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                                                              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

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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.



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(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.


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