ARATO v. AVEDON

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Court of Appeal, Second District, Division 3, California.

Miriam ARATO, et al., Plaintiffs and Appellants, v. Melvin AVEDON, et al., Defendants and Respondents.

No. B027563.

Decided: August 21, 1992

Marian H. Tully, West Covina, for Plaintiffs and Appellants. Baker, Silberberg & Keener, Marshall Silberberg, John C. Kelly, Santa Monica, Veatch, Carlson, Grogan & Nelson, Los Angeles, C. Snyder Patin, Orange, Horvitz & Levy, Frederic D. Cohen and Ari R. Kleiman, Encino, for defendants and respondents.

INTRODUCTION

Plaintiffs and appellants Miriam Arato, Cynthia Arato and Alexander Arato (plaintiffs) appeal from the judgment entered following a special jury verdict favoring defendants and respondents Melvin Avedon, M.D., Clifford Ossorio, M.D., Robert Taub, M.D. and Leon Morgenstern, M.D. (defendants).  Plaintiffs, the wife and children of decedent Miklos Arato, sought damages for physician defendants' alleged failure to inform Mr. Arato fully and truthfully about his serious illness, pancreatic cancer.

Plaintiffs contend a physician's duty to a patient who specifically asks to be told the truth requires full disclosure of information material to enable the patient to make an informed decision and is not to be measured by the general practice in the medical community.

We find merit in plaintiffs' contentions and reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On July 21, 1980, Miklos Arato underwent surgery at Cedars–Sinai Medical Center to remove a non-functioning kidney.   During the course of the surgery, a tumor was discovered in the tail of his pancreas.   Dr. Leon Morgenstern, director of surgery at Cedars–Sinai, was called in to assess the situation.   He concurred with the judgment of Mr. Arato's doctors that the tumor, estimated to be about six inches across, should be removed.   The situation was explained to Mr. Arato's wife, Miriam Arato, and she consented to the additional surgery.   Dr. Morgenstern resected the pancreas, removing en bloc the tumor, part of the pancreas, the spleen, and surrounding tissue and lymph nodes.   The excised specimen was sent to a pathologist for examination.

According to Dr. Morgenstern, he met with Mrs. Arato following the surgery, described the procedure that had been performed, told her that he had removed all the tumor he could see, and indicated that he thought the tumor was cancerous.   Later that same day, Dr. Morgenstern met with Mr. and Mrs. Arato in the intensive care unit.   He then described the surgical procedure, stated that he felt that what he had removed was cancerous, and explained that the findings would be forthcoming from the pathologist.

Several days later, Dr. Morgenstern received the pathologist's report and then informed the Aratos that the tumor was cancerous.   He explained that he had removed all the tumor that he could see, and that the surgical margins around the excised tumor were cleared by one-half centimeter at the pancreas.1  He told them that there was disease beyond the pancreas, although he did not recall telling them there was a probability of disease left behind.   Dr. Morgenstern referred Mr. Arato for oncologic consultation.   He believed that either chemotherapy or radiation or both would be indicated because there was tumor infiltration into structures within the pancreas other than the pancreatic tissue itself (blood vessels, nerves, or lymph nodes).   Mr. and Mrs. Arato were not told that this type of tumor “easily spreads.”

Dr. Morgenstern acknowledged at trial that pancreatic cancer is a very serious form of cancer, causing death in a majority of instances.   Statistics indicate that only five percent of the patients with pancreatic cancer will survive for five years.   Dr. Morgenstern did not tell Mr. Arato that he would die from this disease, nor did he give Mr. Arato a prognosis as to the probable future course of his condition or a reasonable range of life expectancy.

One month after his surgery, Mr. Arato, accompanied by Mrs. Arato, met with Dr. Avedon, the oncologist to whom he was referred.   Dr. Avedon told Mr. and Mrs. Arato that there was a very significant chance that the surgery had not cured Mr. Arato of the disease, and that he was at great risk for a recurrence.   He explained to the Aratos that when anybody has a malignancy, there is always the risk of cells getting into the lymphatic or blood circulation and spreading to other parts of the body, and that there is no test or other means of knowing whether that has happened.   He also explained that there always is the possibility that although the surgeon has removed all the tumor he could see with the naked eye, cells may have been left behind.   Dr. Avedon explained that Mr. Arato was at risk for two kinds of recurrence, either in the area of the surgery or at some distance from it, and that if he should develop some recurrence, it would mean his disease was not cured, and in fact his disease would then be incurable.

Dr. Avedon proposed a form of therapy to the Aratos that he thought had theoretical merit, which might address the risk of recurrent disease.   This treatment involved chemotherapy with a combination of drugs known as F.A.M. and radiation treatments.   Dr. Avedon told the Aratos that F.A.M. had been demonstrated to be experimentally effective in the treatment of some forms of pancreatic cancer, and that it was his hope it would be effective in this type as well.   He also explained that there was the risk that this therapy would have no benefit at all.   Dr. Avedon gave Mr. Arato the option of not undergoing therapy.   Mr. Arato decided to go ahead with the proposed therapy.

At this first meeting, Mr. Avedon gave Mr. Arato an 18–page questionnaire to fill out.   Among the questions was:  “If you are seriously ill now or in the future, do you want to be told the truth about it?”   Mr. Arato circled “yes” in answer to the question.   Mr. Arato also verbally asked that he be told the truth.

After reviewing the pathology report, Dr. Avedon was of the opinion that it was highly likely that Mr. Arato would die of his disease, and that it was a reasonable medical probability that he would live less than five years.   He did not give Mr. Arato that information as he was not specifically questioned about a time frame.

Dr. Avedon, along with Drs. Taub and Ossorio, who were members of his medical group, provided chemotherapy to Mr. Arato.   Dr. Thompson provided radiation therapy.   None of these doctors provided Mr. Arato with information regarding his life expectancy.

A blood test drawn in March showed an abnormally high C.E.A. value.   A second test drawn in April showed a further increase.   Dr. Avedon ordered additional tests.   Results of an upper gastrointestinal study, received on April 22, 1981, showed that two ulcers had developed in the duodenum and indicated a possibility that there was a tumor.   From the results of these tests, Dr. Avedon formed the opinion that it was highly likely that Mr. Arato had a recurrence of the cancer.   Dr. Avedon telephoned Mr. Arato to inform him of the ulcers.   According to Dr. Avedon, he told Mr. Arato that they would have to stop the chemotherapy because they suspected that there was a recurrence of the tumor, which indicated that the chemotherapy was not working, and because they did not want the chemotherapy to interfere with the healing of the ulcers.

As of that time, it was Dr. Avedon's opinion that Mr. Arato's reasonable life expectancy would be short, measurable in months.   He thought it was likely Mr. Arato would not survive a year.   Dr. Avedon did not tell that to Mr. Arato.   He told Mr. Arato that the test results suggested that there might be a recurrence of the disease.

Mr. Arato was admitted to the hospital on June 23, 1981, at which time it was conclusively determined that his cancer had recurred and that he was beyond cure.   Dr. Avedon told Mr. Arato that the evidence showed his disease had recurred and that he was no longer curable.   Mr. Arato asked, “Where do we go from here?”   Dr. Avedon explained that there was no good solution, but that they could try to make things better so that he might have some good time ahead.   Mr. Arato waved Dr. Avedon away.   Dr. Avedon then met with Mrs. Arato, told her about his conversation with Mr. Arato, and expressed his view that Mr. Arato did not want to be further confronted about his condition and asked if there were any issues that needed to be resolved which would require such confrontation.   The doctor mentioned that sometimes people needed to consult with their lawyers and accountants to find out whether there are outstanding issues that need to be taken care of.   Mrs. Arato's view was that Mr. Arato should not be given any further information.   Mr. Arato was discharged on July 5, 1981, and rehospitalized on July 21, 1981.   He died four days later.

