Lindgren v. Chang CA4/1

Filed 10/23/26 Lindgren v. Chang CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA DEBRA LINDGREN, D085410, D085960 Plaintiff and Appellant, v. (Super. Ct. No. 37-2021- 00000343-CU-MM-CTL) ANGELA A. CHANG, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Diego County, Robert C. Longstreth, Judge. Reversed with instructions. Singleton Schreiber and Benjamin I. Siminou for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson; Schmid & Voiles, Kyle A. Cruse and Robert B. Fessinger, for Defendant and Respondent.  I. INTRODUCTION David and Debra Lindgren1 sued Dr. Angela A. Chang for medical malpractice and loss of consortium. A jury found in Dr. Chang’s favor, determining that she did not breach her duty of care. On appeal, Debra, who has been substituted in David’s place after his death, asserts the trial court failed to instruct the jury properly. She claims that in addition to ordinary medical negligence, the trial court should have instructed the jury on her theory of informed refusal.2 Debra also appealed from the trial court’s postjudgment award of costs to Dr. Chang as the prevailing party; we consolidated that issue with her initial appeal. Substantial evidence supports Debra’s informed refusal theory, so the trial court erred in refusing to instruct the jury on that issue. We therefore reverse the judgment and remand for a new trial on the informed refusal claim. Based on our reversal of the judgment, we also vacate the cost award. II. BACKGROUND A. Factual Background David was diagnosed with tonsillar cancer in 2012 and was successfully treated with chemoradiation and tumor resection. He continued to see 1 We refer to the Lindgrens by their first names for clarity and not out of disrespect. 2 The “ ‘informed refusal’ doctrine . . . describes a physician’s responsibilities to a patient when that patient refuses diagnostic testing before a diagnosis is made and treatment recommended.” (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 736 (Moore).) At times, Debra refers to the doctrine as “informed referral,” but we decline to adopt that terminology. 2 specialists for cancer screenings, and by 2016, there were no signs of the cancer’s recurrence. Dr. Chang, an ear, nose, and throat specialist, began treating David in 2018. In May of 2019, David reported a sore throat and weight loss to Dr. Chang. Concerned that David may have cancer, Dr. Chang ordered a PET-CT scan. David underwent the scan on June 3, 2019, and two radiologists prepared a report analyzing the images. The impression portion of that report ruled out any recurrence of David’s prior tonsillar cancer.3 It also stated, “Proximal esophageal hypermetabolic activity and right posterior nasopharyngeal hypermetabolic activity, most likely posttreatment changes. Consider correlation with direct visualization. Alternatively, consider MRI neck soft tissue without and with contrast.” Dr. Chang called David on June 5, 2019, to discuss the PET-CT scan results. The details of that discussion are disputed, and as the trial court noted, they are “the heart of this case.” Dr. Chang memorialized the call in a note which states, “[d]iscussed PET results with patient. Recommend [gastroenterologist follow-up] with Dr. Paredez for evaluation of hypermetabolic area in proximal esophagus.” When testifying at trial, Dr. Chang did not remember the exact words she spoke during the call. Based on her customary practice, she believed she would have repeated the impression portion of the PET-CT scan report verbatim. Dr. Chang explained that she referred David to a gastroenterologist to “evaluate and treat” David, “specifically to look at the area of abnormality in the esophagus,” because she did not know what was causing it and that issue was beyond the scope of her practice. 3 An impression in a medical report is a summary of the main points. 3  Based on the radiological impression of the PET-CT scan report, to which Dr. Chang deferred, Dr. Chang believed the hypermetabolic activity in David’s esophagus was benign. In subsequent reports dated December 6, 2019, and January 7, 2020, Dr. Chang documented that the PET-CT scan as “negative,” meaning there were no signs of cancer. However, Dr. Chang knew that David’s symptoms and increased hypermetabolic activity could signify cancer. Indeed, Dr. Chang ordered the PET-CT scan to screen David for cancer, and cancer was on Dr. Chang’s differential diagnosis4 after she read the scan results. But Dr. Chang did not notify David of that risk because it “was . . . a low possibility at [that] point.” Dr. Chang further testified that she would not have told David he was cancer free because she has never said that to a patient. She also stated she would not have referred David to a gastroenterologist for acid reflux because she treats that condition. When David testified, he described the June 5, 2019 phone call differently. According to David, Dr. Chang told him he did not have cancer and suggested that he see Dr. Paredez for acid reflux. Dr. Chang did not recommend that Dr. Paredez conduct a direct visualization of his esophagus, and if she had, David would have “run to the doctor.” David scheduled an appointment with Dr. Paredez to occur sometime in August. However, he did not keep that appointment because he began taking acid reflux medicine prescribed by his primary care physician and his symptoms improved. 