Flores v. Liu ( 2021 )

Filed 1/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JENNY FLORES et al., B301731
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC629177)
v.
CARSON D. LIU,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Barbara A. Meiers, Judge. Affirmed.
Arias & Lockwood, Christopher D. Lockwood; Law Offices
of Patricia A. Law and Patricia A. Law for Plaintiffs and
Appellants.
Horvitz & Levy, Mark A. Kressel, Shane H. McKenzie;
Neil, Dymott, Frank, McCabe & Hudson, Hugh A. McCabe and
Dane J. Bitterlin for Defendant and Respondent.
******
A surgeon competently performed a gastric re-sleeving
surgery on a woman. She subsequently sued him for negligence
in recommending gastric re-sleeve surgery as a viable course of
treatment and in not obtaining her informed consent to the
surgery. This appeal presents two questions: (1) when can a
physician be sued for negligently recommending a course of
treatment, and (2) does the patient’s informed consent negate any
liability for a negligent recommendation? On the first question,
we hold that a physician may be liable for negligently
recommending a course of treatment if (1) that course stems from
a misdiagnosis of the patient’s underlying medical condition, or
(2) all reasonable physicians in the relevant medical community
would agree that the probable risks of that treatment outweigh
its probable benefits. On the second question, we hold that a
patient’s informed consent to a negligently recommended course
of treatment does not negate the physician’s liability for his
negligence in recommending it. Although the trial court in this
case erred by instructing the jury that the woman’s informed
consent negated any liability for the surgeon’s recommendation,
this error did not prejudice the woman’s case because her
negligent recommendation theory should never have gone to the
jury in the first place. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Plaintiff’s initial condition
In 2011, Jenny Flores (plaintiff) was 33 years old. At a
height of 5 feet 2 inches tall and a weight of 315 pounds, she
suffered from morbid obesity. By that time, her efforts to lose
weight through diet alone had failed.
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B. Medical consultation and surgeries
1. Consultation
In July 2011, plaintiff consulted with Dr. Carson Liu (Dr.
Liu), a leading and experienced bariatric surgeon, about
surgeries that might assist her with her weight loss efforts.
Consistent with his “multi-disciplinary approach” to bariatric
medicine, Dr. Liu did a full medical work-up of plaintiff’s
condition and also referred her to a psychologist and a
nutritionist.
Based on this interdisciplinary work-up, Dr. Liu correctly
diagnosed plaintiff as suffering from morbid obesity due to
overeating rather than any psychological issue or any
physiological, hormonal imbalance. He presented plaintiff with
three surgery options: (1) gastric lap band surgery, which entails
inserting a ring around the patient’s stomach that can be cinched
tighter to limit stomach capacity and thus decrease hunger, (2)
gastric sleeve surgery, which entails removing a portion of the
patient’s stomach to make it smaller, and (3) gastric bypass
surgery, which entails creating a small pouch from the patient’s
existing stomach and connecting the new pouch to the small
intestine.
2. Gastric lap band surgery
Because plaintiff categorically refused to consider gastric
bypass surgery, Dr. Liu explained—orally and in writing—the
risks of the gastric lap band surgery, which included “leakage,”
“bleeding” and “infection.” Dr. Liu also explained—again, orally
and in writing—that the gastric lap band surgery would only
“help with diet” and that weight loss would follow only if plaintiff
herself made efforts to keep her “dietary intake” “[a]ppropriate”
and to “exercise.” (Italics added.) Plaintiff opted for the gastric
3
lap band surgery and signed a patient consent form in which she
consented to that surgery.
On August 15, 2011, Dr. Liu performed the gastric lap band
surgery on plaintiff.
In the 16 months immediately following the surgery, and
after a number of office visits to adjust the band, plaintiff was
able to regulate her diet and lost a total of 73 pounds. When
plaintiff lost her job in August 2013, however, she was put under
stress, her healthier eating habits faltered, and she started to re-
gain weight.
3. Gastric sleeve surgery
In August 2013, plaintiff contacted Dr. Liu about having
him perform gastric sleeve surgery on her. Dr. Liu did not refer
plaintiff a second time to either a nutritionist or a psychologist
because Dr. Liu and his staff had been meeting with plaintiff
during all of her office visits, and those visits included “dietary
consult[s].”
Dr. Liu orally explained the nature of the surgery as well
as the possible risks, which included “staple line leakage,
. . . bleeding, infection, and a small possibility of death.” In Dr.
Liu’s experience, the risk of these complications was
approximately 5 percent. Plaintiff agreed to the surgery and
signed a patient consent form.
On August 29, 2014, Dr. Liu removed the lap band and
performed the gastric sleeve surgery on plaintiff.
In the months following the surgery, plaintiff lost some
weight. By July 2015, however, plaintiff was “non-compliant”
with her diet and had re-gained weight.
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4. Gastric re-sleeve surgery
In July 2015, plaintiff contacted Dr. Liu about further
options to help her with her weight loss and Dr. Liu indicated
that gastric re-sleeve surgery might be appropriate. To assess
how plaintiff was able to re-gain weight even after the gastric
sleeve surgery had reduced the size of her stomach, Dr. Liu
conducted a “swallow test” and, from that test, confirmed his
suspicion that there had been an “anatomic failure of the sleeve”
that had allowed plaintiff’s stomach to stretch from the size of a
small banana back to the size of an eggplant. This was unusual,
as Dr. Liu had performed 700 gastric sleeve surgeries but only 45
re-sleeve surgeries. However, in light of the results of the
“swallow test,” Dr. Liu recommended gastric re-sleeve surgery to
remove a further portion of plaintiff’s stomach. Because Dr. Liu
had been treating plaintiff, he did not refer her out to a
psychologist or nutritionist.
