The Court of Appeal of the State of California Second Appellate District Division Two (“California Appellate Court”) stated in its published opinion filed on January 28, 2021 that 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 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.
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. 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. 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.
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” disclosures that might be material if “skilled practitioner[s] of good standing” would “provide” those disclosures “under similar circumstances.”
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.” 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.
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, need not disclose information that is “commonly appreciated” and need not disclose information regarding the non-medical effects of a medical procedure.
Because 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. Thus, when it comes to liability for failing to obtain informed consent, expert testimony has a more “limited and subsidiary role” 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.
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.
In the case it was deciding, the California Appellate Court held: “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 treatment even if he obtains the patient’s informed consent to that negligently recommended course of treatment … this conclusion is dictated by the disparity in medical knowledge between the physician and the patient.”
However, “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 … while Dr. Liu testified that he believed the risk of complications to be “the same” for both the initial gastric sleeve and the gastric resleeve 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.”
The California Appellate Court held: “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.”
Source Flores v. Liu, B301731.
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