
I would approach her spine from the side, fuse her in the
back, and insert a prosthesis bone graft, BMP (bone
morphogenic protein) and screws from the back under a
fusion.
4. Also on April 16, 2009, [Alghussein] signed and
initialed a form entitled "Physician's Record of Patient
Consent to Operation, Post-Operative Care, Medical Treat-
ment, Anesthesia, or Other Procedure ("Consent
Form")[.] . . .
5. The Consent Form described the planned procedure
as "L4-5 extreme lumbar interbody fusion, posterolateral
fusion, insertion pedicle screws and rods prosthesis, insert
BMP, iliac crest bone graft, allograft." . . . The procedure
was also described, in ordinary or lay language, as "fusion
of the spine, front and back, insert cage, screws, rods.
Bone protein, bone from pelvis or donor bone."
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A copy of the Consent Form, bearing Alghussein's signature, was
attached to Dr. Kaan's declaration.
Alghussein did not dispute reading or signing the
Consent Form. Her September 28, 2016 declaration stated:
4. I was told that the surgery would involve me being
turned on my side for the surgery. . . .
. . . .
9. I was not told that Dr. Kaan would need to rely upon
neuromonitoring equipment to do the XLIF surgery.
. . . If I had been told about this reliance on the
equipment rather than the surgery Dr. Kaan had done
before, I would not have agreed to the surgery.
Her October 12, 2016 declaration stated:
3. On April 16, 2009, before my surgery, I was told only
that I would be turned on my side for my surgery and
the surgery would approach my spine from the side.
. . . .
6. . . . I was not told that the XLIF would use the
NuVasive [neuromonitoring] equipment[.] . . . I was
not told that the NuVasive equipment was needed to
perform the surgery that Dr. Kaan wanted to perform.
Alghussein does not dispute that Dr. Kaan described the
proposed surgery to her in both medical and lay terms; nor does
she contend that Dr. Kaan incorrectly described the procedure.
Her first point of error is based upon Dr. Kaan not telling her
that he would be using NuVasive neuromonitoring equipment during
the procedure, and that a technician would be placing electrodes
on her legs. Thus, she raises the issue of how much specific
information a physician must provide to adequately describe "the
proposed treatment or procedure" under HRS § 671-3(b)(2).
On that issue HRS § 671-3(a) provides, in pertinent
part:
§ 671-3 Informed consent. (a) The Hawaii medical
board may establish standards for health care providers to
follow in giving information to a patient, . . . to ensure
that the patient's consent to treatment is an informed
consent. The standards shall be consistent with subsection
(b) and may include:
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(1) The substantive content of the information to be
given;
(2) The manner in which the information is to be
given by the health care provider; and
(3) The manner in which consent is to be given by
the patient[.]
There is no evidence that the Hawaii medical board "establish[ed]
standards for health care providers to follow" for the "sub-
stantive content of the information to be given" to a patient
about lumbar interbody fusion surgery. It does not appear that
the medical board has established any such standards. See Ngo,
136 Hawai#i at 64, 358 P.3d at 36 (noting that board of medical
examiners did not fulfill mandate of former version of HRS
§ 671–3 "to specifically itemize the probable risks and effects
of each specific treatment or surgical procedure" because "there
were too many medical and surgical procedures to provide such an
itemization.") (quoting Mroczkowski v. Straub Clinic & Hosp.,
Inc., 6 Haw. App. 563, 567, 732 P.2d 1255, 1258-59 (1987); see
also Leyson v. Steuermann, 5 Haw. App. 504, 514 n.7, 705 P.2d 37,
45 n.7 (1985), overruled by Bernard v. Char, 79 Hawai#i 362, 903
P.2d 667 (1995) (adopting objective standard for determining
whether patient would have undergone treatment had they been
informed of the risk of the harm that in fact occurred); Hawaii
Administrative Rules § 16-85-24 (stating the Hawai#i medical
board "has determined that it is not practicable to set standards
that include the substantive content of the information to be
given a patient to insure that a patient's consent to treatment
is an informed consent.").