Dr. Liu orally explained that the risks of a gastric re-sleeve
surgery were “the same” as the risks of a gastric sleeve surgery.
Both surgeries carried a risk of complications, including “staple
line leakage.” Based on the literature at the time, Dr. Liu
understood the statistical likelihood of the risk of complications
to be the same for initial sleeve surgery and re-sleeve surgery—
that is, 5 percent. Plaintiff agreed to the surgery and signed a
patient consent form.
On August 10, 2015, Dr. Liu performed the gastric re-
sleeve surgery on plaintiff. The surgery was performed
competently.
Notwithstanding the competently performed surgery, the
day after the surgery, one of the staple lines leaked material from
plaintiff’s gastroesophageal junction into plaintiff’s abdominal
5
cavity, which caused sepsis, respiratory failure, and acute renal
failure. Plaintiff spent several weeks in a hospital recovering.
II. Procedural Background
A. Pleadings
On August 9, 2016, plaintiff and her husband sued Dr. Liu
for (1) negligence, and (2) loss of consortium.1
B. Trial
1. Plaintiff’s two theories of negligence
In both her opening statement and closing argument at
trial, plaintiff argued that Dr. Liu was negligent on two theories:
(1) he was negligent for recommending gastric re-sleeve surgery
because she had “zero chance” of achieving weight loss success
with that surgery given her prior failures to lose weight with the
gastric lap band and initial gastric sleeve surgeries, such that no
reasonable “bariatric surgeon” would have recommended re-
sleeve surgery, and (2) he was negligent for not obtaining her
informed consent to the gastric re-sleeve surgery.
2. Expert testimony
a. Plaintiff’s expert
Plaintiff’s expert was a bariatric surgeon.
He opined that Dr. Liu was negligent for recommending
gastric re-sleeve surgery for plaintiff. He did not opine that the
surgery was categorically unwarranted, as he had performed
gastric re-sleeve surgeries twice before and noted that the
procedure had some—but not “a lot”—“of data behind it at this
1 Plaintiff also sued Dr. Liu’s private medical practice, the
anesthesiologist, the hospital where plaintiff was treated for the
complications from the gastric re-sleeve surgery, and two of the
doctors from that hospital. The trial court subsequently
dismissed those defendants on summary judgment.
6
point.” The expert nevertheless opined that Dr. Liu was
negligent for recommending gastric re-sleeve surgery for plaintiff
because (1) Dr. Liu did not conduct a completely new multi-
disciplinary work-up, as he claimed a “majority” of bariatric
surgeons would have done, and (2) the probable benefits of the re-
sleeve surgery were eclipsed by the probable risks. Regarding
the second reason, the expert noted that gastric re-sleeve surgery
had no probable benefit for plaintiff because it had little chance of
success of enabling her to lose weight given her prior failures to
adhere to a dietary and exercise regimen. Conversely, the expert
opined that gastric re-sleeve surgery had a risk of “complications”
that was “sometimes five or ten times higher” than for gastric
sleeve surgery.
Plaintiff’s expert also opined that Dr. Liu had not obtained
plaintiff’s informed consent to the gastric re-sleeve surgery
because the surgery was “more risky than the first time
operation,” yet Dr. Liu told her that the risk of leakage for both
surgeries was the same.
b. Dr. Liu’s expert
Dr. Liu’s expert was also a bariatric surgeon.
He opined that Dr. Liu acted reasonably in recommending
the gastric re-sleeve surgery for plaintiff. Like plaintiff’s expert,
he opined that gastric re-sleeve surgery is sometimes warranted,
and he had also performed this surgery in his practice. The
expert further opined that the surgery was appropriate in this
case because (1) no further work-up from a psychologist or
dietitian was required in the absence of any “contraindications”
warranting further study, and none appeared here, and (2)
reasonable bariatric surgeons could conclude that the probable
benefits of the surgery outweighed the probable risks.
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Regarding plaintiff’s informed consent, Dr. Liu’s expert
agreed with plaintiff’s expert that the risk of complications from
a re-sleeve is about 10 times higher than for initial sleeve
surgeries, but further explained that the risk of complications
went from 0.5 percent (for the initial sleeve surgery) to 5 percent
(for the re-sleeve surgery).
3. Jury instructions
The trial court instructed the jury on both theories of
negligence advanced by plaintiff—namely, that Dr. Liu was liable
for negligence if (1) “he fail[ed] to use the level of skill,
knowledge, and care” in recommending gastric re-sleeve surgery
“that other reasonably careful surgeons would use in similar
circumstances,” or (2) he did not “give” plaintiff “as much
information” as “a reasonable person would consider important in
deciding to” have gastric re-sleeve surgery.
4. Jury note and response
During deliberations, the jury sent out the following note:
“Is the plaintiff required to prove both medical
negligence and failure to obtain informed consent, or is
the plaintiff only required to prove one claim?”
After ruling that “an adequate [informed] consent is going
to cut off liability for an erroneous recommendation,” the court
gave the jury a supplemental instruction. As pertinent here, the
court instructed that:
“If your finding is that Dr. Liu was medically
negligent in the course of treatment and the
recommendation that he made that [plaintiff] have
th[e] [gastric re-sleeve] surgery, he would not be
liable for that negligent error [on] his part if she gave
a fully informed consent . . . .”
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5. Verdict
Within hours of receiving the supplemental instruction, the
jury returned an 11-1 verdict finding that Dr. Liu was “not
negligent.”
