Informed Consent

If you’ve ever undergone a surgical procedure, then you’re likely well aware that you have to sign a lot of paperwork before doing so. One of those documents is probably a consent form.

However, depending on the procedure you’re undergoing, doctors may have an obligation to go through the informed consent process with you as well. While Hawai‘i law requires doctors to consent patients, there are situations where this doesn’t occur and adverse outcomes result.

We’ll shed light on your legal options in situations like these. Please call or email our firm to arrange for a free case review if the information you read below resonates with what you’ve been through so we can further discuss your legal rights.

What Consenting a Patient Entails

Physicians have a few key details they must discuss with you before performing almost any medical procedure on you. Hawai‘i Revised Statutes, and particularly HRS§ 671-3(b), describes those requirements as follows:

• The purpose the recommended treatment serves
• Alternatives to the treatment option
• A review of the patient’s expected outcome after being treated
• Side effects associated with the recommended approach to treatment
• A discussion of the benefits and risks associated with not receiving the treatment

Medical providers have additional obligations with consenting patients. They must not only cover the different components above but also confirm you understand what you’ve been told and answer any questions about what they’ve gone over.

How Consent-to-Treat and Informed Consent Compare

It’s not uncommon for individuals who have suffered harm to confuse a consent-to-treat document, which is the one that patients sign as part of their intake paperwork, with an informed consent procedure.

However, now that you’re aware of the steps medical practitioners must take as part of the latter, it should be clear that they’re not the same.

The consent to treat documentation that you sign before seeing a doctor for the first time simply gives them your authorization to assess you, perhaps draw your blood to check your blood sugar, undergo standard X-rays, and perform other non-invasive or non-life-threatening treatments.

When more complex treatments are needed, doctors must go through the informed consent steps.

When Do Doctors Need to Go Through the Informed Consent Process With Patients?

While healthcare professionals must get informed consent from patients before performing surgeries, these are other instances in which they must do so as well, including in advance of:

• Performing certain blood tests
• Administering anesthesia
• Giving a patient chemotherapy or radiation
• Performing biopsies
• Administering a blood transfusion
• Vaccinating a patient

It’s important to note that procuring a patient’s consent isn’t necessary in some situations, such as:

• If a patient is unconscious and their appointed health care proxy is not on hand, nor is there a health care directive on file
• In emergency or life-threatening situations

It also should be pointed out that revoking consent is possible as well, so long as it occurs before a procedure concludes.

Who Can Consent to Undergoing Medical Procedures?

While a patient may be 18 or older, they still may not be the right person for doctors to tell about the procedure they’re preparing to undergo, including the potential adverse outcomes and other details.

Instead, someone else may have the actual legal authority to have those conversations and sign any necessary documents. This may be the case if:

• An adult child or elderly adult, for example, has been deemed incapacitated by the Court and is now subject to guardianship
• An adult who is mentally incapacitated or unconscious may have a health care proxy in place, giving some other person the right to render health care decisions

Minors (anyone under the age of 18) would generally need to have a parent consent to their medical treatment. However, instances in which the patient has previously been emancipated may allow them to do so themselves.

Proving Liability in Medical Care Consent Cases

The Supreme Court of the State of Hawai‘i filed an opinion in 2016 regarding informed consent. It said that plaintiffs must establish the following elements to prove physician negligence in these cases:

• That the doctor had a duty of disclosure to their patient per HRS § 671-3(b)
• The physician violated that duty to disclose
• A patient suffered injuries that are attributable to that breach of duty
• That doctor’s violation of that obligation to disclose caused the patient to suffer harm
• There is no other plausible cause that resulted in the patient’s impairment

Legal Options if the Informed Consent Process Does Not Occur

Doctors who fail to get informed consent from patients may essentially perform a procedure on a patient that they didn’t authorize.

Doing so may lead to irreversible injuries and damage to patient health, which the medical professional can be held civilly liable for.

In cases like these, you, as the victim, may request compensation for the following:

• Economic damages: Including all current and future medical expenses, such as physical therapy, rehabilitative treatments, pain management, and counseling costs, as well as lost wages, home renovation, in-home care, medical device costs, and travel to and from doctors’ appointments.
• Non-economic damages: This category comprises pain and suffering, disfigurement, loss of personal freedoms, family, and spousal relationships, trauma, and loss of enjoyment of life (among others).

It’s important to note that, in medical malpractice cases like these, while our state’s laws don’t impose a cap on the amount of compensation a plaintiff can recover for their actual economic damages, there is a $375,000 limit on non-economic damages.

While personal injury cases like this are civil law matters, it is possible for doctors to face criminal charges for their unlawful actions, too.

County prosecuting attorneys and deputy attorneys general can bring charges against (prosecute) individuals in Hawai‘i who commit crimes. As far as this is concerned, it’s important to emphasize that whether a medical professional is facing criminal charges has no bearing on whether you can file a civil suit against them.

Where to Get Help If You Were Not Properly Informed

From an outsider’s perspective, many would assume if a doctor recommends a specific procedure, treatment regimen, or surgery, it must be the best for them and their situation.

They would never second-guess their doctor’s recommendation. However, that doesn’t meet a doctor’s lawful obligation to their patient.

Our state’s laws aim to ensure that doctors provide patients with ample information about their diagnosis and ways it can be treated, allowing them to play a more active role in making decisions about their health and longevity. If your doctor failed to walk you through the informed consent process or didn’t cover the different steps outlined above, and you suffered harm as a result, you have rights.

Contact us at Wayne Parsons Law Office to discuss your personal experience and your prognosis during a free initial consultation. In exchange, we’ll share with you any rights you may have to take legal action and secure compensation for your incident-related damages.