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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

EDWIN GARCIA, 

Petitioner/Plaintiff-Appellant, 

vs. 

BERNARD ROBINSON, M.D., 

Respondent/Defendant-Appellee. 

SCWC-13-0000388 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-13-0000388; CIV. NO. 10-1-2338) 

MAY 3, 2016 

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ. 

OPINION OF THE COURT BY POLLACK, J. 

 In Ray v. Kapiolani Medical Center, 125 Hawaiʻi 253, 

259 P.3d 569 (2011), this court noted that Hawaiʻi Revised 

Statutes (HRS) § 671-3(b) supplies the standard for a 

physician’s duty to disclose information to the patient. Id. at 

266, 259 P.3d at 582. Following Ray, in Ngo v. Queen’s Medical 

Center, 136 Hawaiʻi 54, 358 P.3d 26 (2015), we held that the 

Electronically Filed

Supreme Court

SCWC-13-0000388

03-MAY-2016

08:29 AM
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prior formulation of the first element of the common law medical 

tort of negligent failure to obtain informed consent had changed 

from “the physician owed a duty to disclose the risk of one or 

more of the collateral injuries that the patient had suffered” 

to “the physician owed a duty of disclosure under HRS § 671-

3(b).” Id. at 68-69, 358 P.3d at 40-41. In this case, we apply 

Ngo and further clarify our common law as to the nature and 

source of expert medical evidence required to establish a prima 

facie case of negligent failure to obtain informed consent. 

I. BACKGROUND 

A. Garcia’s Injury and Medical Treatment 

 Edwin Garcia suffered a lower back injury at work and 

sought medical treatment from his then-primary care provider, 

who completed an initial evaluation of his condition. He 

subsequently received medical and conservative therapy to treat 

his back injury. However, Garcia felt that this treatment did 

not sufficiently improve his condition to allow him to perform 

satisfactorily at work. An MRI of his back showed evidence of 

discogenic disease with mild bulge and neural encroachment in 

his lower back, and he was referred to Dr. Bernard Robinson for 

a neurosurgical consultation. 

 Garcia first consulted with Dr. Robinson regarding his 

injury on January 11, 2008. Prior to making his decision to 
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undergo lumbar spine surgery, Garcia generally discussed with 

Dr. Robinson the risks and consequences involved with the 

proposed surgery. During that discussion, Garcia stated that 

Dr. Robinson told him the surgery had a ninety-percent chance of 

success, he would be pain free, and he would be “up and dancing 

in three days.” Based on these representations, Garcia related 

that he decided to proceed with the surgery. 

 At his deposition, Dr. Robinson testified that he did 

not recall communicating that Garcia would be “up and dancing” 

after the surgery, stated that he does not discuss percentages 

with his patients, and denied “unequivocally” that he told 

Garcia he would have no further pain. Dr. Robinson stated that 

it would be “preposterous” to tell a patient that he would be 

“dancing three days after lumbar spine surgery” because lumbar 

spine surgery is “one of the most painful experiences that 

patients undergo in surgery” and it takes time to recover from 

this procedure. He also indicated that he discusses the risk of 

increased pain with every patient because there is a risk that 

patients might experience further pain from this procedure. 

 Dr. Robinson related that he specifically advised 

Garcia of other surgical risks associated with the proposed 

procedure, including allergy, hemorrhage, infection, technical 

problems, paralysis, failure of surgery to be beneficial, and 
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even death. He indicated that he discusses the same list of 

risks with every patient in addition to other risks depending on 

the situation. Dr. Robinson testified that he counsels each 

patient several times in extensive detail before performing the 

surgery to ensure that the patient is fully informed and really 

wants to undergo surgery. He tells every patient about 

potential technical problems and explains that “surgery is a 

very involved complex production of treatment and there are some 

things that can go wrong.” 

 Although Dr. Robinson denied discussing percentages 

with Garcia, he testified that generally he tries to imply that 

there is a better chance that the patient’s condition will 

improve after the surgery than following the patient’s current 

course of treatment. Dr. Robinson also stated that he told 

Garcia that surgery for discogenic disease could “resolve,” or, 

in other words, could improve his pain symptoms. He indicated 

that he carefully advised Garcia of his diagnosis and treatment 

options and urged Garcia, before undergoing surgery, to continue 

conservative treatment until it no longer provided sufficient 

relief. Dr. Robinson further explained that the surgery 

performed was “not of an emergency nature” and expressed his 

view that Garcia could have continued conservative treatment. 
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 On February 28, 2008, Garcia signed a “Consent to 

Operation Postoperative Care, Medical Treatment, Anesthesia 

and/or Procedure” form (Consent Form). The Consent Form 

indicated that Garcia authorized Dr. Robinson to treat 

“degenerative lumbar disc and spine disease at L4-5-S1,” or, in 

lay terms, “pinched nerves in the lower back causing leg pains.” 

