Daum

In Cobbs v. Grant (1972) 8 Cal.3d 229 [ 104 Cal.Rptr. 505 , 502 P.2d 1 ] (Cobbs), and Arato v. Avedon (1993) 5 Cal.4th 1172 [ 23 Cal.Rptr.2d 131 , 858 P.2d 598 ] ( Arato), our Supreme Court established a carefully limited role for expert testimony in determining the scope of a physician’s duty to disclose information to a patient before undertaking a medical procedure. In neither of those cases was the court presented with a legislatively prescribed disclosure. Here we hold that when the duty to disclose certain information is imposed by statute or regulation, it is error to require the jury to consider only expert testimony in determining whether communication of that information was necessary for the patient’s informed consent. Further, in view of the limitations discussed in Cobbs and Arato , we hold a jury may not be restricted to considering expert opinion in determining whether the timing and method of a physician’s disclosure was adequate.

Appellants Edwin and Michele Daum sued SpineCare Medical Group, Inc., and Drs. John Pletz and Noel Goldthwaite (collectively, SpineCare) for medical malpractice. The action arose out of unsuccessful spinal fusion surgery on Mr.…