On the record before us, we decline to recognize a
standard requiring a surgeon to supply a patient with information
about: the specific surgical tools or equipment to be employed in
a proposed treatment or procedure; how the tools or equipment are
to be used; or which member of the surgical team will perform
what function during the treatment or procedure, to comply with
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HRS § 671-3(b)(2).6 We hold that the information Dr. Kaan
supplied to Alghussein to describe the XLIF surgery complied with
HRS § 671-3(b)(2), and Alghussein did not raise a genuine issue
of material fact about whether Dr. Kaan complied with HRS
§ 671-3(b)(2).
2. Recognized Alternative
Treatments or Procedures
HRS § 671-3(b)(4) requires that a physician supply the
patient with information about "recognized alternative treatments
or procedures, including the option of not providing these treat-
ments or procedures[.]"
A. Genuine issues of material fact.
Dr. Kaan testified in deposition:
Q. So what other procedures do you use besides XLIF
procedures?
A. As far as doing an interbody fusion, another
approach is approaching it from the back; so you can say a
posterior lumbar interbody fusion. Or another approach is
the transforaminal lumbar interbody fusion.
Dr. Kaan signed a declaration stating:
3. Prior to the surgery, on or about April 16,
2009, I met with [Alghussein] to discuss the planned
surgery. I explained the procedure to [Alghussein] and that
I would approach her spine from the side. I told her that
the other alternative to this XLIF approach was a posterior
approach to the spine which would require more muscle
dissection and carried an increased risk of morbidity as
well as a longer recovery period. In contrast, I told her,
the XLIF lateral approach was less intrusive and required
less muscle dissection. Both approaches carried the same
risk of nerve injury.
The Consent Form signed by Alghussein acknowledged that Dr. Kaan
informed her of "alternative forms of treatment available,
including non-treatment, with associated drawbacks and
benefits[.]"
6
But see discussion below concerning HRS § 671-3(b)(4) and (6).
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Alghussein's October 12, 2016 declaration stated:
2. I have been informed about the Declaration of
Kenneth T. Kaan, M.D., (Dr. Kaan) dated October 4,
2016, specifically paragraph 3. Dr. Kaan did not tell
me about any alternative surgeries before my surgery
on April 20, 2009.
3. On April l6, 2009, before my surgery, I was told only
that I would be turned on my side for my surgery and
the surgery would approach my spine from the side.
4. I was not told about an alternative approach. I was
not told about a posterior approach. I was not told
about the difference between the two types of surgery.
Nothing was discussed about muscle dissection, or
recovery periods or increased risk of mobility [sic]
with the posterior approach or the XLIF being less
intrusive. I was not told that both approaches
carried the same risk of nerve injury.
There is conflicting evidence about whether Dr. Kaan informed
Alghussein about the posterior approach, which Dr. Kaan
acknowledged in deposition was an alternative to the XLIF
approach. The evidence in the record, when viewed in the light
most favorable to Alghussein, shows a genuine issue of material
fact about whether Dr. Kaan supplied Alghussein with information
about the posterior approach as an alternative to the XLIF
approach. The circuit court erred in granting summary judgment
on Alghussein's claim under HRS § 671-3(b)(4).