The pre-printed language on the Consent Form stated that “[t]he 

procedure(s) planned for treatment of my condition(s) has (have) 

been explained to me by my physician as follows,” to which Dr. 

Robinson handwrote in “L4-5 microlaminectomy and foraminotomy 

with discectomy if needed after intraoperative examination of 

the disc.” This meant that Dr. Robinson would perform a “low 

back spinal surgery to decompressed pinched nerves as 

necessary.” 

 The pre-printed language of the Consent Form also 

stated the following: “I have been informed that there are many 

significant risks, such as severe loss of blood, infection, 

cardiac arrest and other consequences that can lead to death or 

permanent or partial disability, which can result from any 

procedure” and “[n]o promise or guarantee has been made to me as 

to result or cure.” Dr. Robinson handwrote on the bottom of the 

Consent Form, under the heading “additional comments,” that 
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“[r]isks include allergy, hemorrhage, infection, technical 

problems, paralysis, and death.”1 

 Dr. Robinson testified that he also prepared an 

Admission Form as a requirement to have Garcia admitted to the 

hospital for surgery. The Admission Form indicated that the 

“Chief Complaint” was “low back and left leg pain from [a] workrelated accident.” It noted that Garcia walked with a cane and 

showed an “antalgic gait with a short stance phase on the left 

side,” which Dr. Robinson explained meant that it looked like 

Garcia experienced pain when he walked. Dr. Robinson also noted 

on the Admission Form under “Physical Examination” that Garcia 

“has [a] low tolerance to standing in 1 position for more than 5 

minutes including bending and standing” and “sits toward the 

 1

 In addition, under the heading “Full Disclosure” on the Consent 

Form, there was other pre-printed language, which read as follows: 

I agree that my physician has informed me of the: 

a) Diagnosis or probable diagnosis, 

b) Nature of the treatment or procedures recommended, 

c) Risks or complications involved in such treatment or 

procedures, 

d) Alternative forms of treatment, including non-treatment, 

available, 

e) Anticipated results of treatment. 
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right side of his buttock to avoid pressure on the left sciatic 

area.” 

 Under the heading “Plan” of the Admission Form, the 

following language was printed: 

The patient was carefully advised of his diagnosis and 

treatment options. He was told that surgery for discogenic 

disease could resolve and [sic] risk of allergy, 

hemorrhage, infection, technical problem, paralysis, 

failure of surgery to be beneficial and even death. He was 

advised that bladder and bowel control could also be 

impaired apparently if things go poorly. He was advised 

that he can still choose to live with the discomfort and be 

treated conservatively as in the past but he chose to 

proceed with surgical treatment and gave his informed 

consent. 

 Garcia’s signature does not appear on the Admission 

Form, and there appears to be no place on it for the patient’s 

signature. Garcia testified that he understood that 

conservative treatment combined with physical therapy and pain 

medications was not going to improve his condition and allow him 

to return to work. 

 On March 4, 2008, Dr. Robinson performed surgery on 

Garcia, which included a “bilateral L4-5 and right L5-S1 partial 

laminectomy with forminatomy,” and Dr. Robinson later expressed 

his opinion that the operation was done properly. However, 

after the surgery, Garcia reported increased low back pain, 

uncontrolled shaking of his left leg, and numbness in his left 

leg and foot. He also described suffering emotionally, 

experiencing depression, and having trouble sleeping. Garcia 
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related that he received treatment for mental and/or emotional 

disturbance after the surgery. 

 On March 13, 2008, Dr. Robinson evaluated Garcia’s 

post-surgery condition. Garcia reported needing a cane to walk 

and experiencing increased pain in his lower back such that he 

could not sit on both buttocks to distribute his weight evenly 

because his left leg would become numb. Dr. Robinson testified 

that he thought Garcia lacked control over his “right leg or 

perhaps both legs” and observed his “right leg shaking 

uncontrollably” during the appointment. 

