No. SCWC-13-0000388, Thursday, December 10, 2015, 10 a.m.

EDWIN GARCIA, Petitioner/Plaintiff-Appellant, vs. BERNARD ROBINSON, M.D., Respondent/Defendant-Appellee.

The above-captioned case has been set for argument on the merits at:

WAIANAE HIGH SCHOOL
85-251 Farrington Highway
Waianae, HI 96792

Attorneys for Petitioner:

Michael P. Healy and Charles H. Brower

Attorneys for Respondent:

Thomas E. Cook and Edquon Lee

NOTE: Order accepting Application for Writ of Certiorari, filed 09/23/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

 [ Listen to the entire audio recording in mp3 format ]

Brief Description:

This case involves what a patient must establish in proving a prima facie violation of a treating physician’s statutory duty of disclosure, as part of a lack of informed consent claim, under Hawai`i Revised Statutes § 671-3(b)(5)(A), and the extent of expert testimony that is required under this statutory provision.

Edwin Garcia, a security guard, suffered a lower back injury at work. He sought medical treatment from his primary care provider, who referred him to Dr. Bernard Robinson for a neurosurgical consultation. Garcia contends that Dr. Robinson made certain representations to him during his initial consultation regarding the success rate of lower back surgery, pain expectations, and recovery time from the surgery. Dr. Robinson disputes that these statements were made. Dr. Robinson indicated that he disclosed all the risks before performing surgery, including the risk that the surgery might not be beneficial to Garcia, and that Garcia signed an informed consent form.

Dr. Robinson performed lower back surgery on Garcia. Garcia’s condition did not improve after the surgery. After the surgery, Garcia reported increased low back pain, uncontrolled shaking of his left leg, and numbness in his left leg and foot. Garcia later consulted with two other doctors who he states told him that the surgery was not done properly and that the success rate of surgery was fifty-percent or less.

Garcia filed a Complaint against Dr. Robinson in circuit court, which included a lack of informed consent claim. Dr. Robinson filed a Motion for Summary Judgment, arguing that Garcia lacked expert testimony to support this claim. The circuit court held a hearing on the motion and ruled in favor of Dr. Robinson, reasoning that granting the Motion for Summary Judgment was appropriate because Garcia did not meet all four common law elements required to establish the “materiality” of the risk associated with treatment in an informed consent claim. The circuit court entered judgment in favor of Dr. Robinson, and Garcia appealed.

In its published opinion, the Intermediate Court of Appeals (ICA) held that in an informed consent case, expert testimony is necessary to establish the materiality of alleged risks associated with treatment. The ICA found that Garcia had not provided expert testimony to support two of the required four “materiality” elements. Accordingly, the ICA ruled that the circuit court did not err in concluding that Dr. Robinson was entitled to judgment as a matter of law.

Garcia filed an Application for Writ of Certiorari in which he argues that the four “materiality” elements set forth by the circuit court and the ICA are not factors that must be applied to every informed consent claim. Garcia also contends that the ICA did not follow clearly established law that expert testimony is not always required to establish a claim of lack of informed consent. He asserts that applying the four “materiality” elements will ultimately result in the need for expert testimony in every case.

Dr. Robinson maintains that because Garcia lacked expert testimony as to two of the four required “materiality” elements, Garcia did not have sufficient evidence to establish the materiality of the risk asserted, and therefore the ICA did not err in granting summary judgment. Dr. Robinson also contends that this court’s recent opinion, Ngo v. Queen’s Medical Center, No. SCWC-30172, issued on August 31, 2015, supports the decisions of the circuit court and the ICA.