This action was filed by Mrs. Arato, and the Arato's two adult children, Cynthia and Alexander against Drs. Avedon, Taub and Ossorio (the Avedon group), and against Dr. Morgenstern and Dr. Thompson.   The third amended complaint contained causes of action for wrongful death, negligent infliction of emotional distress, negligence, willful and wanton misconduct, and fraud and deceit.   However, all causes of action except negligence were dismissed prior to the close of trial.

Plaintiffs' theory was that the defendant doctors had breached the fiduciary duty they owed to their patient to make a full and fair disclosure of all facts which materially affected his rights and interests.   Plaintiffs claimed that if the Aratos had known of Mr. Arato's true condition, they would have conducted their business and personal affairs differently.   Mr. Arato might have chosen to forego the time-consuming and painful chemotherapy treatments;  they both would have redone their wills to avoid adverse tax consequences;  they would have attempted to sell or find someone to manage Mr. Arato's electrical contracting business in order to preserve it;  and they would not have entered into two commercial property transactions which were dependent upon Mr. Arato's professional expertise for successful development.

Prior to commencement of trial, plaintiffs made a motion in limine to exclude expert testimony on the issue of a physician's duty to disclose information to a patient concerning the true nature of a patient's illness, including the physician's diagnosis and prognosis, the information necessary for the patient to make an intelligent and informed consent to proposed medical care and treatment, and other information pertinent to the patient's rights and interests.   The motion was denied.

The three-week trial included extensive expert testimony as to the standard in the medical community regarding disclosure to a patient of life expectancy information.   Over plaintiffs' objection, the jurors were instructed and asked only to decide whether defendant doctors had disclosed all relevant information to enable Mr. Arato to make an informed decision regarding the proposed treatment to be rendered to him;  they received no instructions regarding any other duty of disclosure.   The jury returned a defense verdict,2 and plaintiffs appeal.

CONTENTIONS

Plaintiffs contend:

“I. A patient who specifically asks to be told the truth about his cancer has a right to know the extent and nature of his illness so that he can put his affairs in order before he dies.

“II. A doctor cannot avoid his responsibility to inform his patient of the truth by proof that other doctors also ignore this responsibility.

“III. Expert testimony concerning the adequacy of the doctors' disclosure of the nature and extent of Mr. Arato's illness was not proper in light of Mr. Arato's specific request to be told the truth.”

Defendants contend:

“I. Substantial evidence supports the jury's conclusion that the defendants fully disclosed all the necessary information to Mr. Arato concerning his condition.

“II. Expert testimony concerning the medical community standard in providing life expectancy information to cancer patients was properly admitted.” 3

DISCUSSION

1. The Nature and Scope of the Physician's Duty to Disclose Information Material to the Patient's Decision–Making Process

This appeal presents the question of the scope and nature of the physician's duty to provide information to the patient, which is a responsibility beyond the duty to perform his services in a professionally competent manner.   In Mr. Arato's case, we address the physician's duty to disclose life expectancy information to a patient who has indicated his desire to be told the truth regarding any serious illness he may have.4

The doctrine of informed consent for contemplated procedure has been developed in numerous cases over time.   As explained in Berkey v. Anderson (1969) 1 Cal.App.3d 790, 82 Cal.Rptr. 67, which involved the propriety of a nonsuit against a doctor who prescribed a myelogram, “[i]f appellant did not give his informed or knowledgeable consent, the performance of the myelogram would constitute a technical battery for which the defendant would be liable for all damages proximately resulting, whether the myelogram was or was not skillfully performed․  [¶] ‘A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.   Likewise the physician may not minimize known dangers of a procedure or operation in order to induce his patient's consent.”  (Id., at pp. 803–804, 82 Cal.Rptr. 67, citations omitted.) 5

On the extent or degree of disclosure, the court continued, “At the same time, the physician must place the welfare of his patient above all else and this very fact places him in a position in which he sometimes must choose between two alternative courses of action.   One is to explain to the patient every risk attendant upon any surgical procedure or operation, no matter how remote;  this may well result in alarming a patient who is already unduly apprehensive and who may as a result refuse to undertake surgery in which there is in fact minimal risk;  it may also result in actually increasing the risks by reason of the physiological results of the apprehension itself.   The other is to recognize that each patient presents a separate problem, that the patient's mental and emotional condition is important and in certain cases may be crucial, and that in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent.'  Salgo v. Leland Stanford etc. Board of Trustees, 154 Cal.App.2d 560, 578 [317 P.2d 170].”  (Id., 1 Cal.App.3d at p. 804, 82 Cal.Rptr. 67.)

 It has long been recognized that aspects of the physician-patient relationship are fiducial in nature and create the duty of a physician to make a full and fair disclosure of all facts within his or her expertise which materially affect the patient's rights and interests.  (See Garlock v. Cole (1962) 199 Cal.App.2d 11, 15, 18 Cal.Rptr. 393;  Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 800, 176 P.2d 745.)

 Several recent California Supreme Court cases have addressed the fiducial nature of the patient-physician relationship with respect to the physician's duty of disclosure.

In Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, the California Supreme Court addressed the question of “the nature of a medical doctor's duty to obtain the informed consent of a patient before undertaking treatment.” 6  (Id., at p. 234, 104 Cal.Rptr. 505, 502 P.2d 1.)

Although the surgeon explained the nature of the operation for a duodenal ulcer to the plaintiff, he did not discuss any of the inherent risks of the surgery.   The patient underwent the surgery and subsequently suffered various adverse complications, including spleen injury, development of a gastric ulcer, gastrectomy and internal bleeding as a result of the premature absorption of a suture, all inherent risks of surgery.  (Id., at pp. 235, 241, 104 Cal.Rptr. 505, 502 P.2d 1.)

The court employed four “postulates”:  “The first is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity.   The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.   The third is that the patient's consent to treatment, to be effective, must be an informed consent.   And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions.

“From the foregoing axiomatic ingredients emerges a necessity, and a resultant requirement, for divulgence by the physician to his patient of all information relevant to a meaningful decisional process.   In many instances, to the physician, whose training and experience enable a self-satisfying evaluation, the particular treatment which should be undertaken may seem evident, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie.   To enable the patient to chart his course knowledgeably, reasonable familiarity with the therapeutic alternatives and their hazards becomes essential.”   (Cobbs v. Grant, supra, 8 Cal.3d at pp. 242–243, 104 Cal.Rptr. 505, 502 P.2d 1, emphasis added.)

The California Supreme Court strongly rejected the notion that the reasonableness of the disclosure should be measured by a medical community standard, characterizing such a standard as “needlessly overbroad” and “so nebulous that doctors become, in effect, vested with virtual absolute discretion.  [Citations.]”  (Id., at p. 243, 104 Cal.Rptr. 505, 502 P.2d 1.)

“A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment.   But once this information has been disclosed, that aspect of the doctor's expert function has been performed.   The weighing of these risks against the individual subjective fears and hopes of the patient is not an expert skill.   Such evaluation and decision is a nonmedical judgment reserved to the patient alone.”  (Ibid.;  emphasis added.) 7

The scope of the disclosure required is determined by “the patient's right of self-decision.”  (Id., at p. 245, 104 Cal.Rptr. 505, 502 P.2d 1.)  “That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice.   The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever information is material to the decision.   Thus the test for determining whether a potential peril must be divulged is its materiality to the patient's decision.”  (Ibid.;  citation omitted, emphasis added.)

