Other Aspects of Disclosure
Besides risks associated with surgery or a medication, courts have also looked at other aspects of disclosure in the doctor-patient relationship. Some litigated examples include disclosing the limited experience of a neurosurgeon (Johnson v. Kokemoor, 545 N.W.2d 495 [Wis. 1996]), financial incentives amounting to a breach of fiduciary responsibility (Moore v. The Regents of the University of California, 793 P.2d 479 [Cal. 1990]), and a surgeon's disclosure of his positive HIV status (Estate of Behringer v. The Medical Center at Princeton, 192 A.2d 1251 [N.J. Super. 1991]) or alcoholism (Hidding v. Williams, 578 So.2d 1192 [La.App. 1991]). However, in Arato v. Avedon, the California Supreme Court held that the law did not require physicians to inform their terminally ill patients of their prognosis and life expectancy (Arato v. Avedon, 858 P.2d 598 [Cal. 1993]).
An example of statutory law regarding informed consent is found in Hawaii Revised Statutes §671-3. Amended by the 2003 legislature, the statute mandates disclosure of “recognized material risks of serious complications or mortality” but does not define the word “material.” This amended language replaced the earlier version's “recognized, serious, possible risks, complications and anticipated benefits,” arguably lightening the doctor's duty regarding risk disclosure. In reality, the new language is unlikely to have a significant practical effect. An earlier 1976 version of the law merely required the disclosure of “probable risks and effects.”
Contact the author at siang@hawaii.edu.