 On April 4, 2008, Garcia returned for another postsurgical consultation. Dr. Robinson suspected and noted in his 

report that Garcia was experiencing “failed back syndrome,” 

which meant that Garcia did not experience any relief after 

receiving the surgical treatment. Garcia met with Dr. Robinson 

several more times as a follow-up to his surgical procedure, 

with the last visit on December 11, 2008. Before this last 

visit, a postoperative MRI demonstrated a “mild bulging disk 

above the level of the surgery” and showed that “the nerves 

looked like they were decompressed.” 

 Garcia stated that he later consulted with Jeffrey 

Lee, M.D., who informed him that he had a “bulging disc above 

the level of surgery” caused by the surgery and that the 
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“surgery should have been at a different level.” After 

conferring with Jon Scarpino, M.D., Garcia indicated that he 

learned that the success rate of the surgery was fifty-percent 

or less. Garcia related that his condition did not improve 

after the surgery or leave him free of pain; rather, his left 

leg deteriorated after the surgery and his lower back pain 

worsened. He reported that, despite the pain in his back before 

the surgery, he did not need to use a cane whereas he needed to 

use a cane after the surgery.2

 

B. Circuit Court Proceedings 

 On November 1, 2010, Garcia filed a Complaint against 

Dr. Robinson in the Circuit Court of the First Circuit (circuit 

court), setting forth claims of medical negligence and negligent 

failure to obtain informed consent. In the Complaint, Garcia 

asserted, inter alia, that Dr. Robinson “failed to properly 

inform [him] of the risks involved with the surgery and 

misrepresented the lack of risk involved.” Specifically, Garcia 

stated that Dr. Robinson informed him that the type of surgery 

performed had a ninety-percent success rate and that Garcia 

would be “dancing in a couple of days” after the surgery. 

 2

 Garcia subsequently filed a medical malpractice claim before the 

Medical Claims Conciliation Panel, which issued its decision on September 3, 

2010. 
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Garcia contended that, as a consequence of Dr. Robinson’s 

negligence in performing the surgery and in advising him of the 

risks, he suffered serious bodily injuries, experienced physical 

and emotional pain and suffering, incurred expenses for health 

care and products, and endured loss of income and other damages. 

 Dr. Robinson filed an Answer denying Garcia’s claims 

of negligence in performing the surgery and in informing him of 

the risks associated with the surgery. Dr. Robinson 

subsequently filed a Motion for Summary Judgment (MSJ). Dr. 

Robinson contended, inter alia, that he was entitled to judgment 

as a matter of law on Garcia’s claim of negligent failure to 

obtain informed consent because Garcia did not have medical 

expert testimony as to the “materiality” of the risk to support 

his claim. Dr. Robinson maintained that HRS § 671-3(b) governs 

the physician-owed duty of disclosure and contended that to 

proceed on a lack of informed consent claim, a plaintiff must 

adduce expert testimony as to “the nature of risks inherent in a 

particular treatment, the probabilities of therapeutic success, 

the frequency of the occurrence of particular risks, and the 

nature of available alternatives to treatment” (materiality 

factors). Because Garcia did not have expert testimony as to 

the materiality factors, Dr. Robinson argued that Garcia’s lack 

of informed consent claim must be “dismissed.” Additionally, 
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relying on his own declaration that his care and treatment of 

Garcia was not a proximate cause of Garcia’s injuries, Dr. 

Robinson maintained that Garcia’s claims failed for lack of an 

expert opinion establishing that the surgery was the proximate 

cause of Garcia’s injuries.3

 At the September 11, 2012 MSJ hearing, Garcia 

contended that Dr. Robinson did not accurately inform him of the 

chances of success of the proposed surgical procedure and 

misrepresented the anticipated results in indicating that there 

was a ninety-percent chance of success and that he would be “up 

and dancing” in a couple of days. Relying on Dr. Robinson’s 

deposition testimony regarding what risks were necessary to 

disclose, Garcia argued that he had provided sufficient 

testimony to advance his lack of informed consent claim to 

trial. Garcia maintained that he did not need to present 

additional expert testimony to confirm Dr. Robinson’s testimony. 

