Garcia v. Robinson. ( 2016 )


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  •     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
    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
    21
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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. 23 ***FOR
    PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
    (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.
    28
    

Document Info

Docket Number: SCWC-13-0000388

Judges: Recktenwald, Nakayama, McKenna, Pollack, Wilson

Filed Date: 5/3/2016

Precedential Status: Precedential

Modified Date: 11/8/2024