4 A differential diagnosis identifies the possible conditions that could explain a patient’s symptoms before a final diagnosis is made. 4  David began seeing a different gastroenterologist, Dr. John Kuldau, in December of 2019. Dr. Kuldau performed a series of tests on David’s esophagus and found a cancerous tumor during a January 14, 2020 endoscopy. David underwent a tracheotomy, radiation, chemotherapy, and ultimately had his voice box removed. While this appeal was pending, David decided to forgo additional surgery and instead transitioned to hospice care. David died on October 15, 2025. B. Procedural History In 2021, the Lindgren’s sued Dr. Chang for medical malpractice and loss of consortium. The Lindgren’s alleged that Dr. Chang failed “to appropriately examine, evaluate, diagnose, treat, and/or test [David] for head and neck cancer and/or refer [David] for treatment of same.” They further alleged that Dr. Chang’s negligence caused a delayed cancer diagnosis, which allowed David’s cancer to spread, shortened his life expectancy, and caused significant injuries. At trial in 2024, both parties presented conflicting expert testimony as to whether Dr. Chang breached her duty of care to David. David’s experts opined that his symptoms combined with the PET-CT scan results should have been treated as cancer until proven otherwise. Dr. Chang and her expert acknowledged that cancer was a possibility under the circumstances, but they believed the chances of that were extremely low. Both parties also presented competing expert testimony on whether the delay in treating David’s esophageal cancer from the June 5, 2019 phone call to the January 14, 2020 diagnosis caused David’s injuries. In their trial brief, the Lindgrens asserted their intention to pursue two theories of liability against Dr. Chang: ordinary medical negligence and 5 informed refusal. Under the informed refusal theory, the Lindgrens argued that Dr. Chang breached her duty to disclose the risks of declining her referral to a gastroenterologist. In response to Dr. Chang’s objections that informed refusal had not been pleaded, the Lindgrens sought leave to amend their complaint during trial. The Lindgrens also proposed several modified CACI jury instructions regarding informed refusal. They submitted two versions of CACI No. 534, which defines the informed refusal doctrine.5 One version was titled “Informed Referral,” while the other was titled “Informed Refusal.” Both proposals modified the standard instruction as follows: A physician [or ENT] must explain the risks of refusing a procedure not following a recommended referral for treatment in language that the patient can understand and give the patient as much information as he needs to make an informed decision, including any risk that a reasonable person would consider important in deciding not to have [a/an] [insert medical procedure] accept the referral for treatment. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure recommendation is refused. A physician [or ENT] is not required to explain minor risks that are not likely to occur. As for the elements of their informed refusal claim, the Lindgrens submitted two options. A modified version of CACI No. 533, the standard instruction for the elements of informed consent, as well as a modified 5 Modifying CACI No. 532, the standard instruction defining informed consent, the Lindgrens also proposed a third instruction defining informed refusal. 