§671-3 Informed consent. (a) The Hawaii medical board may establish standards for health care providers to follow in giving information to a patient, or to a patient's guardian or legal surrogate if the patient lacks the capacity to give an informed consent, to ensure that the patient's consent to treatment is an informed consent. The standards shall be consistent with subsection (b) and may include:

(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 or the patient's guardian or legal surrogate.

(b) The following information shall be supplied to the patient or the patient's guardian or legal surrogate prior to obtaining consent to a proposed medical or surgical treatment or a diagnostic or therapeutic procedure:

(1) The condition to be treated;

(2) A description of the proposed treatment or procedure;

(3) The intended and anticipated results of the proposed treatment or procedure;

(4) The recognized alternative treatments or procedures, including the option of not providing these treatments or procedures;

(5) The recognized material risks of serious complications or mortality associated with:

(A) The proposed treatment or procedure;

(B) The recognized alternative treatments or procedures; and

(6) The recognized benefits of the recognized alternative treatments or procedures.

(c) On or before January 1, 1984, the Hawaii medical board shall establish standards for health care providers to follow in giving information to a patient or a patient's guardian, to ensure that the patient's consent to the performance of a mastectomy is an informed consent. The standards shall include the substantive content of the information to be given, the manner in which the information is to be given by the health care provider and the manner in which consent is to be given by the patient or the patient's guardian. The substantive content of the information to be given shall include information on the recognized alternative forms of treatment.

(d) Nothing in this section shall require informed consent from a patient or a patient's guardian or legal surrogate when emergency treatment or an emergency procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health.

(e) For purposes of this section, "legal surrogate" means an agent designated in a power of attorney for health care or surrogate designated or selected in accordance with chapter 327E. [L 1976, c 219, pt of §2; am L 1982, c 95, §1; am L 1983, c 223, §2 superseded by c 284, §1; am L 2003, c 114, §2; am L 2008, c 9, §3]

Cross References

Mental illness, informed consent for nonemergency treatment, see §334E-1.

Law Journals and Reviews

Consent for Testing and Treatment of Minors in Hawaii. 13 HBJ, no. 13, at 165 (2009).

Keomaka v. Zakaib: The Physician's Affirmative Duty to Protect Patient Autonomy Through the Process of Informed Consent. 14 UH L. Rev. 801 (1992).

Holding Hawai`i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents. 27 UH L. Rev. 233 (2004).

Case Notes

Patient-oriented standard applies to physician's duty to disclose risk information prior to treatment. 79 H. 475, 904 P.2d 489 (1995).

Under circumstances of case, physician did not have affirmative duty to inform patient that physician was not plastic surgeon and did not have hospital privileges. 86 H. 84, 947 P.2d 952 (1997).

Where defendant doctor never properly established at trial the "therapeutic privilege exception" to the requirement that informed consent be obtained before starting patient on antipsychotic medication, trial court erred in refusing to instruct jury concerning the tort of negligent failure to provide informed consent. 98 H. 470, 50 P.3d 946 (2002).

Circuit court did not err in denying defendant's motion for judgment as a matter of law on plaintiff's informed consent claim as this section requires the physician to inform patients of recognized alternative treatments, and defendant did not show that Hawaii courts have directly held that plaintiffs claiming the failure to disclose an alternative treatment are required to show that they suffered an injury that the physician failed to disclose. 125 H. 253, 259 P.3d 569 (2011).

The circuit court erroneously allowed plaintiffs' standard of care expert to testify that physician owed a duty to disclose physician's and the medical community's experience with the treatment, and that physician failed to meet that obligation, where expert's testimony was contrary to the plain language of this section and Hawaii law. 125 H. 253, 259 P.3d 569 (2011).

Under the patient-oriented standard adopted by Hawaii courts for determining whether particular information must be disclosed to a patient, an alternative dosage can constitute a "recognized alternative treatment" within the meaning of subsection (b)(4); where plaintiffs adduced evidence that recognized alternative dosing regimens had a lower risk of steroid myopathy, plaintiffs adduced evidence that a reasonable person would need to hear about the different recognized pulsing methods to make an informed decision. 125 H. 253, 259 P.3d 569 (2011).

Plaintiffs did not waive their claim that physician failed to inform them of all information mandated under this section, where: (1) although plaintiffs' complaint omitted the specific statutory provisions, plaintiffs' allegation that physician treated minor "without obtaining the informed consent of Plaintiff[ ]" clearly implicated a physician's duty of disclosure, which included the duties enumerated in this section; and (2) at trial, plaintiffs adduced evidence of recognized alternative treatments and raised the issue of physician's failure to inform plaintiffs of those alternatives. 136 H. 54, 358 P.3d 26 (2015).

Plaintiffs' presentation of expert medical testimony, in conjunction with manufacturer's insert for medication alleged to have caused minor patient's death from cardiac arrest resulting from hypovolemic shock, established prima facie that administering physician failed to supply plaintiffs with "recognized material risks of serious complications or mortality associated with" the medication, as required by this section. 136 H. 54, 358 P.3d 26 (2015).

Genuine issue of material fact existed as to whether physician accurately disclosed to patient the "recognized material risks of serious complications" associated with the performance of back surgery, and thus physician was not entitled to summary judgment on patient's claim of negligent failure to obtain informed consent under this section. 137 H. 388, 375 P.3d 167 (2016).

In considering a claim against a physician for negligent failure to obtain informed consent to a proposed medical or surgical treatment or a diagnostic or therapeutic procedure, while it is not erroneous for a court to apply a common law factor establishing the materiality of the risks associated with the treatment or procedure when that factor is identical to the statutory requirements of this section, this section governs the analysis, and it is error to require evidence upon a materiality factor that does not coincide with a requirement of this section. 137 H. 388, 375 P.3d 167 (2016).

Informed consent doctrine discussed. 8 H. App. 518, 811 P.2d 478 (1991).

A consent form is no substitute for a physician's affirmative duty to inform his or her patient. 86 H. 93 (App.), 947 P.2d 961 (1997).