Bernard v. Char

Supreme Court of Hawai'i · Torts

Tortsmedical malpracticeinformed consentinformed consentmedical malpracticedental malpracticeduty to disclosepatient-oriented disclosure

Facts

Bernard went to Dr. Char with a toothache, and an x-ray showed extensive decay in tooth no. 15 along with unusual conditions in the adjacent tooth and surrounding bone. Bernard testified that Dr. Char advised extraction as the best alternative and did not inform him of possible adverse consequences; Dr. Char and Bernard gave conflicting accounts about what risk disclosures were made. During the extraction, Dr. Char removed not only tooth no. 15 but also tooth no. 16 and portions of fused bone, leaving a hole from Bernard's mouth to his sinus cavity. Bernard sued, and the jury found Dr. Char negligent and awarded damages.

Issue

In a common law informed consent action, is the physician's duty of disclosure measured by a patient-oriented standard rather than a physician-oriented one? Also, to prove causation, must the plaintiff testify that he personally would have refused treatment if properly informed, or is causation judged by some objective standard?

Rule

In Hawai'i informed consent actions, the standard of disclosure is patient-oriented. The causation question is judged by an objective standard: whether a reasonable person in the plaintiff-patient's position would have consented to the treatment that caused the injury had the plaintiff-patient been properly informed of the risk that occurred.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Honolulu, Dr. Lena Mori recommended a shoulder injection for Caleb Ruiz and failed to mention a risk of permanent skin discoloration. The discoloration occurred, and at trial Caleb never testified that he personally would have refused the injection, but evidence showed he worked as a wedding photographer and had a safer, though more expensive, physical-therapy option available.

If Dr. Mori moves for a directed verdict solely because Caleb did not say he would have refused the injection, how should the court rule?

Explanation. The majority held that a plaintiff-patient need not testify that he or she actually would have refused treatment. Part (b) causation is judged objectively: whether a reasonable person in the plaintiff-patient's position would have consented had properly informed of the risk that occurred. The absence of Caleb's subjective testimony is therefore not fatal. (Derived from Bernard v. Char (n.d.).)