Horvitz & Levy obtained the complete affirmance of a judgment in favor of a surgeon in a medical negligence case, defeating plaintiff’s claims of prejudicial error in the jury instructions.

Plaintiff Jenny Flores developed complications after a gastric re-sleeve surgery and sued her doctor in California state court for negligence in recommending the surgery and in not obtaining her informed consent. During jury deliberations, the trial court issued a supplemental jury instruction stating that a finding of informed consent prevented liability for negligent recommendation of the surgery. The jury found the doctor was not negligent.

On appeal, plaintiff argued that the trial court’s supplemental instruction was incorrect because a patient’s informed consent in agreeing to a recommended course of treatment does not cut off liability for negligently recommending that treatment. Horvitz & Levy countered that even if the instruction was erroneous, there was no prejudice because the negligent recommendation claim should never have gone to the jury.

The Court of Appeal agreed with Horvitz & Levy and affirmed the defense verdict, finding the erroneous instruction was not prejudicial. The Court held that a physician can be liable for negligence in recommending a procedure, even if he obtains the patient’s informed consent. But the trial court’s erroneous instruction to the contrary did not prejudice plaintiff because no substantial evidence supported her claim that “no reasonable physician” would have recommended the re-sleeve procedure. Indeed, as Horvitz & Levy had argued, the Court of Appeal held the evidence conclusively established that the re-sleeve procedure is a medically indicated treatment for plaintiff’s morbid obesity and plaintiff presented no evidence that “all reasonable physicians in the relevant medical community would agree that the probable risks of that treatment outweigh its probable benefits.”