The requirement of “full disclosure” is limited by two qualifications only:  there is no need for a “mini-course in medical science” nor for a discussion of relatively minor risks inherent in common procedures when there is common knowledge that such risks are of very low incidence.  (Id., at p. 244, 104 Cal.Rptr. 505, 502 P.2d 1.)

In Truman v. Thomas, supra, 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 P.2d 902, the California Supreme Court addressed the question of whether a physician's failure to inform a patient of the material risks of not consenting to a recommended pap smear may have breached the physician's duty of care to his patient.   The court rejected the doctor's contention that the duty to disclose applies only where the patient consents to a recommended procedure.   Based upon the principles articulated in Cobbs v. Grant, the court held the jury should have been instructed that a physician has a duty to disclose all “material information” to a patient.  (Id., 8 Cal.3d at p. 294, 104 Cal.Rptr. 505, 502 P.2d 1.)

“The duty to disclose was imposed in Cobbs so that patients might meaningfully exercise their right to make decisions about their own bodies.   (Cobbs, supra, 8 Cal.3d at pp. 240–241, 243, 104 Cal.Rptr. 505, 502 P.2d 1.)   The importance of this right should not be diminished by the manner in which it is exercised.   Further, the need for disclosure is not lessened because patients reject a recommended procedure.   Such a decision does not alter ‘what has been termed the “fiducial qualities” of the physician-patient relationship,’ since patients who reject a procedure are as unskilled in the medical sciences as those who consent.  (Id., at p. 246, 104 Cal.Rptr. 505, 502 P.2d 1.)   To now hold that patients who reject their physician's advice have the burden of inquiring as to the potential consequences of their decisions would be to contradict Cobbs.   It must be remembered that Dr. Thomas was not engaged in an arms-length transaction with Mrs. Truman.   Clearly, under Cobbs, he was obligated to provide her with all the information material to her decision.”  (Truman v. Thomas, supra, 27 Cal.3d at pp. 292–293, 165 Cal.Rptr. 308, 611 P.2d 902.)8

“Material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject the recommended medical procedure.  (Sard v. Hardy (1977) 281 Md. 432, 444 [379 A.2d 1014];  Wilkinson v. Vesey (1972) 110 R.I. 606, 627 [295 A.2d 676, 69 A.L.R.3d 1202].)   To be material, a fact must also be one which is not commonly appreciated.  (See Canterbury v. Spence (D.C.Cir.1972) 464 F.2d 772, 788.)   If the physician knows or should know of a patient's unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure.  (Waltz & Scheuneman, Informed Consent to Therapy (1970) 64 Nw.U.L.Rev. 628, 639–640.)”  (Truman v. Thomas, supra, 27 Cal.3d at p. 291, 165 Cal.Rptr. 308, 611 P.2d 902, emphasis added, fn. omitted.)

Significantly, the court noted, “The scope of a physician's duty to disclose is set by law rather than by the custom of physicians.  (Cobbs, supra, 8 Cal.3d at p. 243 [104 Cal.Rptr. 505, 502 P.2d 1].)   The physician must also provide ‘such additional information as a skilled practitioner of good standing would provide under similar circumstances.’  (Id., at pp. 244–245 [104 Cal.Rptr. 505, 502 P.2d 1].)”  (Ibid., fn. 3.)

Moore v. Regents of University of California (1990) 51 Cal.3d 120, 271 Cal.Rptr. 146, 793 P.2d 479, also demonstrates that the physician's duty of disclosure is not limited to risks of a proposed treatment but is “broad enough to encompass” the physician's personal interests unrelated to the patient's health, whether research or economic, that may affect his professional judgment, giving rise to a cause of action for lack of informed consent or breach of fiduciary duty.  (Id., at p. 129, 271 Cal.Rptr. 146, 793 P.2d 479.)

In Moore, plaintiff who underwent treatment for leukemia at a university medical center sought damages for the alleged use of his cells by his physician and others for potentially lucrative medical research without permission.   The Supreme Court held plaintiff had stated causes of action for breach of fiduciary duty and lack of informed consent against his physician, but had failed to state a cause of action for conversion.

The court acknowledged three “well-established principles”:  “First, ‘a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.’  (Cobbs v. Grant (1972) 8 Cal.3d 229, 242 [104 Cal.Rptr. 505, 502 P.2d 1];  cf. Schloendorff v. New York Hospital (1914) 211 N.Y. 125 [105 N.E. 92].)   Second, ‘the patient's consent to treatment, to be effective, must be an informed consent.’  (Cobbs v. Grant, supra, 8 Cal.3d at p. 242, [104 Cal.Rptr. 505, 502 P.2d 1].)   Third, in soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision.  (Id., at pp. 242, 246 [104 Cal.Rptr. 505, 502 P.2d 1];  see also Stafford v. Schultz [Shultz] (1954) 42 Cal.2d 767, 777 [270 P.2d 1];  Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 635 [178 Cal.Rptr. 167];  Berkey v. Anderson (1969) 1 Cal.App.3d 790, 805 [82 Cal.Rptr. 67];  Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 800 [176 P.2d 745].)”  (Id., 51 Cal.3d at p. 129, 271 Cal.Rptr. 146, 793 P.2d 479.)

In addressing the scope of disclosure, the Court said:  “To be sure, questions about the validity of a patient's consent to a procedure typically arise when the patient alleges that the physician failed to disclose medical risks, as in malpractice cases, and not when the patient alleges that the physician had a personal interest, as in this case.   The concept of informed consent, however, is broad enough to encompass the latter.  ‘The scope of the physician's communication to the patient ․ must be measured by the patient's need, and that need is whatever information is material to the decision.’  (Cobbs v. Grant, supra, 8 Cal.3d at p. 245 [104 Cal.Rptr. 505, 502 P.2d 1].)”  (Id., 51 Cal.3d at p. 129, 271 Cal.Rptr. 146, 793 P.2d 479.)

Defendants contend they were not required to provide Mr. Arato with statistical life expectancy information in order to obtain his informed consent to treatment.   Defendants also assert that substantial evidence supports the jury's conclusion that “Mr. Arato did not need life expectancy statistics to make an informed decision whether to undergo chemotherapy and radiation.”   (Such a finding, of course, is not implicit in the verdict, under the instructions the jury received in this case.)   They argue that Mr. Arato was made “painfully aware” that he had cancer and that it might have spread.   Although it may be true, as asserted by defendants, that it is common knowledge that cancer is a life-threatening disease, there are all types of cancers with varying degrees of curability, life-expectancy, symptoms, etc.   Knowledge that he had cancer did not in itself provide Mr. Arato with the information necessary to weigh his decisions.

Plaintiffs do not claim that the doctors should have provided Mr. Arato with a specific declaration of his life expectancy.   Obviously, with many factors involved, that would be difficult to do so accurately and could be misleading in itself.

However, without general information regarding the severity and aggressiveness of the particular kind of cancer involved as reflected in mortality rates, as well as the way it usually affects the patient and progresses during its course, there was no way for the patient to evaluate intelligently the information which was provided.   This seems especially true in the circumstances where the treatment, the remedy, has significant side effects and an extremely low probability of ultimate success.   Indeed, the disclosures that were made were meaningless out of the context of the broad picture.   Partial disclosure, like half truths, may constitute misrepresentation and be very misleading.   We all intuitively know how significant the omitted information in fact was when Mr. Arato belatedly discovered the statistical information in the newspaper.