C. Judgment and appeal
Following the entry of judgment, plaintiff filed this timely
appeal.
DISCUSSION
Plaintiff argues that the trial court’s supplemental
instruction was incorrect because a patient’s informed consent in
agreeing to a recommended course of treatment does not cut off
liability for negligently recommending that treatment in the first
place. Trial courts are duty-bound to give supplemental
instructions if additional guidance is necessary to give the jury “‘a
full and complete understanding of the law applicable to the
facts’” (Code Civ. Proc., § 614; Bartosh v. Banning (1967) 251
Cal.App.2d 378, 387; Eng v. Brown (2018) 21 Cal.App.5th 675,
706, fn. 9), but those supplemental instructions—like all jury
instructions—must correctly convey the law (People v. Romero
(2008) 44 Cal.4th 386, 425; People v. Alexander (2010) 49 Cal.4th
846, 931). We must therefore ask two questions: (1) was the trial
court’s supplemental instruction correct, and if not, (2) has
plaintiff established a reasonable probability that the incorrect
instruction prejudiced her case? (Pool v. City of Oakland (1986)
42 Cal.3d 1051, 1069; Morales v. 22nd Dist. Agricultural Assn.
(2016) 1 Cal.App.5th 504, 524-525 (Morales); see generally Cal.
Const., art VI, § 13.) Our review of each question is de novo.
(People v. Mitchell (2019) 7 Cal.5th 561, 579 [instructional error];
Morales, at pp. 524-525 [prejudice].)
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I. Does a Patient’s Informed Consent to a Course of
Treatment Insulate a Physician from Liability for
Negligently Recommending that Treatment?
A. A physician’s liability for negligence
Like any plaintiff suing for negligence, a patient suing her
physician for negligence must establish that (1) the physician
owed her a duty, (2) he breached that duty, (3) there was “a
proximate causal connection between [his] negligent conduct and
the resulting injury,” and (4) “actual loss or damage resulting
from the [physician’s] negligence.” (Burgess v. Superior Court
(1992) 2 Cal.4th 1064, 1082 (Burgess); Budd v. Nixen (1971) 6
Cal.3d 195, 200 (Budd), superseded on other grounds by Code
Civ. Proc., § 340.6; see generally Kesner v. Superior Court (2016)
1 Cal.5th 1132, 1158 [elements of negligence, generally].)
This case turns on the interrelationship between two duties
of a physician—namely, a physician’s duty of care and a
physician’s duty to obtain his patient’s informed consent to
medical procedures. The existence and scope of these duties
present questions of law subject to our independent review.
(Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083
(Vasilenko).)
1. The physician’s duty of care
“Civil Code section 1714, subdivision (a) ‘establishes the
general duty of each person to exercise, in his or her activities,
reasonable care for the safety of others.’” (Vasilenko, supra, 3
Cal.5th at p. 1083, quoting Civ. Code, § 1714, subd. (a);
Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 837.) When
applied to physicians, this duty of care imposes a duty “to use
such skill, prudence and diligence as other members of his
profession commonly possess and exercise.” (Burgess, supra, 2
Cal.4th at p. 1077; Turpin v. Sortini (1982) 31 Cal.3d 220, 229;
10
Budd, supra, 6 Cal.3d at p. 200.) As pertinent here, this duty of
care applies not only to the physician’s “actual performance or
administration of treatment,” but also to his “choice” of which
courses of treatment to recommend (or not recommend) to a
patient. (Rainer v. Community Memorial Hosp. (1971) 18
Cal.App.3d 240, 260 (Rainer) [“negligence in choice of methods of
treatment” is actionable]; Vandi v. Permanente Medical Group,
Inc. (1992) 7 Cal.App.4th 1064, 1069-1071 (Vandi) [“failure to
recommend a procedure must be addressed under ordinary
medical negligence standards”]; Atkins v. Strayhorn (1990) 223
Cal.App.3d 1380, 1388 [same]; Jamison v. Lindsay (1980) 108
Cal.App.3d 223, 231 [same]; Schiff v. Prados (2001) 92
Cal.App.4th 692, 701 (Schiff) [same].)
A physician violates his duty of care to a patient if he
recommends a course of treatment (1) when the recommended
treatment rests on the physician’s misdiagnosis of the patient’s
condition (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1168-
1169 (Jameson) [physician negligent for recommending injections
that, under proper diagnosis of patient’s condition, were
unnecessary]; Tortorella v. Castro (2006) 140 Cal.App.4th 1, 3-6,
11 [physician negligent for recommending surgery that, under
proper reading of MRI, was unnecessary]; Keen v. Prisinzano
(1972) 23 Cal.App.3d 275, 281 [physician negligent for
recommending casting that, under proper reading of X-ray, was
better treated by pinning]), or (2) when the recommended
treatment, even if based on a correct diagnosis, is one that no
reasonable physician using such skill, prudence and diligence as
other members of the relevant medical community would have
recommended (McCurdy v. Hatfield (1947) 30 Cal.2d 492, 495
11
(McCurdy); Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343
(Mathis); Carrasco v. Bankoff (1963) 220 Cal.App.2d 230, 240).
The “no reasonable physician” standard flows from the
nature of medical knowledge. “Medicine is not a field of
absolutes” (Mathis, supra, 11 Cal.App.4th at p. 342), so “different
doctors may disagree in good faith upon what would encompass
the proper treatment . . . of a medical problem in a given
situation” (Barton v. Owen (1977) 71 Cal.App.3d 484, 501-502).