B. Sham declaration doctrine.
The circuit court's order granting Dr. Kaan's second
motion for summary judgment relied on the "sham declaration"
doctrine:
The Court, in viewing the totality of circumstances,
concludes that [Alghussein]'s declaration in support of her
Opposition to [Dr. Kaan's] Second Motion for Summary
Judgment is a sham declaration. This is because
[Alghussein]'s declaration was "(l) produced to avoid
summary judgment and (2) the inconsistencies [are] clear and
unambiguous." See Lales v. Wholesale Motors Co., 133
Hawai#i 332, 360, 328 P.3d 341, 369 (2014);
[Alghussein]'s only evidence contradicting both the
Informed Consent Document and Dr. Kaan's testimony is
[Alghussein]'s Declaration dated October 12, 2016 stating
that [Dr. Kaan] did not tell her of any alternatives to the
XLIF approach, including the posterior approach, and that
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she was not aware of any alternative approach to the XLIF
method. This testimony, however, directly contradicts
[Alghussein]'s own Memorandum in Opposition, of which her
declaration is an attachment to. [Alghussein]'s Memorandum
in Opposition to [Dr. Kaan's] Second Motion for Summary
Judgment at Page 11 states that "[Alghussein] relied, in
selecting [Dr. Kaan] as her physician," on the fact that
[Dr. Kaan] had been performing the posterior method "for a
very long time." Thus, [Alghussein] acknowledges in her own
memorandum that she was aware of the posterior approach
before even selecting Dr. Kaan as her doctor. Thus, as
[Alghussein]'s declaration is a sham declaration, it fails
to create a genuine issue of material fact. To this extent,
[Dr. Kaan's second] Motion for Summary Judgment is GRANTED.
(Bold text in original)(cleaned up)(bold underscoring added).
In Lales v. Wholesale Motors Co., 133 Hawai#i 332, 328
P.3d 341 (2014), the supreme court discussed "a federal doctrine
prohibiting 'sham affidavits.'" Id. at 360, 328 P.3d at 369.
In general, the "sham affidavit" doctrine applies when the
affidavit of a non-moving party in a motion for summary
judgment contradicts or is inconsistent with [their]
previous deposition testimony. Under this doctrine, a non-
moving party generally cannot create a genuine issue of fact
"simply by submitting an affidavit contradicting [their] own
prior testimony."
The purpose of the "sham affidavit" doctrine is to
preserve "the utility of summary judgment as a procedure for
screening out sham issues of fact." However, the sham
affidavit doctrine does not prohibit the non-moving party
from "elaborating upon, explaining, or clarifying prior
testimony elicited by opposing counsel on deposition" in
[the non-moving party's] affidavit. Furthermore, the sham
affidavit doctrine does not prohibit attempts by the non-
moving party to clarify inconsistencies that result from "an
honest discrepancy, mistake, or newly discovered evidence."
The Ninth Circuit has held that two requirements must
be met before the court can strike an affidavit and grant
summary judgment: (1) the trial court must make a factual
determination that the contradiction was indeed a "sham"
produced to avoid summary judgment and (2) the incon-
sistencies have to be clear and unambiguous to justify
striking the affidavit. If either requirement is not met,
the court must consider the non-moving party's affidavit in
its determination to grant or deny summary judgment.
Id. (citations omitted). The supreme court then noted it had not
explicitly adopted or rejected the sham affidavit doctrine, and
did not need to resolve the issue in that case: "Even assuming
arguendo that the sham affidavit doctrine is available, it would
not be applicable in the instant case because Lales's declaration
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was not clearly and unambiguously inconsistent with his prior
deposition and admissions." Id.
Respectfully, we believe the circuit court misapplied
the sham declaration doctrine. Alghussein submitted her own
declaration in opposition to Dr. Kaan's first motion for summary
judgment, stating:
5. . . . Dr. Kaan did not tell me that he could do the
surgery from the rear (posterior)[.]
Alghussein's answers to Dr. Kaan's interrogatories, served before
either motion for summary judgment was filed, stated:
12. Identify and set forth each and every claim being
asserted against [Dr. Kaan] (e.g., assault,
misrepresentation, etc.)
Answer: Medical Malpractice; failure to properly
disclose material information known by
Dr. Kaan about surgery[.]
He did not disclose:
. . . .
4. He did not tell me I had different choices about
what surgery I could have and did not need to do the XLIF.
Alghussein's second declaration did not contradict her
first declaration or her interrogatory answers about whether
Dr. Kaan discussed the alternative posterior approach with her.
Nor did her deposition:
Q. Okay. When you saw Dr. Kaan did he explain that
there were a number of alternatives, including surgery, that
could be pursued, or did he only advocate surgery?
A. Well, I think at that point he only advocated
surgery. He was aware of my time spent with Dr. Katsura [a
physiatrist].