Defendants' position also overlooks the fact that the patient does not live in a vacuum and is likely to receive information and misinformation from other, often unreliable, sources.   When the patient has requested the truth, the physician does not do him a favor by withholding accurate, expert information.9

2. Jury Instructions

 Plaintiffs contend the jury was not properly instructed on the physician's duty of disclosure in regard to plaintiff's cause of action for negligence.10  They contend the trial court erred by refusing certain special jury instructions requested by plaintiffs.

Plaintiffs specifically identify the following requested instructions, among a number, which were refused:

“A physician has a fiduciary duty to a patient to make a full and fair disclosure to the patient of all facts which materially affect the patient's rights and interests.”

“The scope of the physician's duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice.   All information material to the patient's decision should be given.” 11

The jury was instructed on the usual standard of care of physicians based upon professional community standards employed in malpractice cases.12

On the key issue of the duty of disclosure, the jury was instructed as follows:  “Except as hereinafter explained, it is the duty of the physician to disclose to the patient all material information to unable [sic] the patient to make an informed decision regarding the proposed treatment.  [¶] Material information is information upon which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure.   [¶] To be material a fact must also be one which is not commonly appreciated.   [¶] A physician has no duty of disclosure beyond that required of physicians of good standing in the same or similar locality when he or she relied upon facts which would demonstrate to a reasonable person that the disclosure would so seriously upset the patient that the patient would not have been able to rationally weigh the risks of refusing to undergo the recommended treatment.   [¶] Even though the patient has consented to the proposed treatment or operation, the failure of the physician to inform the patient as stated in this instruction before obtaining such consent is negligence and renders the physician subject to liability for any damage legally resulting from the failure to disclose or for any injury legally resulting from the treatment, if a reasonably prudent person in the patient's position would not have consented to treatment if he or she had been adequately informed of the likelihood of his premature death.13  [¶] The law recognizes that patients are generally persons unlearned in the medical sciences and that the knowledge of the patient and the physician are not in parity.  [¶] The law recognizes that a person of adult years and in sound mind has the right in the exercise of control over his body to determine whether or not to submit to lawful medical treatment.  [¶] The doctrine of informed consent imposes upon a physician a duty to disclose relevant information concerning a proposed treatment.  [¶] However, the doctrine recognizes that the primary duty of a physician is to do what is generally best for the patient.”

Although these instructions follow BAJI, based on Cobbs v. Grant, they nevertheless are misleading in this case.   The qualification, “However, the doctrine recognizes that the primary duty of a physician is to do what is best for the patient,” added to the BAJI instruction upon defendants' request, implied it is the physician, not the patient, who ultimately knows what is best and therefore may limit disclosure if the physician believes the patient may override his expert opinion.

Another instruction focused on the medical community standard if the physician “relied on facts which would demonstrate to a reasonable person that the disclosure would so seriously upset the patient that the patient would not have been able to rationally weigh the risks of refusing to undergo the recommended treatment.”

This instruction reflects language used by the court in Cobbs v. Grant, supra, 8 Cal.3d at p. 246, 104 Cal.Rptr. 505, 502 P.2d 1, in discussing jury instructions of possible defenses available to a doctor, which was not the focus of the instruction given in this case.14  Also, the emphasis of this instruction, the introductory language, is on the application of the community standard, not its limited application.   Without the additional instructions requested by plaintiffs, there is misleading emphasis on the standards of the medical community, as reflected in expert opinion.

Defendants assert that the jury was specifically instructed that information about community standards was “only relevant” if the defendants reasonably concluded that life expectancy information would have interfered with Mr. Arato's ability to rationally weigh the risks of refusing the recommended treatment.   The instruction was not specifically limited, nor were the instructions as a whole that clear.   In fact, the instructions on disclosure immediately followed the lengthy BAJI instructions (6.00, 6.01, 6.02, 6.03, 6.30), concerning the standard of care of professionals in the same field or locality which the jury was instructed was to be based only upon the opinions of experts, including the defendants.15  Since there was no claim of negligence in the administering of treatment, other than in disclosure, these instructions, without qualification, were misleading.

Defendants also point out that there was evidence from which a jury could conclude that the exception applied—that indeed Mr. Arato was anxious and perhaps even suicidal.   Nevertheless, under the instructions as a whole, it is impossible to determine whether the jury found such an exception or instead applied the community standard as expressed by the experts, including defendants.

3. Damages

For the negligence cause of action based on breach of duty, “the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”  (Civ.Code, § 3333.)

The negligence cause of action which went to the jury was brought by Mrs. Arato on behalf of Mr. Arato's estate, and therefore is subject to the provisions of Probate Code section 573.

“Probate Code section 573 is the principal provision governing survival of actions in this state․  The 1961 amendment was meant to make clear that all claims, including those for injury to the person, survived the death of the victim or wrongdoer.  (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) §§ 14–15, pp. 2314–2315;  Estate of Hoertkom [Hoertkorn] (1979) 88 Cal.App.3d 461, 465 [151 Cal.Rptr. 806].)   In the present case, the decedent's claim is in the nature of a tort, and under section 573, such a claim survives his death and may be brought by the administrator of his estate.  (4 Witkin, supra, at p. 2315.)”  (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 174, 216 Cal.Rptr. 661, 703 P.2d 1.)   The statute specifically precludes recovery for pain and suffering.  (Prob.Code, § 573, subd. (c);  In re Air Crash Disaster at Sioux City, Iowa (N.D.Ill.1991) 760 F.Supp. 1283.)

 Contrary to defendants' assertion that the only damages the Aratos could “theoretically” recover on Mr. Arato's behalf would be damages for alleged pain and suffering incurred during treatment, Mr. Arato allegedly suffered general damages for treatment without full disclosure similar to the type of damages the patient suffers for treatment absent informed consent.16  At the minimum, this is the costs of such treatment, but it should also include loss of time and debilitating effects not knowingly assumed.17  As noted in Moore v. Regents, various kinds of damages are recoverable in a breach-of-fiduciary-duty action, punitive as well as compensatory.18  (Cf. Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1142, 277 Cal.Rptr. 354.)

 As for the timing of the loss, the fact that the exact financial loss to the estate could not be determined until after Mr. Arato's death does not preclude recovery of any portion of those losses which occurred prior to his death.   The failure to disclose life expectancy information could have resulted in actions as well as inactions by Mr. Arato which resulted in losses to him.   Mr. Arato sustained financial loss if he was unable to take steps to protect his estate during the last stages of his illness.   He also incurred losses when he no longer was able to manage projects which required his skill and knowledge.  (Cf. Brown v. Critchfield (1980) 100 Cal.App.3d 858, 161 Cal.Rptr. 342 (attorney's and real estate broker's breach of fiduciary duty to inform plaintiff of default by purchaser resulted in recoverable losses even though it could not be proved which one of various circumstances would have resulted if plaintiff had been adequately informed).)   It was up to the jury to determine whether defendants' alleged breach was the proximate cause of damages and the amount of these damages.   Under the circumstances of the trial of this case, the jury never reached these issues.19  There was sufficient evidence of damages to Mr. Arato, prior to his death, other than the obvious pain and suffering he endured, to allow the issue to go to the jury.

4. Expert Testimony

 The physician's duty to disclose is a duty imposed by law.   Therefore, it is not governed by the standard practice of the physician's community.  (Berkey v. Anderson, supra, 1 Cal.App.3d 790, 805, 82 Cal.Rptr. 67.) 20

In Cobbs v. Grant, supra, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, the Supreme Court rejected defendant doctor's argument that his duty should be measured as a duty to reveal such information as would be disclosed by a doctor in good standing within the medical community.  (Id., at p. 241, 104 Cal.Rptr. 505, 502 P.2d 1.)  “ ‘Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone.   Respect for the patient's right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.’   Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.”   (Id., at p. 243, 104 Cal.Rptr. 505, 502 P.2d 1.)

