Flores v. Liu, B301731 (Jan. 28, 2021)
Plaintiff developed complications after surgery and sued her doctor for negligence in recommending the surgery and in not obtaining her informed consent. During jury deliberations, the trial court instructed the jury that a finding of informed consent prevented liability for negligent recommendation of the surgery. The jury found the doctor was not negligent.
The Court of Appeal affirmed, finding the trial court’s jury instruction erroneous but not prejudicial. The Court held that a physician can be liable for negligence in recommending a procedure, even if the physician obtains the patient’s informed consent. The trial court’s erroneous instruction to the contrary did not prejudice the plaintiff, who failed to produce evidence that “no reasonable physician” would have recommended the surgical procedure to plaintiff.
The court further held that plaintiff’s evidence was insufficient, as a matter of law, to establish medical negligence because: (1) evidence of what a majority of doctors would have done does not establish the standard of care and (2) evidence of failure to perform an additional pre-surgical evaluation or workup is insufficient to prove negligence if there is no evidence establishing a “reasonable medical probability” that a further evaluation or workup would have changed the outcome.
[Disclosure: Horvitz & Levy represented the defendant on appeal in this case.]
