Leyson v. Steuermann (705 P.2d 37) 1985/font>

…Leyson sought medical care from Steuermann in two separate time periods. He first began seeing Steuermann in Hilo on June 16, 1970 for a skin disorder, which was later diagnosed by Steuermann as severe psoriasis.

Steuermann treated Leyson's psoriasis with injections and oral doses of corticosteroids (Kenalog, Prednisone, Bepatan, and Medrol-pak), an antimetabolite (methotrexate), and topical medication (Synalar). Steuermann generally prescribed the steroids approximately once a month in doses of either 40 or 60 milligrams. During brief periods of hospitalization, Steuermann initially treated Leyson with daily 40-milligram doses of the steroids and gradually tapered off the doses. Leyson continued as Steuermann's patient until November 1971. During this first period, Steuermann did not advise Leyson as to any possible side effects of the treatment.

After he last saw Steuermann in November 1971, Leyson moved to Honolulu where he was treated for his psoriasis by Kaiser Medical Center from approximately March 1972 until September 1972. Leyson then moved to California where he also received treatment.

In 1973, Leyson returned to Hilo. From 1974 until December 1975 Leyson was under the care of physicians at Hilo Medical Center. He received treatments of Prednisolone (similar to Prednisone) for his continuing psoriasis. In 1975, he experienced problems with his joints and required surgery to his hip.

On December 8, 1975 Leyson resumed treatment by Steuermann which continued until May 1977. Steuermann treated Leyson generally with injections of the steroid Kenalog in the same doses he had administered earlier. There is conflicting evidence whether during this second period of treatment Steuermann informed Leyson of the risks created by the treatment.

From 1977 to 1979, Leyson received steroid treatment from Dr. Irwin of the Hilo Medical Group. This treatment consisted of appreciably larger doses of Prednisone (usually 60 milligrams per day, up to as much as 180 milligrams per day) and topical steroids. In 1979, Leyson was hospitalized for a severe flare up of his psoriasis at Kuakini Medical Center where he also received steroid treatment. During 1979 and 1980, Leyson began to experience pain in his shoulders and developed a cataract problem….

Leyson's contention that the trial court failed to properly instruct the jury requires a review of the doctrine of informed consent as applied in Hawaii. The tort based on this doctrine is more accurately described as the tort of a physician's negligent failure to disclose risk information. See Canterbury v. Spence (1972).

The leading case in Hawaii on the doctrine of informed consent is Nishi v. Hartwell (1970). It describes the doctrine as follows: "The doctrine of informed consent imposes upon a physician a duty to disclose to his patient all relevant information concerning a proposed treatment, including the collateral hazards attendant thereto, so that the patient's consent to the treatment would be an intelligent one based on complete information.

"However, the doctrine recognizes that the primary duty of a physician is to do what is best for his patient and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest."

Nishi, however, alternatively described the doctrine in the following terms: "In determining the question of physician's liability for nondisclosure courts generally follow the rule applicable to medical malpractice actions predicated on alleged negligence in treatment which requires the question of negligence to be decided by reference to relevant medical standards and imposes on the plaintiff the burden of proving the applicable standard by expert medical testimony…. In this case, plaintiffs did not adduce any expert medical testimony to establish a medical standard from which the jury could find that defendants deviated from their duty to Dr. Nishi. The only medical standard established here justified defendants' omission to disclose….The medical standard so established was that a competent and responsible medical practitioner would not disclose information which might induce an adverse psychosomatic reaction in a patient highly apprehensive of his condition." Thus, Nishi initially describes the doctrine as a precise and definite duty but then it alternatively describes the doctrine as a duty to comply with relevant medical standards. These two descriptions appear to be contradictory. Moreover, the latter approach fails to recognize that "every human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body," Schloendorff v. Society of New York Hospital (1914), and that what the medical profession thinks their patients should be told is not necessarily what their patients would find significant in making their informed choices. See, e.g., Canterbury v. Spence; Scott v. Bradford (1979).

Although the question of what must be disclosed is not clear, there is general agreement as to what does not have to be disclosed. "The informed consent doctrine is circumscribed by a variety of limitations, and the physician is not required to disclose risks that are unexpected n4 or immaterial, by whatever standard, nor even material risks where disclosure is precluded by an emergency situation, by the patient's incapacity, by the patient's waiver of his right to receive the information, or where disclosure would be harmful to the patient, which gives the doctor a "therapeutic privilege" to withhold the information. Nor, of course, need the doctor disclose risks that are commonly understood, obvious, or already known to the patient." Prosser and Keeton on The Law of Torts , § 32 at 192 (5th ed. 1984)….

On June 9, 1976 Hawaii Revised Statutes (HRS) chapter 671, which deals with medical torts, became effective. Prior to its amendment in 1983, it stated in relevant part as follows: "Informed consent; board of medical examiners standards. (a) In any action for medical tort based on an incident that occurred after January 1, 1977, based on the rendering of professional service without informed consent, evidence may be introduced that the health care provider complied with standards established by the board of medical examiners governing the information required to be given by or at the direction of the health care provider to a patient, or the patient's guardian in the case of a patient who is not competent to give informed consent.

"(b) The board of medical examiners shall, insofar as practicable, establish reasonable standards of medical practice, applicable to specific treatment and surgical procedures, for the substantive content of the information required to be given and the manner in which it is given and in which consent is received in order to constitute informed consent from a patient or a patient's guardian. The standards shall include provisions which are designed to reasonably inform and to be understandable by a patient or a patient's guardian of the probable risks and effects of the proposed treatment or surgical procedure, and of the probable risks of not receiving the proposed treatment or surgical procedure. The standards established by the board shall be prima facie evidence of the standards of care required but may be rebutted by either party."

(c) Nothing in this section shall require informed consent from a patient or a patient's guardian when emergency treatment or emergency surgical 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.

We note that HRS § 671-3 (1976) does not apply Nishi's duty to disclose "all collateral hazards." Rather, it applies a duty to disclose "the probable risks and effects of the proposed treatment or surgical procedure." It is not clear from the language or history of chapter 671 whether the legislature's intent was to supplant Nishi's ambiguously defined duty of disclosure.

Nevertheless, the tort of Steuermann's negligent failure to disclose risk information involves the following material elements: (1) Steuermann owed a duty to disclose to Leyson the risk of one or more of the collateral injuries that Leyson suffered; (2) Steuermann breached his duty; (3) Leyson suffered injury; and (4) Steuermann's breach of duty was a cause of Leyson's injury in that: (a) Steuermann's treatment was a substantial factor in bringing about Leyson's injury and (b) Leyson, acting rationally and reasonably, would not have undergone the treatment had he been informed of the risk of the harm that in fact occurred; and (5) no other cause is a superseding cause.…