6 version of CACI No. 535, the standard instruction for the elements of informed refusal.6 Finally, the Lindgrens sought to modify CACI No. 502, which governs the standard of care in medical negligence cases. They proposed an instruction that added the following underlined paragraph to the standard instruction: Except as to Plaintiffs claim in CACI 533 and CACI 534 regarding defendant’s alleged failure to disclose all relevant information necessary for the plaintiff to make an informed decision to see a gastroenterologist, you are instructed that: An ENT is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful ENTs would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as "the standard of care." You must determine the level of skill, knowledge, and care that other reasonably careful ENTs would use in similar circumstances based only on the testimony of the expert witnesses who have testified in this case. The Lindgrens proposed a second version of CACI No. 502 which similarly excluded the expert testimony requirement from “Plaintiff’s claim under CACI 533 and CACI 534 regarding informed referral to a specialist.” Finding the theory inapplicable, the trial court refused to instruct the jury on informed refusal and did not grant the Lindgrens leave to amend 6 We acknowledge that Debra has not challenged the trial court’s refusal to instruct the jury with these two instructions (CACI Nos. 533 & 535) or her proposed version of CACI No. 532. However, we do not construe this as a waiver of Debra’s claims as Dr. Chang appears to suggest. 7 their complaint. Instead, the trial court instructed the jury on ordinary medical negligence. The jury returned a special verdict in favor of Dr. Chang, finding that she was not negligent in the diagnosis or treatment of David. The trial court entered judgment in Dr. Chang’s favor on November 8, 2024, and the Lindgrens timely appealed. The trial court awarded Dr. Chang costs as the prevailing party, and the Lindgrens appealed from that order as well (case No. D085960). This court consolidated the two appeals. III. DISCUSSION A. Standard of Review “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Drury v. Ryan (2025) 109 Cal.App.5th 1102, 1109.) “ ‘A trial court generally may refuse to give any instruction that is not entirely correct. Nevertheless, when a proposed instruction addresses an issue that is crucial to a fair presentation of the case to the jury, the trial court has the obligation to give an appropriate instruction on that issue, not necessarily in the wording of the proposed instruction.’ ” (Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 24.) “We independently review claims of instructional error viewing the evidence in the light most favorable to the appellant.” (Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333.) B. The Trial Court Erred in Refusing the Lindgrens’ Proposed Modification to CACI No. 534 Debra argues the trial court erred in refusing her modifications to CACI No. 534. She claims the jury should have been instructed on informed refusal because Dr. Chang recommended a medical procedure; namely, direct 8 visualization of David’s esophagus. Debra also contends that the informed refusal doctrine applies whenever a doctor refers a patient to a specialist. Dr. Chang argues that informed refusal does not apply because she did not recommend any procedures and David never indicated we would decline the referral. Dr. Chang also claims “informed referral” is not a recognized theory, and the Lindgrens failed to timely raise that issue in the trial court. We find sufficient evidence of Debra’s informed refusal theory existed to give an informed refusal instruction. 1. Informed Refusal “This case turns on the interrelationship between two duties of a physician—namely, a physician’s duty of care and a physician’s duty to obtain his [or her] patient’s informed consent to medical procedures.” (Flores v. Liu (2021) 60 Cal.App.5th 278, 290.) Under the duty of care, (i.e. ordinary medical negligence), a physician must “ ‘use such skill, prudence and diligence as other members of his [or her] profession commonly possess and exercise.’ ” (Ibid.) On the other hand, “[t]o comply with the duty to obtain a patient’s informed consent, a physician must ‘disclose to the patient all material information—that is, “information 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.” ’ ” (Flores v. Liu, supra, 60 Cal.App.5th at pp. 292–293.) Within informed consent principles exists the “ ‘informed refusal’ doctrine,” under which “a doctor has a duty to disclose all material information to his patient which will enable that patient to make an informed decision regarding the taking or refusal to take [diagnostic] test[ing].” (Moore, supra, 178 Cal.App.3d at p. 736.) 9  There are certain “ ‘minimal’ disclosures that are always material,” including “ ‘the risks involved in accepting [and] rejecting [each] proposed [procedure],’ particularly the ‘potential of death or serious harm.’ ” (Flores v. Liu, supra, 60 Cal.App.5th at p. 293.) “ ‘If the physician knows or should know of a patient’s unique concern or lack of familiarity with medical procedures, this may expand the scope of required disclosure.’ ” (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 845.) In general, the duty of disclosure under the informed refusal doctrine “is predicated upon a recommended treatment or diagnostic procedure.” (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1069, 1070.) It may also arise when a doctor adheres to one of several conflicting schools of thought. (Id., at p. 1071 & fn. 5.) In contrast, “the failure to recommend a procedure must be addressed under ordinary medical negligence standards.” (Id. at p. 1070.) For example, in Moore, an internist strongly recommended that a patient see a specialist about a mole on his ear because it was suspicious and its exact nature would not be known until it was removed or studied microscopically. (Moore, supra, 178 Cal.App.3d at p. 735.) The patient did not immediately heed the internist’s advice, and when the mole was subsequently discovered to be cancerous, extensive surgery was required. (Id. at pp. 734–735.) Under the informed refusal doctrine, the court in Moore held that the internist had “a duty to disclose to [the patient] all material information which would enable [him] to make an informed decision whether to see the specialist or not,” including “the risk to [the patient] if he was not examined by the specialist.” (Id. at p. 738.) The court in Moore noted that “[t]his is not a case in which no diagnostic testing was recommended,” because the internist told the patient 10 “the mole should be removed or studied microscopically so that it could be properly diagnosed.” (Moore, supra, 178 Cal.App.3d at p. 738, fn. 4.) The Moore court also rejected the internist’s argument that informed refusal was inapplicable because he “was merely the referring physician and had no reason to suppose [the patient] would not take his advice to see a specialist.” (Id. at p. 738.) Without knowledge of the risks involved in not seeing the specialist, the patient “was not in a position to make an informed decision concerning the doctor’s recommendation. The fact [the internist] was not going to do the actual diagnosis underscores the importance of relaying this information to [the patient] at the time of his visit. [The internist] would not learn whether [the patient] went to the specialist or refused to heed his advice.” (Id. at pp. 738–739.) On the other end of the spectrum is Scalere v. Stenson (1989) 211 Cal.App.3d 1446, 1448 (Scalere), where a patient reported pain and discomfort after brachial artery surgery. The surgeon examined the patient and did not recommend any further treatment because he believed that the patient was progressing satisfactorily. (Ibid.) About a year later, the patient required additional surgery on her brachial artery “with resultant damage.” (Ibid.) The court in Scalere held that because the surgeon did not propose any therapy, procedure, or diagnostic testing, the informed refusal doctrine did not apply. (Id. at pp. 1449–1451.) The Scalere court noted that the surgeon “could hardly ‘disclose’ what he did not believe,” and that “ ‘[n]egligent failure to advise a patient to pursue a potentially necessary course of treatment is actionable under ordinary medical negligence standards.’ ” (Id. at p. 1453.) 11  2. Analysis Dr. Chang testified that she referred David to a gastroenterologist to “evaluate and treat” David, “specifically to look at the area of abnormality in the esophagus.” According to her custom and practice, Dr. Chang would have read the radiologists’ impression from the PET-CT scan report verbatim to David. Thus, she would have told David to “[c]onsider correlation with direct visualization. Alternatively, consider MRI neck soft tissue without and with contrast.” Multiple doctors told the jury that “direct visualization” referred to viewing the esophagus with a camera, as during an endoscopy. Additionally, an MRI is an imaging procedure. Viewing these facts favorably to Debra as we must, there is sufficient evidence that Dr. Chang referred David to a gastroenterologist to undergo a procedure. Unlike Scalere, Dr. Chang did in fact recommend further treatment. And although Dr. Chang may not have selected a specific procedure or diagnostic test, she suggested direct visualization or an MRI, which are methods which, if used in this situation, would assist in diagnosis of problems in David’s esophagus. We see no material difference between this case and Moore, where the internist recommended that the patient’s mole “be removed or studied microscopically so that it could be properly diagnosed.” (Moore, supra, 178 Cal.App.3d at p. 738, fn. 4.) Because we find sufficient evidence that Dr. Chang recommended a procedure, we do not reach Debra’s claim that informed refusal broadly applies to specialist referrals, nor do we adopt Debra’s “informed referral” terminology. However, while not endorsing the wording change, here the references to “informed referral” in Debra’s proposed instructions would likely be insignificant to jurors’ understanding