Because “[a] difference of medical opinion concerning the
desirability of one particular medical procedure over another does
not . . . establish that the determination to use”—or to
recommend—“one of the procedures [is] negligent” (Clemens v.
Regents of University of Cal. (1970) 8 Cal.App.3d 1, 13; Mathis, at
p. 343 [“the mere fact that there is a disagreement within the
relevant medical community does not establish that the selection
of one procedure as opposed to the other constitutes ordinary
medical negligence”]; Meier v. Ross General Hospital (1968) 69
Cal.2d 420, 434 [“correct[]” “rule” is that physician’s choice of “one
of alternative accepted methods of treatment” is not “negligent”
even if “other physicians disagree”]; Rainer, supra, 18 Cal.App.3d
at p. 260, fn. 22; cf. N.N.V. v. American Assn. of Blood Banks
(1999) 75 Cal.App.4th 1358, 1393 [where “no[]” agency
“recommend[s]” treatment, negligence]; Mettias v. United States
(D. Haw. Apr. 21, 2015) 2015 U.S. Dist. LEXIS 52160, *83-*84
[negligence to recommend bariatric surgery to patient whose
body mass index was too low for that surgical option]; Sim v.
Weeks (1935) 7 Cal.App.2d 28, 37-38 [although recommendation
followed by a “respectable minority” of physicians is not negligent,
physician does not escape liability by proffering unreasonable
physicians willing to recommend treatment], italics added;
12
accord, Hubbard v. Calvin (1978) 83 Cal.App.3d 529, 532-534
[error to instruct jury that a physician is negligent unless a
“respectable minority” of physicians would agree with his
conduct]), a physician is negligent for recommending a course of
treatment only when no reasonable physician in the relevant
medical community would do so. (Accord, Ross v. Kish (2006) 145
Cal.App.4th 188, 202 [party liable for malicious prosecution of
lawsuit only if “no reasonable attorney” would have
recommended litigation]; Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 817 [same], superseded by statute on other
grounds as stated in Hart v. Darwish (2017) 12 Cal.App.5th 218,
227.)
Because, as noted above, the duty of care for recommending
courses of treatment is pegged to what reasonable physicians
using such skill, prudence and diligence as other members in the
relevant medical community would do, whether that duty was
breached “‘in a particular case is generally a question for
experts’” except where “‘the matter . . . is . . . within the common
knowledge of laymen.’ [citation.]” (Huffman v. Lindquist (1951)
37 Cal.2d 465, 473, quoting Trindle v. Wheeler (1943) 23 Cal.2d
330, 333; Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844;
Flowers v. Torrance Memorial Hospital Medical Center (1994) 8
Cal.4th 992, 1001.)
2. The physician’s duty to obtain the patient’s
informed consent
Because a patient relies upon her physician’s greater
medical knowledge when seeking medical treatment, the
physician has a fiduciary-like duty to obtain his patient’s
informed consent regarding which course of treatment to pursue.
(Cobbs v. Grant (1972) 8 Cal.3d 229, 240-242, 246 (Cobbs); Moore
v. Regents of University of California (1990) 51 Cal.3d 120, 129
13
(Moore); Jameson, supra, 215 Cal.App.4th at p. 1164; Mathis,
supra, 11 Cal.App.4th at p. 339.) A physician who fails to do so is
liable for negligence. (Cobbs, at pp. 240-241; Arato v. Avedon
(1993) 5 Cal.4th 1172, 1183 (Arato).) In imposing this duty, the
doctrine of informed consent “injects into the established
framework of negligence a concern with patient choice that would
otherwise be absent.” (Townsend v. Turk (1990) 218 Cal.App.3d
278, 284.)
To comply with the duty to obtain a patient’s informed
consent, a physician must “disclose to the patient all material
information—that is, ‘information which the physician knows or
should know would be regarded as significant by a reasonable
person in the patient’s position when deciding to accept or reject
a recommended medical procedure.’” (Arato, supra, 5 Cal.4th at
p. 1186, quoting BAJI No. 6.11; id. at p. 1175; Cobbs, supra, 8
Cal.3d at p. 245; Moore, supra, 51 Cal.3d at p. 129; Truman v.
Thomas (1980) 27 Cal.3d 285, 291 (Truman).) This standard
focuses on what an objective, reasonable “prudent person” in the
patient’s shoes would want to know, and is therefore not dictated
by whatever “custom” physicians in the relevant medical
community follow when making disclosures. (Cobbs, at pp. 243,
245; Spann v. Irwin Memorial Blood Centers (1995) 34
Cal.App.4th 644, 656 (Spann) [disclosure turns on what is
“material to the patient’s decision, regardless of the custom in the
profession”].)
When a physician recommends one or more courses of
treatment, the information that is “material” (and, hence, that
must be disclosed in order to obtain the patient’s informed
consent) falls into two categories—namely, (1) “minimal”
disclosures that are always material, and (2) “additional”
14
disclosures that might be material if “skilled practitioner[s] of
good standing” would “provide” those disclosures “under similar
circumstances.” (Cobbs, supra, 8 Cal.3d at pp. 244-245; Mathis,
supra, 11 Cal.App.4th at p. 343; Daum v. Spinecare Medical
Group (1997) 52 Cal.App.4th 1285, 1301-1302 (Daum).) The
minimal disclosures required in every case include (1) a
“reasonable explanation of the [recommended] procedure[(s)],” (2)
the “likelihood of success” of each recommended procedure, (3)
“the risks involved in accepting [and] rejecting [each] proposed
[procedure],” particularly the “potential of death or serious harm”
and “the complications that might possibly occur,” and (4) the
physician’s “personal interests” that may affect his judgment,
even if “unrelated to the patient’s health.” (Cobbs, at pp. 243-
245; Vandi, supra, 7 Cal.App.4th at p. 1069; Truman, supra, 27
Cal.3d at p. 292; Daum, at p. 1301; Arato, supra, 5 Cal.4th at p.
