§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



(C)  Not undergoing any treatment or procedure;
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



 



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



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



 



Case Notes



 



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



  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.



  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.



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



  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.



 



Prior law.



  Malpractice plaintiff required to prove harm complained of
was probable risk of surgery and that hospital knew or should have known of
risk.  6 H. App. 563, 732 P.2d 1255.