Q. So really the only options, treatment options that
you discussed with Dr. Kaan at that time were surgery?
A. Yeah. . . .
. . . .
Q. Can you tell me in as much detail as you can
remember what Dr. Kaan said to you before the surgery and
what it would involve?
A. I knew it involved turning me.
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Q. Sorry, turning you?
A. Yes, um-hum.
Q. What do you mean by that?
A. That I think they took a piece from your hip and
then I think you were on your side and then they laid you on
your stomach. I recall that being explained. And then they
did two incisions in your back.
Q. (Attorney nods head.)
A. And put in these two spacers on each side.
Q. On each side of what?
A. Your spine.
Q. Anything else you can remember about how the
surgery was described to you by Dr. Kaan?
A. Pretty much like that. And those spacers would
alleviate the pain.
The deposition excerpts presented to the circuit court did not
show that Alghussein was specifically asked whether Dr. Kaan
explained to her the posterior approach or any other alternative
to the XLIF procedure. Alghussein's October 12, 2016 declaration
was not "clearly and unambiguously inconsistent with" her
previous declaration, her interrogatory answers, or her
deposition testimony. Lales, 133 Hawai#i at 360, 328 P.3d at
369. Even if the sham declaration doctrine were to be recognized
under Hawai#i law, the circuit court erroneously applied it to
grant summary judgment for Dr. Kaan.
3. Recognized Benefits of Recognized
Alternative Treatments or Procedures
HRS § 671-3(b)(6) requires that a physician supply the
patient with information about "[t]he recognized benefits of the
recognized alternative treatments or procedures."
A. Genuine issues of material fact.
NuVasive's representative testified in deposition:
Q. Okay. Did you speak to Dr. Kaan and did he tell
you that he was not comfortable with the [XLIF] procedure at
this point?
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A. He said he wasn't comfortable with the procedure.
Q. Okay. So that was [sic] would have been sometime
July — July, August or September of 2008, right?
A. 2008.
. . . .
Q. Okay. Did Dr. Kaan indicate to you why he was not
comfortable with the procedure?
A. Just because he's been using the stuff he's been
using for years and years and years, and it's a new
procedure to him.
Q. You mean the prost -- posterior approach?
A. Uh-huh.
Q. That's what he did before?
A. Yes.
. . . .
Q. Okay. And so when you said he attempted an XLIF
in September, what did you mean by that?
A. I think he -- I don't recall what I meant by that.
I mean, I remember of [sic] specifically of one of his first
cases that we went and we tried to position the patient, and
he didn't feel comfortable accessing the spine, so we
aborted and he went to a traditional posterior.
Before Dr. Kaan performed Alghussein's surgery, he had admittedly
performed only four XLIF surgeries. NuVasive's representative
testified:
Q. [Referring to a document] And: "Dr. Kaan is
committed to do 5 XLIF cases." Is that right.
A. Yes.
Q. Okay. So do you remember talking to Dr. Kaan and
he said he was committed to do 5 XLIF cases?
A. I heard him saying that he wanted to give it a
shot and learn it, and he would do 5 and give it an
evaluation after that.
Alghussein's surgery was Dr. Kaan's fifth XLIF case.
Alghussein's October 12, 2016 declaration stated:
2. I have been informed about the Declaration of
Kenneth T. Kaan, M.D., (Dr. Kaan) dated October
4, 2016, specifically paragraph 3. Dr. Kaan did
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not tell me about any alternative surgeries
before my surgery on April 20, 2009.
3. On April l6, 2009, before my surgery, I was told
only that I would be turned on my side for my
surgery and the surgery would approach my spine
from the side.
4. I was not told about an alternative approach. I
was not told about a posterior approach. I was
not told about the difference between the two
types of surgery. Nothing was discussed about
muscle dissection, or recovery periods or
increased risk of mobility [sic] with the
posterior approach or the XLIF being less
intrusive. I was not told that both approaches
carried the same risk of nerve injury.
5. If I had been told about alternative surgery
procedures, I would have asked questions.
. . . .
