Flores v. Liu, B301731
| Court | California Court of Appeals |
| Citation | 60 Cal.App.5th 278,274 Cal.Rptr.3d 444 |
| Docket Number | B301731 |
| Parties | Jenny FLORES et al., Plaintiffs and Appellants, v. Carson D. LIU, Defendant and Respondent. |
| Decision Date | 28 January 2021 |
60 Cal.App.5th 278
274 Cal.Rptr.3d 444
Jenny FLORES et al., Plaintiffs and Appellants,
v.
Carson D. LIU, Defendant and Respondent.
B301731
Court of Appeal, Second District, Division 2, California.
Filed January 28, 2021
Arias & Lockwood, Christopher D. Lockwood, San Bernardino; Law Offices of Patricia A. Law and Patricia A. Law for Plaintiffs and Appellants.
Horvitz & Levy, Mark A. Kressel, Encino, Shane H. McKenzie, Burbank; Neil, Dymott, Frank, McCabe & Hudson, Hugh A. McCabe and Dane J. Bitterlin, San Diego, for Defendant and Respondent.
HOFFSTADT, J.
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.
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 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.
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 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 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...
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