Unreported / Non-Citable
Background
David Lindgren was diagnosed with tonsillar cancer in 2012 and successfully treated, with no recurrence by 2016. Dr. Angela Chang, an ear, nose, and throat specialist, began treating him in 2018. In May 2019, after David reported a sore throat and weight loss, Dr. Chang ordered a PET-CT scan. The report ruled out recurrence of the prior cancer but flagged hypermetabolic activity in the esophagus and nasopharynx, recommending correlation with direct visualization or an MRI. Dr. Chang called David on June 5, 2019, to discuss the results; the details of that call were disputed at trial. Her note recommended gastroenterologist follow-up, but David testified she told him he did not have cancer and suggested seeing the specialist only for acid reflux. David scheduled but did not keep the appointment after his symptoms improved on medication. In January 2020, a different gastroenterologist found a cancerous esophageal tumor. David underwent a tracheotomy, radiation, chemotherapy, and removal of his voice box, and died on October 15, 2025, while the appeal was pending.
In 2021, David and Debra Lindgren sued Dr. Chang for medical malpractice and loss of consortium. At the 2024 trial they pursued ordinary negligence and informed refusal theories, proposing modified CACI instructions (Nos. 502, 532, 533, 534, and 535) and seeking leave to amend during trial to add the informed refusal claim. The trial court refused to instruct on informed refusal, did not grant leave to amend, and instructed only on ordinary medical negligence. The jury returned a special verdict for Dr. Chang, judgment was entered November 8, 2024, and costs were awarded to Dr. Chang as prevailing party. The Court of Appeal consolidated the appeals from the judgment and the cost award.
The Court’s Holding
The Court of Appeal held the trial court erred in refusing the modified CACI No. 534. Viewing the evidence favorably to Debra, sufficient evidence showed Dr. Chang recommended a procedure—referral for direct visualization of the esophagus or an MRI—making the case analogous to Moore v. Preventive Medicine Medical Group and distinguishable from Scalere v. Stenson, where no procedure was recommended. Because Dr. Chang knew David's symptoms and scan results could signify cancer and the potential harm of a missed diagnosis was death, disclosure was material under the informed refusal doctrine. The court also held the trial court abused its discretion in not granting leave to amend, because the informed refusal theory rested on the same facts already before the jury and Dr. Chang identified no prejudice from the delay.
The court further held the trial court should have given a modified CACI No. 502: in informed refusal cases the jury, not experts, decides whether a significant risk should have been disclosed, although expert testimony remains relevant to whether a risk existed and to causation. The instructional errors were prejudicial because there was more than an abstract possibility the jury would have found for Debra if properly instructed. The court reversed the judgment, vacated the cost award, remanded for a new trial on Debra's informed refusal theory, and awarded Debra costs on appeal.
Key Takeaways
- A trial court must instruct the jury on every theory supported by substantial evidence, including informed refusal when a physician recommends a diagnostic procedure or specialist evaluation.
- The informed refusal doctrine applies to referrals recommending procedures such as direct visualization or MRI, even when the referring physician does not perform the procedure.
- In informed refusal cases, the jury decides the materiality of disclosure without expert testimony; experts remain relevant to whether a risk existed and whether delay caused injury.
- Refusing leave to amend to add a theory based on the same facts already in evidence, where the opposing party shows no prejudice, is an abuse of discretion.
- An order awarding costs falls with the reversal of the judgment on which it is based.
Why It Matters
This unpublished decision applies California's informed refusal doctrine to a specialist referral recommending diagnostic procedures, confirming that a physician's duty to disclose material risks—particularly the potential of death from undetected cancer—is not excused merely because the physician did not perform the recommended procedure herself. It also reaffirms the distinct roles of the jury and expert witnesses in informed refusal cases, where materiality of disclosure is judged by a reasonable-person standard rather than professional custom.
For trial practice, the ruling underscores that plaintiffs should request informed refusal instructions whenever the evidence supports them, even if the theory is raised late, and that courts must liberally allow amendments during trial when no prejudice is shown and the new theory rests on existing facts.