 At the close of the hearing, the circuit court 

determined that a claim of negligent failure to obtain informed 

consent requires that a plaintiff establish the materiality of 

the risk asserted by providing expert testimony as to the common 

 3

 In his MSJ, Dr. Robinson also contended that Garcia’s medical 

negligence claim must be “dismissed” because there was no medical expert 

opinion with respect to the applicable standard of care, a breach of that 

standard of care, or the proximate cause of Garcia’s injuries.
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law materiality factors. These materiality factors were stated 

by the court as follows: (1) the nature of the risks inherent in 

a particular treatment; (2) the probabilities of therapeutic 

success; (3) the frequency of the occurrence of particular 

risks; and (4) the nature of available alternatives to 

treatment. In a colloquy with the circuit court, Garcia’s 

counsel acknowledged that Dr. Robinson only testified as to the 

first and second materiality factors. Consequently, the circuit 

court concluded that Garcia did not meet all four factors 

required to establish the materiality of the risks and orally 

granted Dr. Robinson’s MSJ as to both claims set forth in the 

Complaint. The circuit court issued its Order Granting MSJ and 

entered Judgment in favor of Dr. Robinson as to all claims 

arising out of the Complaint.4

C. Appellate Proceedings 

 On appeal to the Intermediate Court of Appeals (ICA), 

Garcia contended, inter alia, that the circuit court erred in 

concluding that expert testimony as to the four common law 

materiality factors is required to establish a prima facie case 

 4

 The circuit court did not address, either in its oral ruling or 

in the subsequent written Order Granting MSJ, Dr. Robinson’s contention that 

Garcia lacked sufficient evidence to demonstrate that the proximate cause of 

his injuries was the surgery.
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for a claim of negligent failure to obtain informed consent.5 

Garcia asserted that his claim was based upon a violation of Dr. 

Robinson’s duty of disclosure under HRS § 671-3(b)(5)(A). 

Garcia maintained that there is substantial evidence in the 

record to conclude that Dr. Robinson failed to accurately advise 

him of the material risks of serious complications associated 

with the procedure, including increased pain, uncontrollable 

shaking, and numbness in his feet and legs. 

 In response, Dr. Robinson argued that, under Hawaiʻi 

case law, medical expert testimony as to all four materiality 

factors is required to proceed on a claim of negligent failure 

to obtain informed consent. Because his testimony did not 

address all four materiality factors, Dr. Robinson contended 

that it was not sufficient to satisfy the expert testimony 

requirement for a lack of informed consent claim. 

 In its opinion, the ICA held that a plaintiff must 

establish the materiality of the alleged risk and thus must 

provide expert testimony as to all four common law materiality 

factors. The ICA concluded that Garcia lacked expert testimony 

as to two of the four materiality factors and thus failed to 

 5

 Garcia did not challenge that portion of the circuit court’s 

Order Granting MSJ and Judgment related to his medical negligence claim. 
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“prove the materiality of the risk asserted.” Accordingly, the 

ICA affirmed the circuit court’s Judgment. 

II. STANDARD OF REVIEW 

 Appellate courts review an award of summary judgment 

de novo under the same standard applied by the circuit court. 

Thomas v. Kidani, 126 Hawaiʻi 125, 127-28, 267 P.3d 1230, 1232-33 

(2011). This court articulated that standard as follows: 

Summary judgment is appropriate if the pleadings, 

depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. 

Id. at 128, 267 P.3d at 1233 (quoting Fujimoto v. Au, 95 Hawaiʻi 

116, 136, 19 P.3d 699, 719 (2001)). “A fact is material if 

proof of that fact would have the effect of establishing or 

refuting one of the essential elements of a cause of action or 

defense asserted by the parties.” Id. at 129, 267 P.3d at 1234 

(quoting Fujimoto, 95 Hawaiʻi at 136, 19 P.3d at 719). 

 The moving party bears the burden of demonstrating 

that there is no genuine issue as to any material fact with 

respect to the essential elements of the claim or defense and 

must prove that the moving party is entitled to judgment as a 

matter of law. French v. Haw. Pizza Hut, Inc., 105 Hawaiʻi 462, 

470, 99 P.3d 1046, 1054 (2004). This court must review the 
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evidence and inferences in the light most favorable to the nonmoving party. Thomas, 126 Hawaiʻi at 128, 267 P.3d at 1233. 

