## Facts

- Dr. Paul T. Nishi consulted Dr. Alfred S. Hartwell for chest pain; Hartwell suspected an aneurysm and recommended thoracic aortography after consulting Dr. Niall M. Scully.
- Thoracic aortography involved catheterization through an inguinal artery and injection of radio-opaque contrast medium to visualize the aorta by X-ray.
- Dr. and Mrs. Nishi signed a written consent; the procedure was performed by Dr. Scully with conceded professional skill.
- After the procedure, Dr. Nishi became paralyzed from the waist down and lost bowel and bladder control.
- The paralysis was admitted to have occurred as a side effect of Urokon, the contrast medium used.
- Both physicians knew paralysis was a possible but rare complication and did not disclose that risk to Dr. Nishi before the procedure.
- The doctors testified they withheld disclosure because Dr. Nishi was highly apprehensive and they believed mentioning a remote paralysis risk might cause him to refuse a test they considered necessary and potentially life-saving.
- Plaintiffs sued for malpractice, arguing nondisclosure negated consent and made the procedure a battery; alternatively, they argued the doctors at least should have informed Mrs. Nishi.
- Dr. Nishi died during the litigation; Frances T. Nishi continued as executrix and pursued her own consortium claim.

## Issues

1. Whether failure to disclose a known but remote risk of paralysis from a properly performed diagnostic procedure creates liability, and whether the theory sounds in battery or negligence.
2. Whether a physician may withhold disclosure of a serious but infrequent risk under a therapeutic privilege when disclosure is believed medically contraindicated for a highly anxious patient.
3. Whether, if disclosure is withheld from the patient, the physicians have a duty to disclose the risk to the patient’s spouse.

## Decision

- The Hawaii Supreme Court affirmed the judgment dismissing the action at the close of plaintiffs’ evidence.
- The court held the plaintiffs failed to show actionable malpractice based on nondisclosure of the remote paralysis risk under the circumstances presented.
- The court treated the nondisclosure claim as a negligence question rather than battery where the procedure performed was the one authorized and no substantially different procedure was shown.
- The court accepted a limited therapeutic privilege permitting nondisclosure when the physician reasonably believes disclosure would be detrimental to the patient’s care and best interests.
- The court rejected an independent duty to inform the spouse in lieu of informing the patient.

## Legal Principles

- When the patient consents to the procedure performed, complaints about inadequate risk disclosure generally sound in negligence rather than battery, absent proof the procedure was substantially different from what was authorized.
- A physician may, in limited circumstances, withhold disclosure of certain risks if the physician reasonably concludes disclosure would be medically contraindicated and harmful to the patient’s care and best interests (therapeutic privilege).
- The remoteness of a risk and the absence of proof that the prevailing professional standard required disclosure may defeat an informed-consent negligence claim.
- A physician’s duty to disclose material information ordinarily runs to the patient, not to the patient’s spouse, absent incapacity or a special legal relationship.

## Conclusion

The court upheld dismissal because plaintiffs did not prove that nondisclosure of a rare paralysis risk violated the applicable standard of care, and the physicians’ decision to withhold the risk from an apprehensive patient fell within a recognized therapeutic privilege; the claim was not a battery, and no separate duty to warn the spouse applied.


Nishi v. Hartwell, 473 P.2d 116 (Haw. 1970)