 Also, expert testimony is not necessary where negligence is demonstrated by facts which can be evaluated by resort to common knowledge.   (See Ales v. Ryan (1936) 8 Cal.2d 82, 100, 64 P.2d 409.)

 Expert testimony is properly admitted as relevant to certain issues under certain circumstances only, such as the doctor's defense discussed above, when the doctor proves by a preponderance of the evidence that the disclosure would seriously upset the patient.  (Cobbs v. Grant, supra, 8 Cal.3d at pp. 245–246, 104 Cal.Rptr. 505, 502 P.2d 1.)   Beyond the minimal disclosure (which includes all information material to the patient's decision) community practice is relevant only to establish what “additional information” is customary.   (See Cobbs v. Grant, supra, at pp. 244–245, 104 Cal.Rptr. 505, 502 P.2d 1;  Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521, 534–535, 126 Cal.Rptr. 681;  Jamison v. Lindsay (1980) 108 Cal.App.3d 223, 232, 166 Cal.Rptr. 443;  McKinney v. Nash (1981) 120 Cal.App.3d 428, 441, 174 Cal.Rptr. 642.)

 In this case expert testimony went well beyond these exceptions, and appropriate instructions were absent.   The defendants testified on their own behalf as to their own practice regarding disclosure of information and found themselves in compliance with their own standards.

The erroneous admission of this expert testimony evidence was most certainly prejudicial.   Further prejudicing the result, the jury was instructed that it must determine the standard of care required of the defendants only from the opinions of the physicians, including the defendants, who testified as experts.

5. Conclusion

In light of the misleading jury instructions, coupled with the erroneous introduction of expert testimony on community standards in providing life expectancy information, judgment is reversed and the matter remanded for further proceedings.

DISPOSITION

The judgment is reversed.   Costs are awarded to plaintiffs.

I respectfully dissent.

The majority opinion finds prejudicial error by the trial court with respect to jury instructions, admission of expert testimony and damages and, based thereon, reverses and requires a new trial.   In my view, my colleagues are mistaken on all three points.

1. The Jury Was Properly Instructed

The majority, by its decision, seeks to use this case as a vehicle to impose upon the medical profession the fiduciary obligation to volunteer life expectancy predictions to a patient, not to assist him in making a decision about prospective treatment, but in order to preserve and protect the financial and property interests of his heirs.

This result requires a judicial recognition of a fiduciary duty to a patient which no case has ever recognized.   Indeed, it assumes an application of that oft-used term which our Supreme Court has recently expressly eschewed.   In discussing a physician's duty of disclosure, in a case involving the possible personal and conflicting interests of the physician, which were unrelated to any treatment of the patient, the court commented, “In some respects the term ‘fiduciary’ is too broad.   In this context the term ‘fiduciary’ signifies only that a physician must disclose all facts material to the patient's decision.   A physician is not the patient's financial advisor․”  (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 131, fn. 10, 271 Cal.Rptr. 146, 793 P.2d 479.)

The authority cited by the majority opinion for such an expanded physician responsibility essentially rests on two older California cases which, when examined closely, simply do not support the proposition for which they are cited.   In Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 176 P.2d 745, the court was faced with the assertion by a defendant doctor, in a malpractice action, that the plaintiff patient had not filed a timely complaint and his claim was barred by the statute of limitations.   However, plaintiff's allegations demonstrated that his delay in bringing suit was the direct result of the defendant's failure to disclose the true nature of plaintiff's continuing medical problems (plaintiff had developed cancer from a negligent overexposure to x-rays administered by defendant).   In response to the defendant's claim that plaintiff had not been diligent in discovering his actual medical condition, the Bowman court said, “Perhaps the most significant feature in the present case which makes inapplicable the doctrine of constructive notice is the existence of the relationship between the parties of physician and patient, which in contemplation of law is a fiduciary one.   (Citation.)  As fiduciaries it was the duty of defendant[ ] to make a full and fair disclosure to plaintiff of all facts which materially affected his rights and interests.”  (Id., at p. 800, 176 P.2d 745.)   In making this statement, Bowman relied upon a number of other cases, none of which involved the physician-patient relationship.   What such authorities do deal with is the question of the fraudulent concealment of a cause of action, by one party to a special trust relationship, and the impact of such concealment on the application of the statute of limitations.

Another case relied upon by the majority, Garlock v. Cole (1962) 199 Cal.App.2d 11, 18 Cal.Rptr. 393, did involve the concealment by a physician of important information which resulted in the plaintiff's delay in filing the action.   However, the court simply quoted Bowman and held that the question of such concealment was a triable issue of fact which precluded summary judgment.  (Id., 199 Cal.App.2d at p. 15, 18 Cal.Rptr. 393.)   In my view, neither Bowman nor Garlock support the proposition that a physician has a fiduciary relationship with his or her patient which would impose the burdens recognized by the majority opinion.

Certainly, Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, provides no recognition of such a fiduciary concept.   In fact, the court made only a passing comment on the point.   In referring to a number of defenses which are available to a doctor who has not made the disclosure required by law, the court stated that such defenses, “of course, must be consistent with what has been termed the ‘fiducial qualities' of the physician-patient relationship.”  (Id., at p. 246, 104 Cal.Rptr. 505, 502 P.2d 1.)   The court cited for this proposition the case of Emmett v. Eastern Dispensary and Casualty Hospital (D.C.Cir.1967) 396 F.2d 931, where the court rejected a defendant hospital's attempt to rely on the statute of limitations after there had been a failure to disclose information to the plaintiff (which as the decedent patient's personal representative he was entitled to obtain in spite of the physician-patient privilege).   The court stated, “The responsibilities of physicians and hospitals to protect their patients' medical facts from extrajudicial exposure spring from the confidential nature of the relationship.   We find in the fiducial qualities of that relationship the physician's duty to reveal to the patient that which in his best interests it is important that he should know.”  (Emmett, supra, 396 F.2d at p. 935, fn. omitted.)

Thus, I would respectfully suggest to my colleagues that the rule which they adopt here has no legal support, at least in the context of the facts of this case.   It rests entirely upon two cases which found the physician-patient relationship to be one which precluded a medical defendant from asserting a limitations defense where the patient's delay in commencing the action was due to ignorance fostered by the failure to disclose material information known only to the physician.   That, of course, is not the issue presented here.

The real question presented by this appeal is just how broad is the scope of a physician's duty of disclosure.   It is one thing to require a physician to provide full information so that a patient may make an intelligent and informed decision about a proposed treatment and the impact it may have on his health and physical condition, and it is quite another to require that same physician take into account a patient's undisclosed business and financial affairs as a factor in the evaluation of the information that needs to be provided.   The majority's extensive quotations from cases dealing with the former provide no rationale for an expansion of the physician's duty to encompass the latter.

Although it is not entirely clear from their briefs on appeal, plaintiffs 1 apparently complain that two requested instructions were not given.2  One essentially asked for the jury to be told that a physician has a “fiduciary duty” to a patient,3 a duty which clearly does not exist in the sense that plaintiffs advance it.   All that is required is that the physician disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed treatment.   The trial court gave such an instruction.  (BAJI 6.11.)   The second refused instruction 4 simply restates, in part, instructions which were given and was thus superfluous.   In my view, the trial court properly refused both.