III. DISCUSSION 

 In his Application for Writ of Certiorari, Garcia 

asserts that the ICA erred in affirming the circuit court’s 

requirement of adducing expert testimony upon the common law 

materiality factors in order to maintain a prima facie case of 

negligent failure to obtain informed consent. Thus, Garcia 

contends that the ICA further erred in ruling that he did not 

provide sufficient medical evidence to establish a prima facie 

violation of Dr. Robinson’s statutory duty of disclosure. 

A. A Physician’s Statutory Duty of Disclosure 

 This court has determined that the standard for a 

physician’s duty to disclose information to the patient is 

prescribed by HRS § 671-3(b). Ray v. Kapiolani Med. Ctr., 125 

Hawaiʻi 253, 266, 259 P.3d 569, 582 (2011). In accordance with 

Ray, we recently held that the first element of the common law 

medical tort of negligent failure to obtain informed consent is 

“subject to appropriate modification based on the specific 

provisions of HRS § 671-3(b) alleged to have been violated.” 

Ngo v. Queen’s Med. Ctr., 136 Hawaiʻi 54, 68-69, 358 P.3d 26, 40-

41 (2015). Thus, Ngo established that a plaintiff must prove 
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the following elements for a claim of negligent failure to 

obtain informed consent: 

(1) the physician owed a duty of disclosure under 

HRS § 671-3(b); 

(2) the physician breached that duty; 

(3) the patient suffered injury; 

(4) the physician’s breach of duty was a cause of the 

patient’s injury in that (a) the physician’s 

treatment was a substantial factor in bringing about 

the patient’s injury and (b) a reasonable person in 

the plaintiff patient’s position would not have 

consented to the treatment that led to the injuries 

had the plaintiff patient been properly informed; and 

(5) no other cause is a superseding cause of the 

patient’s injury. 

Id. 

 As to the first element of a claim of negligent 

failure to obtain informed consent, HRS § 671-3(b) sets forth 

the information that must be provided prior to obtaining consent 

for a proposed treatment or procedure: 

(b) The following information shall be supplied to the 

patient or the patient’s guardian or legal surrogate prior 

to obtaining consent to a proposed medical or surgical 

treatment or a diagnostic or therapeutic procedure: 

(1) The condition to be treated; 

(2) A description of the proposed treatment or 

procedure; 

(3) The intended and anticipated results of the 

proposed treatment or procedure; 

(4) The recognized alternative treatments or 

procedures, including the option of not 

providing these treatments or procedures; 

(5) The recognized material risks of serious 

complications or mortality associated with: 
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(A) The proposed treatment or procedure; 

(B) The recognized alternative treatments or 

procedures; and 

(C) Not undergoing any treatment or 

procedure; and 

(6) The recognized benefits of the recognized 

alternative treatments or procedures. 

HRS § 671-3(b) (Supp. 2007); see also Ngo, 136 Hawaiʻi at 68-69, 

358 P.3d at 40-41. Thus, with respect to the first element, a 

plaintiff must provide evidence showing that the physician did 

not disclose information as required under a subsection of 

HRS § 671-3(b) prior to obtaining consent from the patient, 

guardian or surrogate for a proposed medical or surgical 

treatment or a diagnostic or therapeutic procedure. See, e.g., 

Ngo, 136 Hawaiʻi at 69, 358 P.3d at 41 (determining that, in 

proving a violation of HRS § 671-3(b)(5)(A), a plaintiff must 

present evidence “to establish prima facie that the risk of harm 

to which the plaintiff was subjected is an undisclosed 

‘recognized material risk[] of serious complications or 

mortality associated with . . . [t]he proposed treatment or 

procedure’”). 

 In this case, Garcia asserted in his Complaint that 

Dr. Robinson failed to properly inform him of the risks involved 

with the surgery and misrepresented the lack of risk involved. 

He stated that Dr. Robinson told him that the type of surgery to 
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be performed had a ninety-percent success rate, that he would be 

“dancing in a couple of days” after the surgery, and that he 

would be pain free. Although Garcia did not specify in his 

Complaint that his claim of negligent failure to obtain informed 

consent was based upon a violation of HRS § 671-3(b)(5)(A), the 

allegations in the Complaint clearly implicate this provision,6

which requires that a physician disclose the “recognized 

material risks of serious complications or mortality associated 

with . . . [t]he proposed treatment or procedure.” HRS § 671-

3(b)(5)(A); see Ngo, 136 Hawaiʻi at 70-71, 358 P.3d at 42-43 

(finding that the plaintiffs did not waive additional lack of 

informed consent claims for failing to assert in the complaint 

the specific statutory provisions upon which their claim was 

based because the allegations clearly implicated a physician’s 

duty of disclosure under HRS § 671-3(b)). Accordingly, under 

HRS § 671-3(b)(5)(A), Garcia was required to provide evidence 

that the risks to which he was subjected, namely a worsened 

condition and increased pain, were “recognized material risks of 

serious complications or mortality . . . associated with [t]he 

proposed treatment or procedure.” 