7. I would have asked how much experience Dr. Kaan
had with each of the alternative
approaches. . . .
. . . .
9. I would have asked Dr. Kaan about his experience
with the posterior approach which I understand
he had done for many years before he decided to
try the new XLIF surgery.
. . . .
12. . . . If I knew there were alternate procedures,
I definitely would have asked him about his
experience with XLIF.
Viewing this evidence in the light most favorable to Alghussein,
the trier of fact could conclude that Dr. Kaan did not discuss
the recognized benefits of the alternative posterior approach
with Alghussein because he had committed to NuVasive that he
would perform five XLIF procedures, and Alghussein's surgery
would have been the fifth if Alghussein consented to it.
B. Argument is not evidence.
Dr. Kaan argues Alghussein "readily admitted that she
knew about the posterior approach and specifically selected
Dr. Kaan for that reason and purpose[.]" Dr. Kaan cites to
Alghussein's memorandum in opposition to Dr. Kaan's second motion
for summary judgment, which argued:
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Dr. Kaan did not disclose the obvious benefit of the
posterior approach procedure, which was that he had been
performing this procedure for a very long time. This was
the procedure upon which Dr. Kaan had earned his reputation
and upon which [Alghussein] relied in selecting him as her
physician. The benefit of this procedure is that he had
much more experience doing it. The evidence shows that
Dr. Kaan wanted to use the XLIF procedure in his effort to
learn this new surgical procedure.
(Underscoring added.) "[A]rgument of counsel in a memorandum of
law is not evidence" for purposes of a motion for summary
judgment. Leis Family Ltd. P'ship v. Silversword Eng'g, 126
Hawai#i 532, 534 n.2, 273 P.3d 1218, 1220 n.2 (App. 2012)
(cleaned up). Although Alghussein admittedly thought that
Dr. Kaan had a good reputation as an orthopedic surgeon, there is
no evidence in the record that Alghussein was aware of the
alternative surgical approaches, or that Dr. Kaan's good
reputation was based upon him performing a specific surgical
approach, before she agreed to undergo XLIF surgery.
C. Legal causation.
Dr. Kaan argues that Alghussein's claims for lack of
informed consent "are based upon collateral issues which have no
causal relationship to the injury which she is now complaining of
[sic]." We disagree. Dr. Kaan correctly contends that a
plaintiff claiming negligent failure to obtain informed consent
must prove that the physician's breach of duty to disclose under
HRS § 671–3(b) 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[.]" Garcia, 137 Hawai#i
at 394, 375 P.3d at 173 (citing Ngo, 136 Hawai#i at 68-69, 358
P.3d at 40-41). However, the Hawai#i Supreme Court has noted
that "Hawai#i courts have not required plaintiffs claiming the
failure to disclose an alternative treatment to prove that they
were injured by a risk that was not disclosed to them." Ray v.
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Kapiolani Med. Specialists, 125 Hawai#i 253, 266, 259 P.3d 569,
582 (2011).
Dr. Kaan argues that Alghussein proffered no expert
opinion testimony to support her claims that the weakness in her
left quadriceps muscle was caused by Dr. Kaan's improper
performance of the XLIF surgery. But Alghussein's claim is not
based upon surgical negligence; it is for failure to obtain
informed consent. "[E]xpert testimony is not required to
determine what a reasonable patient needs to hear in order to
make an informed decision regarding proposed medical treatment."
Ngo, 136 Hawai#i at 66 n.14, 358 P.3d at 38 n.14.
Hawai#i courts have adopted the patient-oriented standard
for determining whether particular information must be
disclosed to a patient. This court has held that the
"dispositive inquiry regarding the physician's duty to
disclose in an informed consent case, therefore, is not what
the physician believes [their] patient needs to hear in
order for the patient to make an informed and intelligent
decision; the focus should be on what a reasonable person
objectively needs to hear from [their] physician to allow
the patient to make an informed and intelligent decision
regarding proposed medical treatment."
Ray, 125 Hawai#i at 267, 259 P.3d at 583 (emphasis added)
(quoting Carr v. Strode, 79 Hawai#i 475, 485–86, 904 P.2d 489,
499–500 (1995)).