1184.) The “additional” disclosures that are not always required,
but may be required—depending on what “skilled practitioner[s]”
would do—in a particular case can include information on the
procedures the physician is not recommending. (Vandi, at p.
1071; Spann, supra, 34 Cal.App.4th at p. 658; Schiff, supra, 92
Cal.App.4th at p. 701; cf. Parris v. Sands (1993) 21 Cal.App.4th
187, 193 [no “general duty of disclosure concerning a treatment or
procedure a physician does not recommend”].) Because the focus
of informed consent is on what the reasonable patient needs to
know to make an intelligent choice among the available options, a
physician need not give the patient a “mini-course in medical
science” or a “lengthy polysyllabic discourse on all possible
complications” and their statistical probabilities (Cobbs, at p. 244;
Arato, at p. 1186), need not disclose information that is
“commonly appreciated” (Truman, at p. 291), and need not
15
disclose information regarding the non-medical effects of a
medical procedure (Arato, at pp. 1188-1189).
Because, as noted above, the duty to obtain informed
consent is pegged to what a “reasonable person” in the patient’s
position would deem to be “material” to her medical decision-
making (rather than being pegged to customs for disclosure in the
profession), the decision as to what information should be
disclosed is entrusted chiefly to the trier of fact, and not to
medical experts. (Arato, supra, 5 Cal.4th at p. 1186; Wilson v.
Merritt (2006) 142 Cal.App.4th 1125, 1134; Betterton v. Leichtling
(2002) 101 Cal.App.4th 749, 756 (Betterton).) Thus, when it
comes to liability for failing to obtain informed consent, expert
testimony has a more “limited and subsidiary role” (Arato, at p.
1191), and is typically relevant to establish what additional
information over and above minimal disclosures that reasonable
physicians in the relevant medical community would make to
their patients (ibid.; Betterton, at p. 756).
B. Does a Physician’s Compliance with the Duty to
Obtain Informed Consent Obviate Liability for Non-
Compliance with the Duty of Care in Recommending
Courses of Treatment?
The trial court erred in instructing the jury that Dr. Liu
would “not be liable” for “negligent[ly]” recommending the gastric
re-sleeve surgery “if [plaintiff] gave a fully informed consent.”
That is because a physician can be held liable for negligence in
recommending a course of treatment2 even if he obtains the
2 A physician’s negligent recommendation necessarily entails
implementing that recommendation; otherwise, there would be no
causal link between the recommendation and injury to the
plaintiff. Thus, plaintiff’s attempt to splice her medical
negligence claim even further on appeal by arguing that the
16
patient’s informed consent to that negligently recommended
course of treatment. We reach this conclusion for two reasons.
First, this conclusion is dictated by the disparity in medical
knowledge between the physician and the patient. (Cobbs, supra,
8 Cal.3d at p. 242.) Even if a physician discloses to a patient all
the pros and cons of a particular course of treatment, the patient
almost invariably lacks the medical knowledge to know whether
that course of treatment is a medically reasonable one or not.
Take an example: Dr. Feelbad’s full disclosure of the pros and
cons of ingesting Draino as a means of clearing a stomach
blockage does not render that recommended treatment any less
medically unsound. Just as a patron’s fully knowledgeable
selection of one entrée over another does not say anything about
which entrees should be on the menu in the first place, a patient’s
fully knowledgeable selection of a particular course of treatment
does not say anything about whether the physician was negligent
for recommending that course of treatment in the first place.
Second, this conclusion is strongly suggested by precedent.
In Valdez v. Percy (1950) 35 Cal.2d 338 (Valdez), our Supreme
Court held that a patient’s “prior consent” to a course of
treatment flowing from a misdiagnosis “did not relieve the
defendant from liability” for that misdiagnosis. (Id. at pp. 341-
343.) Valdez’s logic applies with equal force to all negligent
recommendations, regardless of whether they stem from
misdiagnosis. Dr. Liu cites Hooker v. Headley (Ga. Ct. App. 1989)
385 S.E.2d 732, 733 (Hooker), for the proposition that a patient’s
negligent recommendation theory encompasses both Dr. Liu’s
recommendation that plaintiff undergo the gastric re-sleeve
surgery and Dr. Liu’s consequent decision to perform the surgery
he recommended adds nothing to the analysis.
17
informed consent to a procedure can negate a doctor’s liability for
negligently recommending that procedure. Hooker appears to
support this proposition, but we decline to follow Hooker for the
reasons set forth above.
II. Did the Incorrect Supplemental Jury Instruction
Prejudice Plaintiff?