 6

 In his Opening Brief, Garcia identified that his claim was based 

upon HRS § 671-3(b)(5)(A). 
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 At the summary judgment hearing, the circuit court 

concluded that in order to establish a prima facie informed 

consent claim, Garcia was required to establish the materiality 

of the alleged risk by providing expert medical testimony as to 

the four common law materiality factors: (1) the nature of the 

risks inherent in a particular treatment; (2) the probabilities 

of therapeutic success; (3) the frequency of the occurrence of 

particular risks; and (4) the nature of available alternatives 

to treatment. Because Garcia lacked expert testimony as to the 

third and fourth materiality factors, the circuit court held 

that Garcia did not establish the materiality of the alleged 

risk and consequently his claim failed. The circuit court thus 

granted summary judgment in favor of Dr. Robinson. On appeal, 

the ICA affirmed the circuit court’s reasoning and Judgment. 

 However, under HRS § 671-3(b), a plaintiff is not 

required to provide evidence pertaining to the four common law 

materiality factors in order to establish a prima facie 

violation of a physician’s duty based upon a particular 

subsection of HRS § 671-3(b). The evidentiary requirements for 

an informed consent claim based on a violation of a specific 

provision of HRS § 671-3(b) have been addressed in two recent 

opinions of this court. 
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 In Ngo, we analyzed the plaintiffs’ informed consent 

claim under HRS § 671-3(b)(5) and considered whether the 

plaintiffs satisfied their evidentiary burden of showing a prima 

facie violation of the defendant physician’s statutory duty of 

disclosure. In that case, the plaintiffs’ minor child died 

after the defendant physician treated her for nausea and 

vomiting with an antiemetic medication. Ngo, 136 Hawaiʻi at 57, 

358 P.3d at 29. The plaintiffs asserted a claim of negligent 

failure to obtain informed consent based on the undisputed fact 

that the treating physician did not give the plaintiffs any 

information about the drug used to treat their minor child and 

its risks and side effects and did not provide any information 

regarding alternative treatments. Id. at 57-58, 69-70, 358 P.3d 

at 29-30, 41-42. The circuit court granted summary judgment in 

favor of the defendants, which the ICA affirmed on appeal. Id. 

at 57, 358 P.3d at 29. The ICA concluded that the plaintiffs 

did not meet their evidentiary burden with regard to proving the 

“materiality of the risk of harm” because they failed to adduce 

expert medical testimony as to all four materiality factors. 

Id. 

 This court disagreed with the analysis of the ICA. We 

did not apply the four common law materiality factors in 

analyzing the plaintiffs’ claim of negligent failure to obtain 
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informed consent based on an alleged violation of HRS § 671-

3(b)(5)(A), which requires disclosure of the “recognized 

material risks of serious complication or mortality . . . 

associated with the proposed treatment or procedure.” Id. at 

67-70, 358 P.3d at 39-42. Instead, this court applied the 

criteria set forth in the statute to determine whether the 

plaintiffs satisfied their evidentiary burden to prove a prima 

facie violation of the defendant physician’s statutory duty of 

disclosure under HRS § 671-3(b)(5)(A). Id. at 68-69, 358 P.3d 

at 40-41. Thus, we concluded that the plaintiffs adduced 

sufficient expert testimony to establish prima facie that the 

risk of harm that resulted was a “recognized material risk[] of 

serious complication or mortality.” Id. at 69-70, 358 P.3d at 

41-42. 

 In applying this analysis, the Ngo court noted that 

one of the materiality factors, the probabilities of therapeutic 

success, while not part of an informed consent claim based on an 

alleged HRS § 671-3(b)(5)(A) violation, was information required 

to be provided for a claim under HRS § 671-3(b)(3), the intended 

and anticipated results of the proposed treatment or procedure. 

