Informed Consent Is No Shield to Negligent Surgical Advice

A new case from the Court of Appeal delves deeply into California law governing informed consent and negligent medical advice, starting with the threshold issue of whether a surgeon’s full discussion on a particular procedure will shield the physician from liability if he or she was negligent in recommending the surgery in the first place.

The short answer is that it won’t. But in getting there, the court offered a refresher on how courts properly rule on informed consent and on negligence when a physician proposes medical treatment.

Enroll in Paperless Billing
CAP members can now sign up for paperless billing and enjoy the ease and convenience of managing their account online. Log in to your CAP member account and select "Setup Paperless Billing" to enroll.

A 33-year-old morbidly obese patient consulted with Dr. Carson Liu, a bariatric surgeon, about surgical weight-loss options. Dr. Liu performed a full medical workup of the patient’s condition and referred her to a psychologist and a nutritionist. Based on the information he gathered, Dr. Liu diagnosed the plaintiff’s morbid obesity as being caused by overeating rather than by any psychological, physiological, or hormonal cause.

The two discussed three options: gastric lap band surgery, gastric sleeve surgery, and gastric bypass surgery. The patient flatly rejected the bypass surgery and chose the lap band option. Dr. Liu explained the risks of the surgery, including leakage, bleeding, and infection. He also explained that the surgery would only “help” her to lose weight and so even after surgery, she must exercise and restrict her dietary intake.

Dr. Liu performed the lap band surgery without complications. In the 16 months following the surgery, the plaintiff was able to regulate her diet and she lost 73 pounds. When she lost her job, however, her stress increased, her healthier eating habits faltered, and she started to regain her weight.

Some eight months later, the patient contacted Dr. Liu about having him perform a gastric sleeve surgery. As the surgeon and his staff had been meeting with the patient regularly for the past two years and those visits included dietary consults, Dr. Liu did not refer her a second time to a nutritionist or psychologist. Dr. Liu explained the nature of the surgery and that possible risks included staple line leakage, bleeding, infection, and a small possibility of death. He quoted a risk of such complications at approximately five percent and the plaintiff agreed to the surgery and signed a consent form.

Dr. Liu performed the surgery and the patient lost some weight over the following several months. By approximately one year post-op, however, she was “non-compliant” with her diet and regained her weight.

At that time, Dr. Liu and the patient discussed further options, including a gastric “resleeve” surgery. After conducing a “swallow test,” Dr. Liu concluded that there had been an anatomic failure of the sleeve, which allowed the patient’s stomach to expand. Dr. Liu recommended a resleeve surgery to remove more of the patient’s stomach and, because he had been treating the patient during the years, he did not do further referrals to a psychologist or nutritionist.

The surgeon explained the risks of the resleeve procedure as “the same” as the original sleeve procedure and quoted the same five percent risk of complications. The patient consented to the surgery, which went forward without event. One day following the procedure, however, one of the staple lines leaked material from the plaintiff’s gastroesophageal junction into her abdominal cavity, causing sepsis, respiratory failure, and acute renal failure. The plaintiff sued Dr. Liu.

In the litigation, plaintiff’s counsel proposed that Dr. Liu was negligent on two theories: (1) He was negligent because the patient had “zero chance” of achieving weight loss success with the second surgery given her prior diet failures and thus no reasonable bariatric surgery would have recommended the resleeve surgery; and (2) he was negligent for not obtaining her informed consent to the gastric resleeve surgery.

The plaintiff’s expert trial witness, a bariatric surgeon, testified that the resleeve surgery had little chance of success because of the plaintiff’s prior failures to adhere to a dietary and exercise regimen. He also opined that the resleeve’s risk of complications is “five to 10 times higher” than for the sleeve surgery and that Dr. Liu was negligent in not sending his patient back for a psychological and nutritional workup.

On informed consent, the expert opined Dr. Liu did not properly inform the patient because he did not tell her that the surgery was “more risky than the first-time operation.” During his testimony, the expert revealed that he had performed resleeve surgeries himself and that the procedure had some — but not “a lot” — of data behind it.