The trial court’s erroneous instruction told the jury that a
finding for Dr. Liu on informed consent would absolve him of any
liability for negligently recommending gastric re-sleeve surgery
in the first place. To assess whether that erroneous instruction
prejudicially affected plaintiff’s single claim for negligence that
was premised on both theories of liability, we must ask two
questions. First, we must ask whether a jury finding for Dr. Liu
on the informed consent theory is supported by substantial
evidence and otherwise unaffected by error. (Accord, Bresnahan
v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153 [general
verdict will not be disturbed if “‘a single one of’” “‘several counts
or issues . . . tried’” “‘is supported by substantial evidence’” and
“‘is unaffected by error’”]; David v. Hernandez (2014) 226
Cal.App.4th 578, 586 [same].) If the jury finding on the informed
consent theory is invalid as an evidentiary or legal matter, then a
“not negligent” verdict for Dr. Liu premised on the supersession
of that theory over the negligent recommendation theory would
also be invalid; reversal and remand would be required. Second,
and if the jury’s informed consent finding for Dr. Liu is valid, we
must ask whether the supplemental instruction that this finding
would absolve Dr. Liu of liability for negligently recommending
the gastric re-sleeve surgery tainted the jury’s evaluation of
plaintiff’s negligent recommendation theory.
18
A. Is the jury verdict on the informed consent
theory valid?
As noted above, a physician can be found liable for
negligence for failing to obtain a patient’s informed consent if (1)
the physician failed to “disclose to the patient all material
information—that is, ‘information which the physician knows or
should know would be regarded as significant by a reasonable
person in the [plaintiff-patient’s] position,’” and (2) that failure
proximately caused the plaintiff-patient harm. (Arato, supra, 5
Cal.4th at p. 1186; Burgess, supra, 2 Cal.4th at p. 1082.)
In evaluating the evidentiary validity of a jury’s verdict,
our task is merely to assess whether the record contains
“substantial evidence, contradicted or uncontradicted, which will
support” the verdict. (People v. Superior Court (Jones) (1998) 18
Cal.4th 667, 681.) In assessing the substantiality of the evidence,
we “review the record in the light most favorable to the” verdict,
resolve all conflicts in favor of the verdict, and draw all
reasonable inferences in favor of the verdict. (King v. State of
California (2015) 242 Cal.App.4th 265, 278-279.) Through this
prism, we may not reweigh the evidence (In re I.J. (2013) 56
Cal.4th 766, 773 [“‘“We do not reweigh the evidence or exercise
independent judgment”’”]) and the testimony of a single witness
can constitute substantial evidence (People v. Lewis (2001) 25
Cal.4th 610, 646).
Substantial evidence supports the jury’s verdict that Dr.
Liu disclosed to plaintiff all information that a reasonable person
in plaintiff’s position should know when making a decision
regarding gastric re-sleeving surgery. Specifically, Dr. Liu made
all of the pertinent “minimal” disclosures: He explained to her
what the gastric re-sleeve surgery entailed, disclosed to her that
success with weight loss would depend upon her renewed
19
dedication to diet and exercise, and disclosed to her that the
surgery carried with it a risk of “staple line leakage” or similar
complications that Dr. Liu believed to be only 5 percent likely.
Although Dr. Liu did not specifically inform plaintiff that the
likelihood of complications from the gastric re-sleeve surgery was
5 percent, the disclosure of statistical probabilities is not
invariably a prerequisite to informed consent. (Cobbs, supra, 8
Cal.3d at p. 244; Arato, supra, 5 Cal.4th at p. 1186.) And while
Dr. Liu testified that he believed the risk of complications to be
“the same” for both the initial gastric sleeve and the gastric re-
sleeve surgeries, this belief had no effect on the jury’s finding
that plaintiff gave informed consent because (1) both parties’
experts agreed that the risk of complications for gastric re-sleeve
surgery was, in fact, 5 percent (and, hence, that Dr. Liu’s
appraisal of the risk was correct), and (2) the statistical likelihood
of complications did not need to be disclosed anyway.3
Plaintiff proffers three reasons why the jury’s verdict that
Dr. Liu obtained her informed consent is invalid.
First, she contends that substantial evidence in the record
would support a verdict in her favor on this theory. We need not
evaluate whether this is true because this contention applies the
incorrect legal standard. Where, as here, it is the plaintiff
asserting on appeal that a defense verdict is not supported by the
3 If anything, Dr. Liu over-estimated the risk of complications
from the initial gastric sleeve surgery, given that both experts
testified that the risk of complications for an initial gastric sleeve
surgery was 0.5 percent while the risk for gastric re-sleeve
surgery was ten times greater and thus 5 percent. Dr. Liu’s over-
estimation of risk for the prior, initial sleeve surgery does not
undermine his accurate disclosure of risk for the re-sleeve
surgery at issue in this case.
20
evidence, it is the plaintiff’s burden to show on appeal that there
is no substantial evidence to support that defense verdict, and
not merely that substantial evidence would have supported a
verdict in her favor. (Lobo v. Tamco (2014) 230 Cal.App.4th 438,
442, fn. 2; Sonic Manufacturing Technologies, Inc. v. AAE
Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466; Agam v.
Gavra (2015) 236 Cal.App.4th 91, 108.) As explained above,
plaintiff has not carried this onerous burden.
Second, plaintiff points out two deficiencies in the proof.
She notes the patient consent form she filled out does not
automatically establish informed consent. This is true
(Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 116 [“a
signed form” is not “conclusive proof that informed consent was
given”]), but irrelevant because we must indulge the reasonable
inference that it constitutes informed consent in this case and
because Dr. Liu testified that he also had oral discussions with
plaintiff regarding the pros and cons of gastric re-sleeve surgery.
Plaintiff further observes that a physician must disclose (1) the
risks of a surgery, and (2) a separate “risk-benefit analysis.”
Once again, plaintiff is correct that the minimal disclosures
necessary to obtain informed consent include a “risk-benefit
analysis” insofar as the physician must disclose the “likelihood of
success” as well as the attendant risks (Cobbs, supra, 8 Cal.3d at
pp. 243-245; Vandi, supra, 7 Cal.App.4th at p. 1069; Truman,
supra, 27 Cal.3d at p. 292; Daum, supra, 52 Cal.App.4th at p.