Id. at 71, 358 P.3d at 43. In analyzing the HRS § 671-3(b)(3) 

claim, the court applied a single materiality factor because 

that factor coincided with the requirements of the statutory 
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provision upon which the claim was based. Id. That is, 

“disclosure of the probabilities of therapeutic success 

intended” as required by the statute is essentially equivalent 

to the common law formulation of the “anticipated results of the 

proposed treatment or procedure.” 

 In Ray, this court reviewed the plaintiffs’ claim of 

negligent failure to obtain informed consent under HRS § 671-

3(b)(4), which requires the physician to inform the patient of 

the recognized alternative treatments or procedures, including 

the option of not providing these treatments or procedures. The 

court considered whether the defendant physician had a statutory 

duty to disclose alternative dosages of the same medication 

under HRS § 671-3(b)(4). Ray, 125 Hawaiʻi at 265-68, 259 P.3d at 

581-84. Although the court mentioned the four materiality 

factors, the court did not apply them to the facts of the case. 

Id. at 268, 259 P.3d at 584. Instead, the court observed that 

requiring the disclosure of alternative doses would not 

“overwhelm” healthcare providers, as the defendant contended, 

because a plaintiff would need to show that an alternative dose 

is a “recognized alternative treatment.” Id. at 268, 259 P.3d 

at 584. That is, the court noted that one of the materiality 

factors, the nature of alternatives to treatment, coincides with 

the requirements for a claim under HRS § 671-3(b)(4) because the 
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wording of the statute (“recognized alternative treatments or 

procedures”) is essentially the same as that factor. Id. 

 In light of the express statutory provisions of 

HRS § 671-3(b),7 the common law materiality factors do not apply 

to a claim of negligent failure to obtain informed consent, and 

the circuit court and the ICA erred in relying upon them instead 

of on the statute. Although it is not erroneous for a court to 

apply a materiality factor when that factor is identical to the 

statutory requirements, HRS § 671-3(b) governs the analysis, and 

it is error to require evidence upon a materiality factor when 

that factor does not coincide with the requirement of the 

applicable subsection of HRS § 671-3(b). Consequently, Dr. 

Robinson was not entitled to judgment as a matter of law based 

on lack of expert testimony as to the common law materiality 

factors. 

B. Sufficiency of Evidence to Support a Prima Facie Claim 

 In reviewing the circuit court’s award of summary 

judgment, we apply the same standard as the circuit court. 

Thomas v. Kidani, 126 Hawaiʻi 125, 127-28, 267 P.3d 1230, 1232-33 

 7

 For an overview of the evolution of the informed consent 

doctrine, including the “interplay between the common law and [HRS § 671-

3(b)],” see Ngo v. Queen’s Med. Ctr., 136 Hawaiʻi 54, 63-68, 358 P.3d 26, 34-

40 (2015). Ngo indicates that the common law formulation of the materiality 

factors has been supplanted by the statutory requirements under HRS § 671-

3(b). Id. 
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 24 

(2011). For a defendant physician to prevail on a motion for 

summary judgment upon a claim of negligent failure to obtain 

informed consent, “the pleadings, depositions, answers to 

interrogatories, and admission on file, together with the 

affidavits, if any, [must] show that there is no genuine issue 

as to any material fact and that the moving party is entitled to 

judgment as a matter of law.” Id. at 128, 267 P.3d at 1233 

(quoting Fujimoto v. Au, 95 Hawaiʻi 116, 136, 19 P.3d 699, 719 

(2001)). The defendant physician bears the burden of 

demonstrating there is no genuine issue as to any material fact 

with respect to the essential elements of the lack of informed 

consent claim. French v. Haw. Pizza Hut, Inc., 105 Hawaiʻi 462, 

470, 99 P.3d 1046, 1054 (2004). When the defendant physician 

satisfies this initial burden, then the burden shifts to the 

plaintiff to demonstrate “specific facts, as opposed to general 

allegations, that present a genuine issue worthy of trial.” See 

id. (emphasis omitted) (quoting GECC Fin. Corp. v. Jaffarian, 79 

Hawaiʻi 516, 521, 904 P.2d 530, 535 (App. 1995)). 

 Dr. Robinson maintains that he was entitled to summary 

judgment as a matter of law on the informed consent claim in 

this case because Garcia failed to adduce sufficient expert 

testimony to proceed upon his claim under HRS § 671-3(b)(5). 

