THE SENATE

S.R. NO.

44

TWENTY-SECOND LEGISLATURE, 2003

  

STATE OF HAWAII

  
   

SENATE RESOLUTION

 

REQUESTING THAT THE BOARD OF MEDICAL EXAMINERS CONVENE A PANEL TO DEVELOP PROTOCOLS AND MATERIALS FOR PHYSICIANS USE IN COMMUNICATING MATERIAL RISKS OF MEDICAL TREATMENTS AND SURGICAL PROCEDURES TO OBTAIN PATIENTS' INFORMED CONSENT.

 

WHEREAS, the United States Court of Appeals for the District of Columbia, in Canterbury v. Spence, devised what has come to be known as the "patient-oriented" standard for disclosing material risks of medical treatments or surgical procedures to patients; and

WHEREAS, the scope of information to be disclosed to patients is judged according to an objective or reasonable person standard; and

WHEREAS, the Canterbury court recognized and respected a patient's right of self-determination to choose a course of treatment or procedure, but acknowledged that this right could be exercised only after the patient possessed enough information to enable the patient to make an intelligent choice; and

WHEREAS, the Hawaii Supreme Court expressly adopted the patient-oriented standard pertaining to a physician's duty to disclose information in Carr v. Strode; and

WHEREAS, pursuant to §671-3(a), Hawaii Revised Statutes, the Board of Medical Examiners is required to establish, as practicable, standards for health care provider use in disclosing information to patients to obtain patients' informed consent; and

WHEREAS, the Board determined that it is not practicable to set substantive content standards, and instead established general standards for disclosure of information to patients by health care providers to obtain consent for a medical treatment or surgical procedure that include:

(1) The condition to be treated or the suspected existence of which is the indication for a diagnostic procedure;

(2) A description of the proposed medical or surgical treatment or diagnostic procedure;

(3) The intended and anticipated result;

(4) The recognized alternative treatments or diagnostic procedures, including the option of not providing treatment or performing the diagnostic procedure;

(5) The recognized substantial risks of serious complication or mortality associated with the proposed treatment or diagnostic procedure, with the recognized alternative treatments or diagnostic procedures, and with not undertaking treatment or diagnosis; and

(6) The recognized benefits of the proposed treatment or diagnostic procedure, of recognized alternative treatments or diagnostic procedures, and of not undertaking treatment or diagnosis;

and

WHEREAS, the Board recognized the "therapeutic privilege exception" and authorized health care providers to withhold information if, in the health care provider's opinion, and if consistent with general standards of medical and surgical practice, disclosure of risk information would be detrimental to the patient's mental or physical health, or not in the best interest of the patient; and

WHEREAS, the Board gives health care providers discretion in the manner in which information may be disclosed as long as the information is in a language the patient is reasonably expected to understand; and

WHEREAS, health care providers should not be unduly burdened by the requirement that patients consistently receive information necessary to make an informed decision about a treatment or procedure; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-Second Legislature of the State of Hawaii, Regular Session of 2003, the House of Representatives concurring, that the Board of Medical Examiners is requested to convene a panel to develop protocol and materials containing information or a means for conveying the information required for informed consent with regard to particular medical treatments or procedures that include among other things:

(1) Brochures;

(2) Audio recordings; or

(3) Video recordings;

and

BE IT FURTHER RESOLVED that the panel shall consist of:

(1) At least two practicing physicians with appropriate expertise;

(2) A faculty member from the John A. Burns School of Medicine; and

(3) At least two attorneys with five or more years of experience in the area of medical malpractice, and in equal numbers from the plaintiffs' and defendants' bar; and

BE IT FURTHER RESOLVED that the panel shall include one member of the Board of Medical Examiners who shall serve as the chairperson and facilitator for organizational purposes; and

BE IT FURTHER RESOLVED that the panel is requested to prepare necessary legislation, and report findings and recommendations to the legislature no later than twenty days prior to the convening of the Regular Session of 2004; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Chair of the Board of Medical Examiners, the Director of the Department of Commerce

and Consumer Affairs, the Dean of the John A. Burns School of

Medicine, and the Hawaii State Bar Association.

 

 
 

OFFERED BY:

_____________________________

Report Title:

Informed Consent; Panel