As the Supreme Court commented in Moore v. Regents of University of California, the fiduciary duty urged by plaintiffs is much broader than that recognized by the cases.   The correct description of a physician's disclosure responsibility is set out in the two Supreme Court decisions of Cobbs v. Grant, supra, 8 Cal.3d at pp. 243–246, 104 Cal.Rptr. 505, 502 P.2d 1 and Truman v. Thomas (1980) 27 Cal.3d 285, 291–292, 165 Cal.Rptr. 308, 611 P.2d 902.   The instructions given to the jury were taken directly from BAJI 6.11 which in turn is based on Cobbs (see Maj. opn., at pp. 176–177 of 11 Cal.Rptr.2d.)   They correctly and adequately defined the defendant's disclosure responsibilities.   These instructions were not misleading but rather clearly explain the physician's duty.

The majority's quarrel with the instructions, purely and simply, is that they do not contain language which the Supreme Court has never sanctioned and indeed, has suggested is inappropriate.

This, of course, exposes the real problem with the majority opinion.   It plainly seeks to reach a result for which there is no legal basis as to liability or damages.  “The duty to disclose was imposed in Cobbs so that patients might meaningfully exercise their right to make decisions about their own bodies.”  (Truman v. Thomas, supra, 27 Cal.3d at p. 292, 165 Cal.Rptr. 308, 611 P.2d 902, emphasis added.)   But no claim is made here that the decedent was not given adequate information to decide whether to undergo the recommended chemotherapy treatment.   What plaintiffs claim is that decedent was not told more explicitly of the strong likelihood of an early death from his disease.5  As the majority notes (see slip opn. at pp. 172–173 of 11 Cal.Rptr.2d), what concerned the plaintiffs and the claims on which they brought suit were:

a. If decedent had known of his true condition, he would have conducted his business and personal affairs differently.6  However, no evidence was offered of any business or personal losses sustained by decedent prior to his death.   Plaintiffs' claimed losses related to events and circumstances which took place after decedent's death and because he died.7  These are matters properly considered in a wrongful death action but not in a negligence action (brought under Prob.Code, § 573) where it must be established that the decedent himself suffered the damage;

b. Decedent might have chosen to forgo the time-consuming and painful chemotherapy treatments.   Plaintiffs made no claim for, nor offered any evidence as to, the costs of such treatment which clearly are the type of damage recoverable in a survival action.   However, decedent's pain, suffering and emotional stress from the treatment, which is the only other kind of damages for which defendants might be liable in this action, are simply not recoverable under Probate Code section 573.  (See Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 920, fn. 3, 148 Cal.Rptr. 389, 582 P.2d 980.);

c. Decedent and his wife might have redone their wills so as to avoid adverse tax consequences.   Such tax losses, if any, were sustained after decedent's death and because of it, and are not recoverable in the cause of action which went to the jury.

As this review demonstrates, plaintiffs' real claim here has nothing to do with decedent not being sufficiently informed to decide whether to undergo a recommended treatment.   However, this is the disclosure purpose which the Cobbs court had in mind when it stated, “In sum, the patient's right of self-decision is the measure of the physician's duty to reveal.   That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice.   The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever information is material to the decision.   Thus the test for determining whether a potential peril must be divulged is its materiality to the patient's decision.”  (Cobbs v. Grant, supra, 8 Cal.3d at p. 245, 104 Cal.Rptr. 505, 502 P.2d 1.)   The court's concern related to the importance of the patient's decision-making ability so as to ensure that the patient, and not the physician, would decide just what physical or emotional risks he or she would assume.   In the absence of evidence that specific financial or property matters were a part of the patient's concern, and such fact was made known to the physician, there is no legal requirement under either Cobbs or Truman that a physician take those into account.   Indeed, as I have noted, the Supreme Court seems to expressly negate such a responsibility in Moore v. Regents of University of California, supra, 51 Cal.3d at p. 131, fn. 10, 271 Cal.Rptr. 146, 793 P.2d 479.)

In sum, the instructions which were given by the trial court are taken directly from the language in Cobbs (BAJI 6.11) and correctly described the defendants' disclosure responsibilities.   The instructions requested by plaintiffs which were refused, to the extent they were not duplicative of instructions actually given, were founded upon a principle of law not recognized in California (or, as noted in fn. 2, ante, were otherwise properly rejected).

2. Expert Testimony Was Properly Admitted

The majority also finds fault with the defendants' reliance at trial on expert testimony as to a physician's duty of disclosure.   However, such conclusion ignores the limited purpose of such testimony, which purpose was expressly sanctioned by Cobbs;8  it also makes too little of the fact that the jury was properly instructed as to this limited application of such evidence.   On appeal, we must assume that the jury understood and followed the instructions as given and considered such expert testimony only for the limited purpose for which it was introduced.

The majority also ignore another reason for which such expert testimony was admissible, and for which no limiting instruction was required.   In Cobbs, the Supreme Court noted that beyond the minimal disclosure which a physician was required to make, “a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances.”  (Cobbs v. Grant, supra, 8 Cal.3d at pp. 244–245, 104 Cal.Rptr. 505, 502 P.2d 1;  emphasis added.)   Plaintiffs' principal if not sole claim was that defendants had not provided sufficient life expectancy information to enable the decedent to get his financial and business affairs in order.   This specific kind of information, which goes beyond what was needed to evaluate the risk of treatment,9 is the very kind of disclosure which should be required only if it is common in the medical community to do so.   A jury's determination of such fact necessarily requires expert testimony.   Such evidence, when offered for this purpose does not implicate the limited use of expert testimony discussed above and requires no special instructions beyond those which were in fact given.

3. No Evidence of Recoverable Damages Was Presented

Finally, there is the question of recoverable damages.   For reasons known best to them, plaintiffs do not discuss this issue anywhere in their briefs.   Although, by their own motion and by orders of the trial court which they do not question on appeal, plaintiffs' case was reduced to the single claim of negligence, they, and the majority opinion, ignore such fact.   There is no consideration whatever given to the question of just what recoverable damages were either claimed or proven by plaintiffs.   My colleagues simply attempt to finesse this otherwise dispositive barrier (see pp. 30–33 of the slip opinion) 10 by vague and general statements which can only be characterized as disingenuous.   They refer to damages which were alleged, but not proven.   The majority cites as examples, “the costs of treatment, ․ [the] loss of time and debilitating effects not knowingly assumed.”

Although the majority acknowledges that no evidence was presented with respect to the costs of treatment, it nonetheless concludes that, “the impact of the treatment on his business and personal life during Mr. Arato's remaining few months of life” is sufficient to justify an award of general damages.   In other words, the majority apparently subscribes to the proposition that decedent had sustained some form of ephemeral “general damages” above and beyond those expressly proscribed by Probate Code section 573.   The majority's cavalier treatment of this critical issue seems to suggest that such damages exist for any tort victim (even though nominal) although no evidence of such damage was ever offered and plaintiffs never made any claim therefore.   I know of no authority for such a proposition.  “General damages” are defined to include pain, suffering, emotional distress and other forms of detriment.   (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1599, 265 Cal.Rptr. 719.)   In my view, all of these are embraced by the proscription in Probate Code section 573 as they all necessarily flow from the commission of the tort itself and are personal to the decedent or require particular evidence which was neither offered nor claimed to exist in this case (e.g., expert testimony in support of an alleged loss of future earning capacity see Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 656–660, 151 Cal.Rptr. 399).

The majority's other attempt to justify the existence of damages to the decedent is, in my view, equally lame.   The opinion speculates that even though the plaintiffs only offered evidence of damages which arose because of and after decedent's passing, there must have been some losses which were sustained before he died.11  Unfortunately, no evidence of such losses was presented at trial.   All of the evidence offered by plaintiffs related to events and circumstances which took place after decedent's death.   This should not be surprising since the real essence of plaintiffs' complaint is that the failure to provide information regarding the gravity of decedent's illness prevented potential arrangements of his financial and business affairs which would have avoided, after his death, the losses and diminution of property values allegedly suffered by his estate and heirs.

