Flores v. Liu (Jan. 28, 2021, B301731) __ Cal.App.5th __ [2021 WL 282302]

Physician is not liable for treatment recommendation unless no reasonable physician would recommend it or it was based on a misdiagnosis.

Jenny Flores, who suffered from morbid obesity, consulted Dr. Carson Liu, a bariatric surgeon, regarding possible surgical weight loss treatments. Dr. Liu informed her of three gastric surgery options: a lap band, a sleeve, and a bypass. Flores initially had the lap band surgery, but she did not lose weight because she failed to maintain the required diet. She then had gastric sleeve surgery, but it was unsuccessful for the same reason. Dr. Liu then performed gastric re-sleeve surgery to further restrict the size of Flores’s stomach. Dr. Liu had explained the risks and potential benefits in advance of each surgery, both orally and in writing. However, he mistakenly told Flores that both the initial gastric sleeve and the subsequent gastric re-sleeve procedures had the same 5 percent risk of complications. In reality, only the re-sleeve surgery had that level of risk; the risk associated with the initial gastric sleeve procedure was much lower. Although Dr. Liu competently performed the gastric re-sleeving, an internal leak caused complications that required Flores to be hospitalized for several weeks. Flores sued Dr. Liu for negligently recommending the gastric re-sleeving surgery, and for not obtaining her informed consent for that surgery. After the trial court instructed the jury that adequate informed consent extinguished any negligent recommendation liability, the jury returned a defense verdict. Flores appealed.

The Court of Appeal affirmed. First, the court held that the trial court erred in instructing the jury that a physician cannot be liable for making a negligent recommendation if adequate informed consent is obtained. However, that error was not prejudicial here because the negligent recommendation claim should never have gone to the jury. The court explained that a physician may be liable for negligent treatment recommendation if either: (1) the recommendation is based on a misdiagnosis of the patient’s condition, or (2) no reasonable physician in the relevant medical community would have recommended the treatment. Thus, evidence of what treatment most doctors would recommend is insufficient, as a matter of law, to establish negligent recommendation. Here, there was no evidence of a misdiagnosis, nor was there evidence that no reasonable physician would have recommended the re-sleeving. Indeed, it was undisputed that re-sleeving is a medically appropriate treatment for morbid obesity. Moreover, the likelihood of success depended upon Flores’ willingness to control her diet, and Dr. Liu was not required to assume that Flores would fail to control her diet in the future because she had failed to do so in the past.

The court further held that Dr. Liu’s failure to perform an additional pre-recommendation evaluation was insufficient, as a matter of law, to establish liability because there was no evidence that a further evaluation would have changed the recommendation. Finally, the court held that substantial evidence supported the jury’s finding that Dr. Liu had obtained Flores’ informed consent for the gastric re-sleeving procedure since he correctly informed her of the risk associated with that procedure, and his prior overestimation regarding the risk of the earlier gastric sleeve procedure did not undermine the accurate disclosure of the risk for the surgery that was at issue.  

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.