Dr. Liu’s bariatric surgery expert, like the plaintiff’s expert, testified that gastric resleeve surgery is sometimes warranted and that he had also performed the surgery in his practice. He further testified that the surgery was appropriate because (1) no further workup by a nutritionist or psychologist was required in the plaintiff’s case; and (2) reasonable bariatric surgeons could conclude that the probable benefits of the surgery outweighed the probable risks.

On informed consent, the defense expert agreed with the plaintiff’s expert that the risk of the re-sleeve surgery is about 10 times higher than the initial sleeve procedure, but explained that such risk actually went from 0.5 percent (for the initial sleeve surgery) to five percent.

The Superior Court jury found in Dr. Liu’s favor, but the plaintiff’s appeal raised two questions: 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?

The trial court judge had instructed the jury that a full informed consent can shield a physician who improperly recommends a surgery. In Flores v. Liu, the Los Angeles-based Second District Court of Appeal disagreed on that point but sustained the defense verdict anyway by noting that the plaintiff’s case against Dr. Liu for negligently recommending surgery lacked sufficient facts to go to the jury in the first place.

In finding that an informed consent does not protect a physician for negligently recommending a course of treatment, the Court of Appeal noted the disparity in medical knowledge between the physician and patient and that patients are ill equipped to know whether a course of treatment is medically reasonable. Using one of the more unusual analogies you’ll come across in California case law, the court explained:

“Just as a patron’s fully knowledgeable selection of one entrée over another does not say anything about which entrees should be on the menu in the first place, a patient’s fully knowledgeable selection of a particular course of treatment does not say anything about whether the physician was negligent in recommending that course of treatment in the first place.”

In upholding the judgment in favor of Dr. Liu, the Court of Appeal rejected a series of the plaintiff’s arguments.

On the informed consent contention, the appellate court found substantial evidence to support the jury’s verdict that Dr. Liu disclosed to the plaintiff all the information that a reasonable person in the plaintiff’s position should know when making a decision regarding gastric re-sleeving surgery.

Turning to the law on negligent recommendations in medicine, the appellate panel explained: “A physician can be found liable for negligently recommending a course of treatment if (1) his recommendation is based on a misdiagnosis of the plaintiff’s medical condition, or (2) his recommendation, even if based on an accurate diagnosis, is one that no reasonable physician using such skill, prudence, and diligence as other members of the relevant medical community would recommend for the plaintiff.”

As to the first of these prongs, the court found no evidence whatsoever that Dr. Liu misdiagnosed the plaintiff’s condition of morbid obesity.

Then, in finding that plaintiff failed to meet her burden to show that “no reasonable physician” would have recommended plaintiff’s resleeve surgery, the court noted that the expert witnesses on both sides testified that they’ve performed the surgery themselves. (“As a result, the evidence does not show that ‘no reasonable physician’ would ever perform this surgery.”)

Second, the court found no substantial evidence that all reasonable physicians would have rejected resleeve surgery for this plaintiff. Further, there was no evidence that Dr. Liu incorrectly assessed the probable risks of the surgery beyond the five percent that he quoted the patient.

The appellate panel also disagreed with the argument that Dr. Liu’s recommendation of the resleeve surgery was negligent because of the patient’s past experience with diet.

“Where, as here, a plaintiff tells her physician that she — despite prior failures — desires to try again in losing weight, a physician does not act unreasonably in giving her that opportunity.”  The court explained that if “prior failure at complying with diets was sufficient by itself to render a surgical course of treatment unreasonable, then patients would be deprived of that choice and, what’s more, nearly every recommendation to pursue an elective weight-loss surgery would be negligent because most patients only seek out those surgeries after lesser efforts of dieting have failed.”

Finally, the court rejected the plaintiff’s assertion that no reasonable physician would have recommended gastric resleeve surgery without doing another multi-disciplinary workup. (Her expert said that a “majority” of bariatric surgeons would have sent the patient back for psychologic and nutritional consults.) “Even if we ignored that there is no negligence for recommending a course of treatment as long as some reasonable physicians would support the recommendation (even if they do not constitute a majority), plaintiff presented absolutely no evidence that a further workup would have produced any information counseling against gastric resleeve surgery.”    


Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.