CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000388; CIV. NO. 10-1-2338)
Michael P. Healy and Charles H. Brower for petitioner
Thomas E. Cook and Edquon Lee for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.
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 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.
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 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 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.
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 "[r]isks include allergy, hemorrhage, infection, technical problems, paralysis, and death."
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 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 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 ...