1301; Arato, supra, 5 Cal.4th at p. 1184), but this observation is
of no moment because Dr. Liu did discuss what would be needed
for success as well as the risks. Because plaintiff’s likelihood of
success at weight loss was directly contingent upon plaintiff’s
volitional choices (and, in light of plaintiff’s concession that the
21
gastric re-sleeve surgery was performed competently, was solely
contingent upon her choices), Dr. Liu’s disclosure of what she
would need to do was sufficient to satisfy his disclosure
obligation; he was not required to estimate—or, as discussed
more fully below, to discount—how likely it was that she would
heed his advice.
Lastly, plaintiff suggests that the trial court wrongly placed
the burden on her to prove the lack of informed consent because,
in her view, informed consent is an affirmative defense that a
physician must prove. Plaintiff is wrong. Because she is the
plaintiff suing for negligence (Arato, supra, 5 Cal.4th at p. 1183
[informed consent is a theory of negligence]), she bears the
burden of proving the elements of every legal theory she proffers
in support of that negligence claim—including her informed
consent theory. (Evid. Code, § 500; Cobbs, supra, 8 Cal.3d at p.
245; Mathis, supra, 11 Cal.App.4th at p. 346; accord, CACI No.
533.) To be sure, there is language in Cobbs indicating that the
“burden of going forward with evidence of nondisclosure” rests
initially with the plaintiff but “shifts to the physician” “[o]nce
such evidence has been produced.” (Cobbs, at p. 245.) But the
“burden of going forward” is different from the “burden of proof,”
and the burden of proof always remains with the plaintiff.
(Mathis, at pp. 346-347.) Indeed, the only time the burden of
proof on informed consent shifts to the defendant-physician is
after the plaintiff has carried her burden of showing the
nondisclosure of material information and when the defendant-
physician is attempting to prove that “even though a reasonably
prudent person might not have undergone the procedure if
properly informed of the perils, this particular plaintiff still
22
would have consented to the procedure.” (Warren v. Schecter
(1997) 57 Cal.App.4th 1189, 1206, italics added.)
B. Did the supplemental instruction telling the
jury that plaintiff’s informed consent obviated Dr. Liu’s
liability on a negligent recommendation theory prejudice
plaintiff?
In assessing whether an erroneous supplemental jury
instruction was prejudicial, appellate courts ask whether,
without that error, a result more favorable to the appealing party
was reasonably probable. (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 574.) A more favorable result on a theory of liability
due to an error in jury instructions on that theory is not
reasonably probable if that theory should never have gone to the
jury in the first place. (E.g., California Shoppers, Inc. v. Royal
Globe Ins. Co. (1985) 175 Cal.App.3d 1, 35.) A theory of liability
should be kept from the jury—whether after opening statements
in a motion for nonsuit, after the close of evidence in a motion for
a directed verdict, or after the verdict in a motion for judgment
notwithstanding the verdict—only when the evidence, viewed in
the light most favorable to the plaintiff, is not “substantial”
enough to support a verdict in the plaintiff’s favor, such that
there is no “negligence as a matter of law.” (Hauter v. Zogarts
(1975) 14 Cal.3d 104, 110; Sweatman v. Department of Veterans
Affairs (2001) 25 Cal.4th 62, 68; Parker v. James E. Granger, Inc.
(1935) 4 Cal.2d 668, 678; People v. Severance (2006) 138
Cal.App.4th 305, 319-320; Rotman v. Maclin Markets, Inc. (1994)
24 Cal.App.4th 1709, 1712-1713; accord, Morales, supra, 1
Cal.App.5th at p. 525 [assessing prejudice arising from an
erroneous jury instruction by “view[ing] the evidence in the light
most favorable to the losing party”].)
23
As noted above, a physician can be found liable for
negligently recommending a course of treatment if (1) his
recommendation is based on a misdiagnosis of the plaintiff’s
medical condition, or (2) his recommendation, even if based on an
accurate diagnosis, is one that no reasonable physician using
such skill, prudence and diligence as other members of the
relevant medical community would recommend for the plaintiff.
(Jameson, supra, 215 Cal.App.4th at pp. 1168-1169; McCurdy,
supra, 30 Cal.2d at 495.)
The trial court should not have submitted plaintiff’s
negligent recommendation theory to the jury because the
evidence, viewed in the light most favorable to plaintiff, does not
support that Dr. Liu was negligent in recommending that
plaintiff undergo the gastric re-sleeve surgery.
There was no evidence whatsoever that Dr. Liu
misdiagnosed plaintiff’s condition; indeed, it was uncontested
that plaintiff suffered from morbid obesity.
There was also not substantial evidence that “no
reasonable physician” would have recommended the gastric re-
sleeve surgery to plaintiff. We reach this conclusion for two
reasons.
First, there is no evidence that gastric re-sleeve surgery is
generally verboten. Indeed, both expert witnesses and Dr. Liu all
testified that they had performed gastric re-sleeve surgeries. As
a result, the evidence does not show that “no reasonable
physician” would ever perform this surgery.
Second, there is no substantial evidence that all reasonable
physicians would have rejected gastric re-sleeve surgery as a
viable option for plaintiff on the facts of this case. Whether a
reasonable physician would recommend a course of treatment is a
24
function of weighing the treatment’s probable benefits against its
probable risks. This balance is assessed by looking to the
particular risk or benefit and their respective likelihoods.