On the evidence introduced in this case, there are no damages which can be recovered in a survival action.   The damages which plaintiffs actually sought to recover, and which are the actual focus and obvious purpose of this case, are not proper damages in an action brought under Probate Code section 573.   Thus, even if there were errors made in the admission of evidence or instruction of the jury, there was no prejudice to plaintiffs.

I would affirm the judgment.

FOOTNOTES

1.   Mrs. Arato testified that Dr. Morgenstern told them they were able to remove all the tumor, that he took off an extra part of the pancreas to assure that the tumor did not go beyond that point.  “It was all clear.”

2.   The jury found (1) none of the defendants “negligent in the medical management of the deceased,” and (2) that defendants “disclose[d] to decedent ․ all relevant information which would have enabled him to make an informed decision regarding the proposed treatment to be rendered him.”

3.   Defendants also make the following contentions in response to some of plaintiffs' arguments:  “III. Dr. Wellish was properly permitted to testify as an expert witness and his testimony did not exceed the scope of his expertise.  [¶] IV. There is no basis for reversal on the ground defendants were improperly permitted to testify as experts on each other's behalf.”

4.   The dissent conveniently overlooks that the duty to disclose in this case is imposed on the defendant-physician because he represented to the patient that he would make such disclosure.   In other words the defendant-physician voluntarily undertook this duty of full disclosure.

5.   The California Supreme Court has clarified the nature of the tort resulting from lack of informed consent, explaining that the battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.   When the cause of action arises upon the occurrence of undisclosed inherent complications of a treatment to which the patient consented, the action should be pleaded in negligence, not battery.  (Cobbs v. Grant (1972) 8 Cal.3d 229, 240–241, 104 Cal.Rptr. 505, 502 P.2d 1.)

6.   The Cobbs court held there was not substantial evidence to support a jury verdict for the plaintiff on the issue of defendant doctor's liability on the theory he was negligent either when he decided to operate or in performing surgery.  (Id., at p. 238, 104 Cal.Rptr. 505, 502 P.2d 1.)   However, because there was a general verdict it was impossible to determine whether the jury had found the doctor liable under that theory or on the alternate theory presented, failure to obtain plaintiff's informed consent for surgery.   Therefore, the court addressed the question of informed consent because it was likely to arise on retrial.

7.   The law provides for an exception where it is evident the patient cannot evaluate the risk, such as in an emergency or the incompetency of patient.  (Ibid.)

8.   “The informed consent doctrine is based on principles of individual autonomy, and specifically on the premise that every person has the right to determine what shall be done to his own body.   Surgeons and other doctors are thus required to provide their patients with sufficient information to permit the patient himself to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure.   Such a disclosure should include the nature of the pertinent ailment or condition, the risks of the proposed treatment or procedure, and the risks of any alternative methods of treatment, including the risks of failing to undergo any treatment at all.”  (Prosser & Keeton, The Law of Torts (5th ed. 1984) Negligence:  Standard of Conduct, p. 190, fns. omitted.)“ ‘Where circumstances permit, the patient should be told (1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the risks involved, (4) the prospects of success, (5) the prognosis if the procedure is not performed, and (6) alternative methods of treatment, if any.’   Louisell & Williams, Medical Malpractice, 1981, ¶ 22.01 at 594.44․”  (Ibid., at n. 62, citing, among others, Truman v. Thomas (1980) 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 P.2d 902, emphasis added.)

9.   This does not mean that doctors must be heartless dispensers of death sentences as implied by defendants.   Within the duty of full disclosure are those matters to which the patient may look for optimism, such as the very reasons defendants now offer for not telling Mr. Arato he was going to die (the atypical location of his tumor, new treatments, early or “accidental” discovery).   And included should be an explanation of the limited value of statistics when applied to a particular case.

10.   In connection with this cause of action, the complaint alleged that the defendants “negligently and carelessly examined, diagnosed, medicated and treated decedent for his said cancerous condition and negligently advised said decedent concerning the nature and extent of said cancerous condition in that they advised him that his cancer was ‘cured’, and/or that said cancer was in complete remission”;  “․ [D]ecedent was the owner and manager of a valuable electrical contracting business and other valuable and substantial assets”;  “As a direct and proximate result of said negligence and ‘wrongful conduct of said defendants, and each of them, plaintiffs' decedent was deprived of the opportunity of knowing that he was a terminal patient with a life expectancy of approximately one year or less, and was further deprived of the opportunity to get personal and business matters in order in anticipation of his death, all to his business and financial loss and loss of earnings․”  The complaint prayed for loss of earnings, business, investment, and other losses plus interest, general damages, costs of suit and other relief deemed just and proper.

11.   Related requested instructions were:  “A patient cannot be negligent in relying on the assumption that, had there been anything further to disclose in connection with the nature or extent of a disease, his physician would have disclosed it.”“Where the physician has a duty to disclose information, disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to a recovery.”

12.   “In performing professional services for a patient, a physician or surgeon has the duty to have that degree of learning and skill ordinarily possessed by reputable physicians and surgeons practicing in the same or similar locality and under similar circumstances.  [¶] It is his further duty to use the care and skill ordinarily exercised in like cases by reputable members of his profession, practicing in the same or similar locality under similar circumstances and to use reasonable diligence and his best judgment in the exercise of his skill, and the application of his learning, in an effort to accomplish the purpose for which he is employed.  [¶] A failure to perform any such duty is negligence.”

13.   This instruction employs the objective test, as recommended in Cobbs v. Grant, supra, 8 Cal.3d 229, 245, 104 Cal.Rptr. 505, 502 P.2d 1.   We note that the reasonably prudent person standard, though practical, tends to diminish the right of a patient to control his own body.

14.   As a defense, the defendants would bear the burden of proof.   “Material facts need not be disclosed where it is evident that the patient cannot evaluate the data because, for example, the patient is incompetent or exigent circumstances preclude adequate disclosure.  ( [Cobbs v. Grant, supra,] at pp. 243–244, 104 Cal.Rptr. 505, 502 P.2d 1.)  ‘The burden of going forward with evidence of nondisclosure rests on the plaintiff.   Once such evidence has been produced, then the burden of going forward with evidence pertaining to justification for failure to disclose shifts to the physician.’  (Id., at p. 245 [104 Cal.Rptr. 505, 502 P.2d 1].)”   (Truman v. Thomas, supra, 27 Cal.3d at p. 291, n. 3, 165 Cal.Rptr. 308, 611 P.2d 902.)

15.   BAJI 6.30 in part as given provided, “You must determine the standard of professional learning, skill and care required of the defendant only from the opinions of the physicians including the defendants who have testified as expert witnesses as to such standard.”

16.   “Compensatory damages are classified in law as either general or special.   General damages are those which necessarily follow from the injury inflicted on the plaintiff, and are implied by law to have thereby accrued to him, although they need not always result from the commission of a particular wrong.   Special damages, on the other hand, are those actually sustained by the plaintiff, and are not implied in law.   Otherwise defined, special damages are superadded to the general damages which may stem from an act that is injurious in itself, or else they are the result of an act which, while not injurious or actionable in itself, is nevertheless productive of injurious consequences.   They are, in short, a natural, if not a necessary, result of the act of which the plaintiff complains;  and they do not, ordinarily, arise from the wrongful act itself, but depend on the circumstances peculiar to the infliction of each respective injury.”  (23 Cal.Jur.3d Damages, § 19, p. 29;  fns. with citations, omitted.)

