STAND. COM. REP. 793
Honolulu, Hawaii
, 2003
RE: H.B. No. 651
H.D. 2
Honorable Calvin K.Y. Say
Speaker, House of Representatives
Twenty-Second State Legislature
Regular Session of 2003
State of Hawaii
Sir:
Your Committee on Judiciary, to which was referred H.B. No. 651, H.D. 1, entitled:
"A BILL FOR AN ACT RELATING TO INFORMED CONSENT,"
begs leave to report as follows:
The purpose of this bill is to:
(1) Render optional the Board of Medical Examiners' statutory obligation to establish standards for health care providers to follow in providing information to ensure a patient's consent to treatment is an informed consent;
(2) Condition a health care provider's duty to supply information prior to obtaining consent to a treatment or therapeutic procedure on "general standards of medical practice" that indicate the health care provider should provide information prior to obtaining the patient's consent;
(3) Rescind a provision holding standards established by the Board of Medical Examiners admissible as evidence of the standard of care required of a health care provider if those standards include provisions designed reasonably to inform a patient of certain enumerated items;
(4) Reword the list of topics about which the health care provider must inform the patient;
(5) Authorize a health care provider to withhold information if, in the judgment of the health care provider, the information would be detrimental to the patient's mental or physical health or not in the patient's best interest; and
(6) Allow a patient (or the patient's guardian or surrogate) to decide that "all or part" of the otherwise required information need not be given.
HAPI Physicians’ Indemnity Plan, the Hawaii Association of Health Plans, Hawaii Medical Association, Healthcare Association of Hawaii, Hawaii Medical Service Association, and several concerned citizens testified in support of this bill. The Consumer Lawyers of Hawaii and the Hawaii Coalition for Health testified in opposition to this bill.
This measure would replace the "patient-oriented" standard of disclosure with the "physician-oriented" standard. The patient-oriented standard "requires a physician to disclose 'what a reasonable patient needs to hear from his or her physician in order to make an informed and intelligent decision regarding treatment.'" Carr v. Strode, 79 Haw. 475, 484, 904 P.2d 489, 498 (1995). The physician-oriented standard lets the physician determine the amount of risk and benefit information the patient needs to receive to make an intelligent decision regarding proposed medical treatment.
Your Committee received conflicting testimony about the impact of informed consent on medical malpractice claims. Your Committee was urged not to speculate that "claims for medical negligence should significantly increase because of the doctrine of informed consent which has been part of our law for more than thirty years." On the other hand, one physician testified that "lawsuits against Hawaii physicians for not complying with the standards for informed consent . . . [have] resulted in higher malpractice insurance premiums, which are passed on to consumers, our patients."
Your Committee was urged to replace the term "recognized serious possible risks" (called a potential "field day for attorneys" because "everything is 'possible'") with "recognized substantial risks" in the Board of Medical Examiners' rules.
The approach taken in Louisiana, where a Medical Disclosure Panel develops informed consent forms, was brought to your Committee's attention.
The 2002 Hawaii Supreme Court opinion, Barcai v. Betwee, 98 Haw. 470, 50 P.3d 946 (2002), sheds light on many concerns expressed by this bill's proponents, including the circumstances where a physician is authorized to act without a patient's informed consent.
Your Committee has not made substantive changes to this measure, and offers the foregoing to further discussion of these complex issues.
Your Committee has amended this measure by:
(1) Changing the effective date to July 1, 2050, to promote further discussion; and
(2) Making technical, nonsubstantive changes for clarity and style.
As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 651, H.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as H.B. No. 651, H.D. 2.
Respectfully submitted on behalf of the members of the Committee on Judiciary,
|
____________________________ ERIC G. HAMAKAWA, Chair |
||