Viewing the evidence in the light most favorable to
Alghussein, the trier of fact could find that a reasonable person
may "objectively need[] to hear" that their physician had only
performed four XLIF surgeries like the one proposed, and that the
physician was more experienced in, and had a track record of
success while, using other approaches to interbody fusion
surgery, "to make an informed and intelligent decision regarding
proposed medical treatment." Ray, 125 Hawai#i at 267, 259 P.3d
at 583 (citation omitted). In other words, a reasonable trier of
fact could conclude that Alghussein objectively needed to hear
from Dr. Kaan that the proposed XLIF procedure was a relatively
new surgical approach (for him), and that he ordinarily used the
posterior approach, to allow her to make an informed and
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intelligent decision whether she wanted Dr. Kaan to use the XLIF
approach under the circumstances.
D. Duty to disclose.
Dr. Kaan cites Ditto v. McCurdy, 86 Hawai#i 84, 947
P.2d 952 (1997) and Ray for the proposition that a physician has
no duty to disclose to their patient their experience (or lack
thereof) in performing the procedure at issue. Both cases are
distinguishable.
The defendant in Ditto was an ear, nose, and throat
specialist and cosmetic surgeon who performed breast augmentation
surgery on the plaintiff. The doctor did not disclose to the
plaintiff that he was not a plastic surgeon and did not have
hospital privileges. The supreme court held, as a matter of law,
that "a physician does not have an affirmative duty to disclose
[their] qualifications to a patient prior to providing treat-
ment." Ditto, 86 Hawai#i at 90, 947 P.2d at 958. Unlike this
case, Ditto did not involve the failure of the defendant to
disclose that he had significantly more experience using one
approach to breast augmentation surgery than another, so that the
patient could make an informed decision about which approach she
wanted the surgeon to take for her breast augmentation surgery.
In Ray, the patient (a minor visiting Hawai#i with her
parents) had severe lupus with brain involvement.7 A Hawai#i
physician proposed "steroid pulse therapy." The physician
informed the patient's parents (the Rays) that persons treated
with steroids had a risk of developing steroid myopathy (a form
of muscle weakness), and that the risk of side effects from
steroids generally increases with the dosage level. The
physician did not advise the Rays about alternative dosing
regimens.
7
"Lupus is a disease that involves the inflammation of any part of
the human body. Lupus patients with brain involvement have a higher risk of
dying." Ray, 125 Hawai#i at 257, 259 P.3d at 573.
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During the treatment period in Hawai#i the patient
began experiencing muscle weakness. The steroid pulse therapy
was discontinued and the patient returned home. The muscle
weakness progressed. The patient was hospitalized for six months
because she could not breathe on her own, was profoundly weak,
and was severely limited in her ability to move. Four of her
attending doctors opined that her weakness was caused by the
steroids she had received in Hawai#i.
The Rays filed a lawsuit, claiming (among other things)
that the Hawai#i physician (an employee of the defendant medical
group) failed to obtain their informed consent for treatment of
their daughter. Their expert witness testified that although
there were different ways of treating a lupus patient with
steroids, he had never seen the pulse therapy treatment used by
the Hawai#i physician.8 Over objection, the expert testified
that "a very important part of informed consent is for the doctor
to tell the patient or the parents what [the doctor's] experience
has been with that form of treatment." Ray, 125 Hawai#i at 259,
259 P.3d at 575. The Rays testified that they would not have
consented to their daughter's treatment had they known of the
Hawai#i physician's and the medical community's lack of
experience with the treatment program. The jury returned a
verdict for the Rays and both sides appealed.