There is no evidence that Dr. Liu incorrectly assessed the
probable risks of the gastric re-sleeve surgery to plaintiff—or,
more to the point, that no reasonable physician would have
assessed the probable risks in the same way Dr. Liu did. That is
because both experts agreed with Dr. Liu’s assessment that
plaintiff faced a 5 percent risk of complications, including
leakage, from the re-sleeve surgery.
There is also no evidence that Dr. Liu incorrectly assessed
the probable benefits of gastric re-sleeve surgery to plaintiff—or,
more to the point, that no reasonable physician would have
assessed the probable benefits in the same way Dr. Liu did. It
was uncontested that Dr. Liu correctly understood the benefits
gastric re-sleeve surgery can confer if it assists with weight loss.
Those benefits generally include reduced risk of diabetes, high
blood pressure and sleep apnea, although plaintiff herself did not
suffer from those additional complications. It was also
uncontested that that Dr. Liu correctly understood that the
likelihood of these benefits coming to pass for this type of elective
surgery was a function of both (1) his medical skill in performing
the surgery, and (2) plaintiff’s volitional choices in sticking to a
diet and exercising. (See, e.g., Anglin v. Grisamore (Ga. Ct. App.
1989) 386 S.E.2d 52, 53 [noting that success with weight-loss
surgeries turns on the “[]willingness” of the patient “to restrict
her diet post operatively in accordance with the instructions
given to her”].) Because it is uncontested that Dr. Liu
competently performed the gastric re-sleeve surgery, the
25
likelihood of plaintiff achieving the benefits of this surgery in this
case was entirely a matter of her own volitional choices.
Plaintiff urges that no reasonable physician would have
pegged her likelihood of sticking to a diet at anything above zero
given her prior failures. We disagree. Where, as here, a plaintiff
tells her physician that she—despite prior failures—desires to try
again in losing weight, a physician does not act unreasonably in
giving her that opportunity. The fundamental premise of the
physician-patient relationship is that—once all material
information is disclosed—the patient gets to decide which
medically reasonable course of treatment to pursue. (Cobbs,
supra, 8 Cal.3d at p. 244 [“the decision whether or not to
undertake treatment is vested in the party most directly affected:
the patient”]; Arato, supra, 5 Cal.4th at p. 1184 [noting the
“medical patient’s protectible interest in autonomous
decisionmaking”]; Moore, supra, 51 Cal.3d at pp. 129, 143; Thor v.
Superior Court (1993) 5 Cal.4th 725, 735; Truman, supra, 27
Cal.3d at p. 292.) If prior failure at complying with diets was
sufficient by itself to render a surgical course of treatment
unreasonable, then patients would be deprived of that choice and,
what is more, nearly every recommendation to pursue an elective
weight-loss surgery would be negligent because most patients
only seek out those surgeries after lesser efforts at dieting have
failed. Because a patient’s prior failures at weight loss do not
reduce the likelihood of losing weight following an elective
weight-loss surgery to zero, the probable benefits of gastric re-
sleeve surgery may logically offset the probable risks, and
reasonable physicians can still recommend such a surgery.
Consequently, plaintiff’s negligent recommendation theory—
26
because it requires some evidence that no reasonable physician
could so recommend—should not have been given to the jury.
Plaintiff makes two further arguments as to why the
evidence was substantial enough to support her negligent
recommendation theory.
First, she asserts that her expert opined that no reasonable
physician would recommend gastric re-sleeve surgery for
plaintiff. Her expert’s opinion, however, rests upon an
assumption that we have rejected—namely, that plaintiff’s prior
weight loss failures meant that the likelihood of future weight
loss success was zero. Accordingly, it cannot constitute
substantial evidence. (E.g., Wise v. DLA Piper LLP (US) (2013)
220 Cal.App.4th 1180, 1191-1192 [expert opinion based on
“‘assumptions . . . not supported by the record’” do not constitute
“substantial evidence”].)
Second, plaintiff contends that no reasonable physician
would have recommended a gastric re-sleeve surgery for plaintiff
without doing another multi-disciplinary work-up of plaintiff, as
her expert opined that a “majority” of bariatric surgeons would
do. Even if we ignored that there is no negligence for
recommending a course of treatment as long as some reasonable
physicians would support the recommendation (even if they do
not constitute a majority), plaintiff has presented absolutely no
evidence that a further work-up would have produced any
information counseling against gastric re-sleeve surgery. Absent
such evidence, there is no causal link between any negligence by
Dr. Liu and any injury to plaintiff and the theory still should not
have been presented to the jury. (Jameson, supra, 215
Cal.App.4th at p. 1166 [case should go to the jury only if there is
“‘sufficient’” “‘evidence’” “‘to allow the jury to infer that in the
27
absence of the defendant’s negligence, there was a reasonable
medical probability the plaintiff would have obtained a better
result’”]; Jennings v. Palomar Pomerado Health Systems, Inc.
(2003) 114 Cal.App.4th 1108, 1118 [directed verdict taking case
away from the jury is warranted where evidence shows a “‘“mere
possibility of . . . causation [or where] the probabilities are at best
evenly balanced”’”].) All plaintiff presented is the opinion of her
expert that the work-up might have revealed contraindications
explaining her weight loss failures; it is well established,
however, that such speculation does not constitute substantial
evidence that would justify sending the negligent
recommendation theory to the jury. (Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 775 [“proof of causation cannot be
based on . . . an expert’s opinion based on inferences, speculation
and conjecture”]; People v. Ramon (2009) 175 Cal.App.4th 843,
851 [“[s]peculation is not substantial evidence”].)
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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