Under this subsection, Garcia was required to establish that 
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increased pain and a worsened condition were “recognized 

material risks of serious complications” associated with the 

back surgery performed. See Ngo, 136 Hawaiʻi at 67-68, 358 P.3d 

at 39-40. 

 Although expert testimony is not required under 

HRS § 671-3(b), “expert testimony is typically necessary to 

establish the medical information statutorily required to be 

disclosed.” Id. at 69, 358 P.3d at 41. In appropriate cases, a 

defendant physician, by his or her own testimony, may satisfy 

the plaintiff’s evidentiary burden. See id. at 71, 358 P.3d at 

43 (recognizing that plaintiffs’ counsel elicited valid expert 

testimony from the defendant-physician regarding recognized 

alternative treatments); Carr v. Strode, 79 Hawaiʻi 475, 487, 904 

P.2d 489, 501 (1995) (citing Nishi v. Hartwell, 52 Haw. 188, 

196-97, 473 P.2d 116, 121 (1970)) (stating that a defendantphysician’s testimony may satisfy the plaintiff’s evidentiary 

burden). 

 At his deposition, Dr. Robinson testified that he 

discusses the same list of risks with every patient in addition 

to others depending on the situation and specifically advised 

Garcia of surgical risks associated with the proposed procedure, 

including allergy, hemorrhage, infection, technical problems, 

paralysis, failure of surgery to be beneficial, and even death. 
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 26 

Additionally, he related that he discusses the risk of increased 

pain with every patient because there is a risk that patients 

undergoing this type of back surgery might experience further 

pain. Further, he testified that he tells every patient about 

potential technical problems and explains that “surgery is a 

very involved complex production of treatment and there are some 

things that can go wrong.” He also stated that this type of 

surgery “is one of the most painful experiences that patients 

undergo in surgery” and takes time to fully recover. Based on 

these statements, Dr. Robinson indicated that increased pain and 

a worsened condition were “recognized material risks of serious 

complications” associated with the surgery. Accordingly, Garcia 

provided sufficient medical evidence, through Dr. Robinson’s 

deposition testimony, that increased pain and a worsened 

condition were “recognized material risks of serious 

complications” of the back surgery performed, and thus this was 

information required to be disclosed under HRS § 671-3(b)(5)(A). 

 Whether Dr. Robinson accurately disclosed these 

“material risks of serious complications” associated with the 

surgery was disputed. Garcia contends that Dr. Robinson told 

him (1) the proposed back surgery had a ninety-percent success 

rate, (2) Garcia would be “up and dancing” in a few days, and 

(3) Garcia would be pain free. By contrast, Dr. Robinson 
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 27 

maintains that (1) he does not discuss percentages with 

patients, (2) he does not recall discussing with Garcia that he 

would be “up and dancing” after the procedure, although it would 

be “preposterous” to tell a patient that he or she would be 

“dancing three days after lumbar spine surgery,” and (3) he 

denied “unequivocally” that he told Garcia that he would have no 

further pain. 

 Viewing the evidence and inferences in the light most 

favorable to Garcia, there is a disputed genuine issue of 

material fact as to whether Dr. Robinson accurately disclosed 

the “recognized material risks of serious complications” 

associated with the procedure performed. Consequently, we hold 

that the circuit court and the ICA erred in concluding that Dr. 

Robinson was entitled to judgment as a matter of law on Garcia’s 

claim of negligent failure to obtain informed consent under 

HRS § 671-3(b)(5)(A). 

IV. CONCLUSION 

 For the foregoing reasons, we vacate in part the ICA’s 

June 29, 2015 Judgment on Appeal and the circuit court’s 

Judgment as to the claim of negligent failure to obtain informed 

consent and remand the case to the circuit court for further 
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 28 

proceedings consistent with this opinion.8 We otherwise affirm 

the ICA’s June 29, 2015 Judgment on Appeal and the circuit 

court’s Judgment. 

Michael P. Healy and 

Charles H. Brower 

for petitioner 

Thomas E. Cook and 

Edquon Lee 

for respondent 

/s/ Mark E. Recktenwald 

/s/ Paula A. Nakayama 

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack 

/s/ Michael D. Wilson 

 8

 In granting Dr. Robinson’s MSJ, the circuit court did not address 

Dr. Robinson’s contention as to a lack of showing of causation in its oral 

ruling or written order. On remand, this issue may be further addressed as 

appropriate.