60 Cal.App.5th 278
Cal. Ct. App.2021Background
- Jenny Flores, morbidly obese, underwent gastric lap band (2011) then gastric sleeve (2014); both initially reduced weight but she later regained weight.
- In 2015 Dr. Carson Liu performed a swallow test, concluded the sleeve had anatomically failed, and recommended a gastric re-sleeve; he disclosed risks and obtained plaintiff’s consent.
- Dr. Liu competently performed the re-sleeve on August 10, 2015; a staple-line leak caused sepsis and multi-organ complications the next day.
- Flores sued for negligence on two theories: (1) negligent recommendation of re-sleeve and (2) failure to obtain informed consent; trial evidence included dueling bariatric-surgeon experts.
- During deliberations the trial court instructed the jury that a fully informed consent would bar liability for a negligent recommendation; the jury returned a not‑negligent verdict and Flores appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When may a physician be sued for negligently recommending a treatment? | Flores: re-sleeve had essentially zero chance given prior failures; no reasonable bariatric surgeon would recommend it. | Liu: recommendation was reasonable based on swallow test and some reasonable physicians perform re-sleeves; benefits could outweigh risks. | A recommendation is actionable if it rests on a misdiagnosis or if no reasonable physician would have recommended it (i.e., probable risks outweigh probable benefits). Here, evidence did not show negligence, so the recommendation theory should not have reached the jury. |
| Does a patient’s informed consent negate liability for a negligent recommendation? | Flores: informed consent cannot absolve a physician for negligently recommending an unreasonable or misdiagnosis‑based treatment. | Liu: a fully informed consent should cut off liability for a recommended course of treatment. | Informed consent does not excuse a negligent recommendation; the trial court erred by instructing otherwise. |
| Did the erroneous jury instruction require reversal? | Flores: the instruction prejudiced her and requires reversal. | Liu: jury’s informed-consent verdict is supported by substantial evidence so any error was harmless. | Error was harmless because the negligent-recommendation theory should not have been submitted; judgment affirmed. |
Key Cases Cited
- Cobbs v. Grant, 8 Cal.3d 229 (1972) (establishes informed-consent duty and minimal disclosures required)
- Burgess v. Superior Court, 2 Cal.4th 1064 (1992) (negligence elements applied to medical malpractice)
- Valdez v. Percy, 35 Cal.2d 338 (1950) (patient consent does not relieve physician liability for misdiagnosis-based treatment)
- McCurdy v. Hatfield, 30 Cal.2d 492 (1947) (physician not negligent where reasonable physicians may disagree; liability only where no reasonable physician would choose the treatment)
- Arato v. Avedon, 5 Cal.4th 1172 (1993) (discussion of informed-consent standards and allocation of factfinder’s role)
- Jameson v. Desta, 215 Cal.App.4th 1144 (2013) (negligent recommendation actionable when based on misdiagnosis)
- Mathis v. Morrissey, 11 Cal.App.4th 332 (1992) (medicine not an absolute field; difference of opinion does not alone establish negligence)
- Truman v. Thomas, 27 Cal.3d 285 (1980) (minimal disclosure list and principles for informed consent)