A Weighty Decision on Negligent Treatment Recommendations and Informed Consent

In Flores v. Liu (2021) __ Cal.App.5th __ (2021 WL 282302), the California Court of Appeal, Second Appellate District, held that a physician may be liable for negligently recommending a course of treatment in two situations, and the patient’s informed consent cannot negate that physician’s liability.

In this case, patient presented to surgeon for bariatric surgery to combat her morbid obesity. She chose to proceed with gastric lap band surgery in August 2011 that was initially successful. Unfortunately, her weight loss did not stick and in August 2013, patient again requested bariatric surgery with surgeon, this time choosing to proceed with the removal of the lap band and using the gastric sleeve procedure instead. Patient was informed by surgeon regarding the risks of bariatric surgery and chose to proceed, signing a consent form prior to both the 2011 and 2013 procedures.

Though she did lose some weight, patient was non-compliant and re-gained the weight. She again contacted surgeon regarding further options to achieve weight loss and he recommended gastric re-sleeve surgery. Though uncommon, surgeon and both parties’ experts had performed gastric re-sleeve procedures.

Patient was informed by surgeon that the risks of the gastric re-sleeve procedure were “the same” as the risks of a gastric sleeve procedure. Patient agreed to the re-sleeve procedure and again signed a consent form. It was stipulated that surgeon performed the gastric re-sleeve surgery competently on August 10, 2015. However, patient suffered from staple line leakage (an identified risk) following the procedure and was hospitalized for several weeks. Patient and her husband filed suit against surgeon and the matter proceeded to trial in the Los Angeles County Superior Court.

At trial, patient argued that surgeon was negligent for recommending the gastric re-sleeve surgery because she had zero chance of achieving weight loss success based on her prior failures to lose weight and no reasonable bariatric surgeon would have recommended the re-sleeve procedure as a result. She further argued that surgeon was negligent for not giving her as much information as a reasonable patient would consider important in choosing to have the gastric re-sleeve procedure. Both theories of negligence went to the jury.

During deliberation, the jury sent out a note asking if patient was required to prove both theories of negligence or just one of them. The trial court then ruled that “an adequate [informed] consent is going to cut off liability for an erroneous recommendation” and so supplementally instructed the jury. The jury then found that surgeon was not negligent in their verdict issued on August 23, 2019, and this appeal followed.

The Court of Appeal disagreed with the trial court’s supplemental jury instruction and held that a patient’s informed consent cannot negate the physician’s liability for a negligent treatment recommendation. It came to this conclusion based on the disparity of knowledge between the physician and patient and the precedent of Valdez v. Percy (1950) 35 Cal.2d 338 [holding that a patient’s consent to a course of treatment based on misdiagnosis does not negate the physician’s liability for the misdiagnosis]. However, the Court of Appeal ultimately held that although the trial court’s supplemental jury instruction was wrong, it was not reasonably probable to have affected the outcome because substantial evidence supported the jury’s finding that surgeon’s informed consent to patient was sufficient and the jury never should have been presented with the theory of negligent recommendation of a course of treatment.

The Court of Appeal defined the negligent recommendation of a course of treatment to exist in two situations: 1) if the recommendation stems from a misdiagnosis of the underlying condition; or 2) if all reasonable physicians in the relevant medical community would agree that the probable risks of the treatment outweigh the probable benefits. The Court then found that the evidence, even when viewed in the light most favorable to patient, could not support a finding of negligence on the part of surgeon in either scenario. Consequently, the Court of Appeal affirmed the judgment in favor of surgeon.

Though the Flores opinion ultimately turns on the specific facts of the case, the bright line rule it established is that a physician’s recommended course of treatment can be negligent in the case of misdiagnosis or if all reasonable physicians would agree that the risks outweigh the benefits, and a patient’s consent cannot overcome that negligence.

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February 8, 2021