REPORT TITLE:
Informed Consent


DESCRIPTION:
Clarifies the type of information required to be given by a
provider to a patient prior to obtaining consent for medical
treatment.  Establishes elements necessary to prove a breach of
duty to obtain informed consent.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           713
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
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                   A  BILL  FOR  AN  ACT

RELATING TO INFORMED CONSENT.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 432E-4, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (b) to read as follows:
 
 3      "(b)  In order to inform enrollees fully, the provider
 
 4 shall:
 
 5      (1)  Discuss [all] treatment options with an enrollee [and
 
 6           include] as provided in section 671-3, including the
 
 7           option of no treatment at all;
 
 8      (2)  Ensure that persons with disabilities have an effective
 
 9           means of communication with the provider and other
 
10           members of the managed care plan; and
 
11      (3)  Discuss [all] the risks, benefits, and consequences
 
12           [to] of treatment and nontreatment[.] as provided in
 
13           section 671-3."
 
14      SECTION 2.  Section 671-3, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "671-3 Informed consent[; board of medical examiners
 
17 standards].(a)  [The board of medical examiners, insofar as
 
18 practicable, shall establish standards for health care providers
 
19 to follow in giving information to a patient, or to a patient's
 

 
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 1 guardian if the patient is not competent to give an informed
 
 2 consent, to ensure that the patient's consent to treatment is an
 
 3 informed consent.  The standards may include the substantive
 
 4 content of the information to be given, the manner in which the
 
 5 information is to be given by the health care provider and the
 
 6 manner in which consent is to be given by the patient or the
 
 7 patient's guardian.
 
 8      (b)  If the standards established by the board of medical
 
 9 examiners include provisions which are designed to reasonably
 
10 inform a patient, or a patient's guardian, of:] Where standards
 
11 of medical practice indicate that a health care provider should
 
12 provide the patient, the patient's guardian, or the patient's
 
13 legal surrogate with information prior to obtaining consent for
 
14 proposed medical or surgical treatment, or for a diagnostic or
 
15 therapeutic procedure, information satisfying the following
 
16 categories shall be supplied to the patient, the patient's
 
17 guardian, or the patient's legal surrogate:
 
18      (1)  The condition being treated[;] or the suspected
 
19           existence of which is the indication for a diagnostic
 
20           procedure;
 
21      (2)  The nature and character of the proposed medical or
 
22           surgical treatment [or surgical procedure;] or
 
23           diagnostic procedure;
 

 
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 1      (3)  The intended and anticipated results;
 
 2      (4)  The recognized [possible] alternative [forms of
 
 3           treatment; and] medical or surgical treatments or
 
 4           diagnostic procedures including the option of not
 
 5           providing the medical or surgical treatments or
 
 6           performing the diagnostic procedures;
 
 7      (5)  The recognized [serious possible] substantial risks[,
 
 8           complications, and anticipated benefits involved in the
 
 9           treatment or surgical procedure, and in the recognized
 
10           possible alternative forms of treatment, including
 
11           nontreatment,] of serious complication or mortality
 
12           associated with the proposed medical or surgical
 
13           treatments or diagnostic procedures, with the
 
14           recognized alternative medical or surgical treatments
 
15           or diagnostic procedures, and with not undertaking
 
16           medical or surgical treatments or undergoing diagnostic
 
17           procedures; and
 
18      (6)  The recognized benefits of the proposed medical or
 
19           surgical treatments or diagnostic procedures, of
 
20           recognized alternative medical or surgical treatments
 
21           or diagnostic procedures, and of not undertaking
 
22           medical or surgical treatments or undergoing diagnostic
 
23           procedures.
 

 
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 1 [then the standards shall be admissible as evidence of the
 
 2 standard of care required of the health care providers.
 
 3      (c)  On or before January 1, 1984, the board of medical
 
 4 examiners shall establish standards for health care providers to
 
 5 follow in giving information to a patient or a patient's
 
 6 guardian, to ensure that the patient's consent to the performance
 
 7 of a mastectomy is an informed consent.  The standards shall
 
 8 include the substantive content of the information to be given,
 
 9 the manner in which the information is to be given by the health
 
10 care provider and the manner in which consent is to be given by
 
11 the patient or the patient's guardian.  The substantive content
 
12 of the information to be given shall include information on the
 
13 recognized alternative forms of treatment.
 
14      (d)] (b)  Nothing in this section shall require informed
 
15 consent from a patient [or], a patient's guardian, or a patient's
 
16 legal surrogate when emergency medical or surgical treatment or
 
17 emergency [surgical] diagnostic procedure is rendered by a health
 
18 care provider and the obtaining of consent is not reasonably
 
19 feasible under the circumstances without adversely affecting the
 
20 condition of the patient's health.  Furthermore, the disclosure
 
21 of the information required by subsection (a) may be withheld if
 
22 in the judgment of the health care provider the information would
 
23 be detrimental to the patient's mental or physical health, or not
 

 
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 1 in the best interest of the patient; provided that this action is
 
 2 consistent with general standards of medical and surgical
 
 3 practice.
 
 4      (c)  A patient, the patient's guardian, or the patient's
 
 5 legal surrogate may elect not to be given any part of or all of
 
 6 the information that otherwise would be provided in accordance
 
 7 with subsection (a).
 
 8      (d)  The following shall be necessary elements of proof that
 
 9 injury resulted from health care in a civil negligence case or
 
10 arbitration against a health care provider involving the issue of
 
11 an alleged breach of the duty to secure an informed consent from
 
12 a patient, the patient's guardian, or the patient's legal
 
13 surrogate:
 
14      (1)  That the health care provider failed to inform the
 
15           patient, the patient's guardian, or the patient's legal
 
16           surrogate of a material fact or facts relating to the
 
17           medical or surgical treatment or diagnostic procedure;
 
18      (2)  That the patient, the patient's guardian, or the
 
19           patient's legal surrogate consented to the medical or
 
20           surgical treatment or diagnostic procedure without
 
21           being aware of or fully informed of a material fact or
 
22           facts;
 
23      (3)  That a reasonably prudent patient, reasonably prudent
 

 
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 1           patient's guardian, or reasonably prudent legal
 
 2           surrogate under similar circumstances would not have
 
 3           consented to the medical or surgical treatment or
 
 4           diagnostic procedure if informed of the material fact
 
 5           or facts; and
 
 6      (4)  That the medical or surgical treatment or diagnostic
 
 7           procedure in question proximately caused injury to the
 
 8           patient.
 
 9      (e)  Under this section, a fact is defined or considered to
 
10 be a material fact if a reasonably prudent person in the position
 
11 of the patient, the patient's guardian, or the patient's legal
 
12 surrogate would attach significance to it in deciding whether or
 
13 not to submit to the proposed medical or surgical treatment or
 
14 diagnostic procedure.
 
15      (f)  Material facts under this section that must be
 
16 established by expert testimony shall be the facts described in
 
17 subsection (a)(2) to (6)."
 
18      SECTION 3.  Statutory material to be repealed is bracketed.
 
19 New statutory material is underscored.
 
20      SECTION 4.  This Act shall take effect upon its approval.
 
21 
 
22                           INTRODUCED BY:  _______________________