17.   Although there was no evidence of the medical costs incurred, there was evidence of the impact of the treatments on his business and personal life during Mr. Arato's remaining few months of life.   The trial court dismissed plaintiffs' cause of action for fraud.

18.   “[U]nlike in the traditional ‘informed consent’ context of Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1]—a plaintiff should not be required to establish that he would not have proceeded with the medical treatment in question if his physician had made full disclosure, but only that the doctor's wrongful failure to disclose information proximately caused the plaintiff some type of compensable damage.   The majority does not attempt to identify in advance of trial the various kinds of damage or injury for which plaintiff may properly recover in his breach-of-fiduciary-duty action, and that may be understandable.   Nonetheless, it is worth noting that, in appropriate circumstances, punitive as well as compensatory damages would clearly be recoverable in such an action.   Accordingly, the dissent underestimates the potential efficacy of the breach-of-fiduciary-duty cause of action in dismissing the action as a ‘paper tiger.’  (Dis. opn., post, [51 Cal.3d] p. 180 [271 Cal.Rptr. 146, 793 P.2d 479].)”  (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 152, 271 Cal.Rptr. 146, 793 P.2d 479 (J. Broussard, concur. & dis. opn.).)

19.   The dissent points out that the Court in Moore v. Regents of California, supra, commented in a footnote that a physician is not the patient's financial advisor.   No one is now suggesting that the defendant physicians were required to provide financial advice to Mr. Arato.   But it cannot be ignored that the physician is the patient's source of information regarding his medical condition and health, information which may be critical to many aspects of a person's life.   If not the physician's duty to disclose a terminal illness, then whose?   Especially in the situation where the patient is relying, in fact is encouraged to rely by a written questionnaire, on that source.   Must a patient be suspicious of his own physician on a matter of critical importance?

20.   In Berkey v. Anderson, supra, 1 Cal.App.3d 790, 82 Cal.Rptr. 67, concerning informed consent to conduct a myelogram, the court said, “We agree with appellant that a physician's duty to disclose is not governed by the standard practice of the physician's community, but is a duty imposed by law which governs his conduct in the same manner as others in a similar fiduciary relationship.   To hold otherwise would permit the medical profession to determine its own responsibilities to the patients in a matter of considerable public interest.”  (Id., at p. 805, 82 Cal.Rptr. 67.)

1.   I note that the reference to plaintiffs is not technically correct.   Due to the voluntary dismissal of the wrongful death cause of action and the court's involuntary dismissal of the remaining causes of action, except for the negligence count, the only remaining plaintiff in the case is the decedent's surviving spouse, acting in her capacity as the decedent's personal representative.  (Probate Code, § 573.)

2.   The other instructions proposed by plaintiffs either misstated the law, had no application to this case or were essentially included in instructions which were given.   Therefore, they were all properly rejected.   It is not clear from either the briefs or the majority opinion whether any claim of error is made for the trial court's refusal to give these instructions.1. BAJI 6.00.1 and Special Instruction No. 14 were inappropriate instructions regarding a physician's duty to third persons.   This instruction is based upon Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 193 Cal.Rptr. 733 which involved a doctor's duty to care for a patient in a manner which protected third persons from reasonably foreseeable harm (e.g., prescribing medications without warning patient about impact on ability to operate a motor vehicle may result in liability to those third persons subsequently injured in an automobile accident with the patient);2.  Neither BAJI 6.05 (which relates to the duration of a physician's duty to a patient) nor BAJI 6.10.5 (which relates to treatment or operation without consent) has any application to this case;3.  BAJI 6.11.5 describes a physician's duty to disclose information with respect to diagnostic tests;  this case involved treatment not diagnostic tests and was thus fully covered by BAJI 6.11;4.  Special Instruction Nos. 6, 7, and 8 all proposed instructions which were essentially covered by BAJI 6.11;5.  Special Instruction Nos. 2 (on contributory negligence of patient) and 3 (on fraudulent concealment) related to matters which were not in issue in this case;6.  Special Instruction No. 9 defined the term “fiduciary duty”;  this instruction, taken from Black's Law Dictionary, 4th Edition, might well be appropriate in a commercial lawsuit, but has no application here;  and7.  Special Instruction Nos. 11 and 12 were “directed verdict” instructions which were properly rejected.

3.   The plaintiffs requested that the jury be told that, a “physician has a fiduciary duty to a patient to make a full and fair disclosure to the patient of all facts which materially affect the patients rights and interests.”   While this introduction is similar to language in Bowman v. McPheeters, supra, 77 Cal.App.2d at p. 800, 176 P.2d 745, plaintiffs seek to have it applied it in an entirely different context.   In addition, it goes beyond the characterization of the disclosure requirements set out in Cobbs v. Grant, supra, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 and is contrary to the court's comments in Moore v. Regents of University of California, supra, 51 Cal.3d at p. 120, 271 Cal.Rptr. 146, 793 P.2d 479.

4.   This second instruction was, “The scope of the physician's duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice.   All information material to a patient's decision should be given.”   The majority does not explain why this instruction was not already adequately covered by instructions which were given.

5.   I leave aside the abundant evidence of advice that both decedent and his wife were repeatedly given of the doctors' concern that his disease was incurable and that the recommended treatment might not be successful.   If the jury instructions were adequate, there is more than sufficient evidence to support the jury's verdict.

6.   As the majority summarized plaintiffs' claims, the business affairs were apparently limited to an electrical contracting business which was not sold and the purchase of two parcels of commercial property which required decedent's expertise to develop.   Plaintiffs claimed that these properties were subsequently sold at a loss three years after decedent's death.   No evidence was offered, however, that any loss or damage resulted from these events during decedent's lifetime.

7.   It is worth emphasizing that plaintiffs voluntarily dismissed their wrongful death action and make no claim here that defendants were in any way legally responsible for decedent's death.

8.   In Cobbs, the Supreme Court concluded its opinion with the statement that “A disclosure need not be made beyond that required within the medical community when a doctor can prove by a preponderance of the evidence he relied upon facts which would demonstrate to a reasonable man the disclosure would have so seriously upset the patient that the patient would not have been able to dispassionately weigh the risks of refusing to undergo the recommended treatment.”  (Cobbs v. Grant, supra, 8 Cal.3d at p. 246, 104 Cal.Rptr. 505, 502 P.2d 1;  emphasis added.)

9.   Much is made of the fact that decedent had checked a box on a medical form indicating that he wanted to be told the “truth” about his condition.   However, no contention is made here that defendants in any way lied to decedent.   The claim is that he was not told, in specific detail, his statistical or percentage chances of surviving for six months, one year or five years;  nor, plaintiffs complain, was he told about any opinions which the defendants may have held as to his chances of surviving for such particular periods.   In short, he was not given specific numerical life expectancy information.   Defendants' failure to provide such information to decedent, which might well have caused significant harm (there was substantial evidence to support such a concern), did not constitute a breach of the obligation to tell the “truth.”

10.   After all, if no evidence was presented as to recoverable damages, then plaintiffs are not entitled to a reversal of the trial court's judgment even if the claimed errors on which majority expends so much discussion would otherwise have justified such a result.   Perhaps this is the reason plaintiffs did not discuss this issue in their briefs on appeal.

11.   The majority states, “the failure to disclose life expectancy information could have resulted in actions as well as inactions by Mr. Arato which resulted in losses to him.   Mr. Arato sustained financial loss if he was unable to take steps to protect his estate during the last stages of his illness.   He also incurred losses when he was no longer able to manage projects which required his skill and knowledge.”  (Emphasis added.)   Incredibly, the majority simply assumes these statements to be true.   Plaintiffs did not claim or offer evidence to support such losses.

HINZ, Associate Justice

KLEIN, P.J., concurs.