Haw. Civil Jury Instr. 14.4

A physician must give his or her patient information a

reasonable patient objectively needs to make an informed and

intelligent decision about whether to consent to a proposed

medical or surgical treatment or a diagnostic or therapeutic

procedure. This is the basis of informed consent.

To prevail on a claim of failure to obtain informed

consent, plaintiff(s) must prove that defendant(s) failed to

disclose at least one of the following before the proposed

treatment or procedure:

(a) The condition to be treated;1

(b) A description of the proposed treatment or procedure;2

(c) The intended and anticipated results of the proposed

treatment or procedure;3

(d) The recognized alternative treatments or procedures,

including the option of not providing these treatments

or procedures;4

1 Hawaii Revised Statutes (HRS) § 671-3(b)(1).

2 HRS § 671-3(b)(2).

3 HRS § 671-3(b)(3).

4 HRS § 671-3(b)(4).

Hawaiʻi Civil Jury Instructions (Added 6/1/21)

(e) The recognized material risks of serious complications

or death associated with the proposed treatment or

procedure;5

(f) The recognized material risks of serious complications

or death associated with the recognized alternative

treatments or procedures;6

(g) The recognized material risks of serious complications

or death associated with not undergoing any treatment

or procedure;7 or

(h) The recognized benefits of the recognized alternative

treatments or procedures.8

A plaintiff(s) must also prove that:

(a) The patient sustained injury; and

(b) Defendant’s(s’) failure to make the disclosure(s)

was a legal cause of the patient’s injury in that:

5 HRS § 671-3(b)(5)(A). This element substitutes the word

“death” for the statutory word “mortality.”

6 HRS § 671-3(b)(5)(B). This element substitutes the word

“death” for the statutory word “mortality.”

7 HRS § 671-3(b)(5)(C). This element substitutes the word

“death” for the statutory word “mortality.”

8 HRS § 671-3(b)(6).

Hawaiʻi Civil Jury Instructions (Added 6/1/21)

(i) Defendant’s(s’) treatment or the procedure

was a substantial factor in bringing about

the patient’s injury; and

(ii) A reasonable person in the patient’s

position would not have consented to the

treatment or procedure had the patient

received the required disclosure; and

(c) There is no superseding cause of the patient’s injury.

Expert testimony is not required to prove what information needs

to be given to a patient in order for the patient to make an

informed and intelligent choice about whether to consent to the

proposed treatment or procedure.

However, expert testimony is required to prove: (1) the

recognized material risks of serious complications or death

associated with the proposed treatment or procedure, including

the nature of the risks inherent in a particular treatment or

procedure; (2) the probabilities of therapeutic success; (3) the

nature of available alternatives to the proposed treatment or

procedure; and (4) the recognized material risks of serious

complications or death associated with not undergoing any

treatment or procedure.9

9 Practice Note: The list of elements requiring expert testimony

should be modified on a case-by-case basis