On the issue of informed consent, the supreme court
held that the circuit court erred by allowing the Rays' expert to
testify that the Hawai#i physician owed a duty to disclose her
and the medical community's experience with the steroid pulse
therapy treatment program. Ray, 125 Hawai#i at 268-69, 259 P.3d
at 584-85. The supreme court based its decision on the language
8
The Hawai#i treating physician testified that she had applied the
steroid treatment program to hundreds of patients, and that she had only seen
a small number of patients develop life-threatening side effects. She
testified that, in the hundreds of patients she had treated using that method,
she never encountered any muscle weakness that she thought was induced by the
treatment. Another doctor testified about a study which used the steroid more
aggressively than the Hawai#i doctor's method, and the 213 patients in that
study did not suffer acute steroid myopathy.
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of the informed consent statute in effect at the time the Rays'
daughter was treated. The statute required a physician to inform
the patient of the "nature and character of the proposed
treatment[.]" HRS § 671-3(b)(2) (1993). Referring to the plain
meaning of the terms "nature" and "character," the supreme court
held that a physician's "experience with pulse therapy is not a
distinguishing feature or attribute of steroid pulse therapy."
Ray, 125 Hawai#i at 269, 259 P.3d at 585. Thus, when the supreme
court held that the Rays' expert's "testimony that a physician
should disclose her experience with a treatment to properly
obtain informed consent was contrary to Hawai#i law[,]" id., the
law referred to was HRS § 671-3(b)(2) (1993), id. at 268-69, 259
P.3d at 584-85.
In 2003, HRS § 671-3(b)(2) was amended, effective
January 1, 2004, by deleting the requirement that a physician
disclose the "nature and character" of the proposed treatment,
and replacing it with a requirement to provide a "description of
the proposed treatment or procedure[.]" 2003 Haw. Sess. Laws.
Act 114, § 2 at 221-22. Subsection (b)(2) has not been amended
since. As discussed in section 1. above, as a matter of law
Dr. Kaan complied with HRS § 671-3(b)(2). But Alghussein's claim
that Dr. Kaan should have informed her he had significantly more
experience performing posterior interbody fusion surgery,
compared to his relatively new exposure to the XLIF approach, is
not based on HRS § 671-3(b)(2); it is based on HRS § 671-3(b)(6),
which requires that the patient be supplied with information
about "[t]he recognized benefits of the recognized alternative
treatments or procedures."
The evidence in this case, viewed in the light most
favorable to Alghussein, could show that there were at least two
alternative approaches to interbody fusion surgery: posterior and
XLIF, or "extreme lateral." Dr. Kaan had much experience
performing the former, but had only completed four of the latter
when he saw Alghussein. Under the patient-oriented standard
applied in Hawai#i, the issue of whether Dr. Kaan breached his
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duty under HRS § 671-3(b)(6) is for the trier of fact, which must
decide whether a reasonable person in Alghussein's position would
"objectively need[] to hear" that Dr. Kaan had only performed
four XLIF surgeries like the one proposed, and that he was
significantly more experienced in the posterior approach, "to
make an informed and intelligent decision regarding proposed
medical treatment." Ray, 125 Hawai#i at 267, 259 P.3d at 583
(citation omitted). The circuit court erred by granting summary
judgment on Alghussein's claim under HRS § 671-3(b)(6).
CONCLUSION
For the foregoing reasons: the October 27, 2016 order
granting in part and denying in part Dr. Kaan's first motion for
summary judgment is affirmed as to Alghussein's claim under
HRS § 671-3(b)(5), but vacated to the extent it ruled that
Dr. Kaan did not have a duty to disclose his alleged lack of
experience with the XLIF procedure; the October 27, 2016 order
granting Dr. Kaan's second motion for summary judgment is
affirmed as to Alghussein's claim under HRS § 671-3(b)(2), but
vacated as to Alghussein's claims for alleged breach of HRS
§ 671-3(b)(4) and (6); and this case is remanded for further
proceedings consistent with this opinion.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Charles H. Brower,
for Plaintiff-Appellant /s/ Clyde J. Wadsworth
Marilyn Alghussein. Associate Judge
John S. Nishimoto, /s/ Karen T. Nakasone
Ronald T. Michioka, Associate Judge
Ryan I. Inouye,
for Defendants-Appellees
Kenneth T. Kaan, M.D. and
Kenneth T. Kaan, M.D., Inc.
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