of the concept. And while not 12 ideal, replacing “refusing a procedure” with “not following a recommended referral for treatment” in CACI No. 534 made little difference in this instance. These modifications fit squarely within the facts of this case as well as the holding of Moore. Additionally, Dr. Chang knew that David’s symptoms and increased hypermetabolic activity could signify cancer. Although Dr. Chang believed “[c]ancer was a low possibility,” one potential harm in failing to detect the disease was death, bringing the matter within the minimal disclosures that are always material. (Flores v. Liu, supra, 60 Cal.App.5th at p. 293; see also, Truman v. Thomas (1980) 27 Cal.3d 285, 293 [applying informed refusal doctrine where the probability of cancer was low but “the potential harm of failing to detect the disease at an early stage was death”].) David also had a “ ‘unique concern’ ” for cancer, which “ ‘may expand the scope of required disclosure.’ ” (Jambazian v. Bordeen, supra, 25 Cal.App.4th at p. 845.) Further, as was the case in Moore, without knowledge of the risk of cancer, David “was not in a position to make an informed decision concerning [Dr. Chang’s] recommendation,” and “[t]he fact [Dr. Chang] was not going to do the actual diagnosis underscores the importance of relaying this information to [David] at the time of his visit.” (Moore. at pp. 738–739.) Any lack of refusal by David during the June 5, 2019 phone call, therefore, does not necessarily defeat the informed refusal doctrine as Debra suggests. Finally, although Debra did not assert her informed refusal theory until shortly before trial, that theory still should have been presented to the jury because Dr. Chang has not shown prejudice from the delay. “Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown.” (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 13 Cal.App.4th 1332, 1345.) “ ‘If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations. . . . If the same set of facts supports merely a different theory . . . no prejudice can result.’ ” (Eng v. Brown (2018) 21 Cal.App.5th 675, 700.) “ ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.’ ” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) As the trial court acknowledged, the sufficiency of Dr. Chang’s communications during the June 5, 2019 call was “the whole case,” “the facts are all going to be in front of the jury on this issue,” and “the facts aren’t a surprise, the theory is a surprise.” The Lindgrens’ informed refusal claim was simply a different theory based on the existing facts and evidence. As discussed below, no additional expert testimony was needed for that new theory because the experts already testified regarding the risk of cancer based on the PET-CT scan and causation, and whether that risk should have been disclosed was a matter for the jury. (Betterton v. Leichtling (2002) 101 Cal.App.4th 749, 756.) We therefore see no prejudice from an amendment that would add an informed refusal theory. Indeed, Dr. Chang failed to assert in her brief or at oral argument any prejudice that she might have suffered from such an amendment. Based on the lack of prejudice or change to any of the underlying facts, the trial court abused its discretion in denying the Lindgrens leave to amend to add the informed refusal theory. In sum, we find sufficient evidence of Debra’s informed refusal theory. The trial court erred in refusing to instruct the jury on that theory with Debra’s modified version of CACI No. 534. 14 C. The Trial Court Erred in Refusing CACI No. 502 Debra claims the jury should have been instructed that expert testimony is not required to establish negligence on informed refusal grounds. Dr. Chang argues that CACI No. 502 as given adequately covered Debra’s negligence claims, and Debra’s modifications to the standard instruction were confusing and erroneous. We find that the trial court should have given a modified version of CACI No. 502 for the informed refusal theory. 1. Expert Testimony in Informed Refusal Cases Because the duty of care in ordinary medical negligence actions “is pegged to what reasonable physicians using such skill, prudence and diligence as other members in the relevant medical community would do, whether that duty was breached ‘ “in a particular case is generally a question for experts” ’ except where ‘ “the matter . . . is . . . within the common knowledge of laymen.” ’ ” (Flores v. Liu, supra, 60 Cal.App.5th at p. 292.) On the other hand, the role of experts in informed refusal cases is different because the physician’s disclosure duties are “pegged to what a ‘reasonable person’ in the patient’s position would deem to be ‘material’ to her medical decisionmaking (rather than being pegged to customs for disclosure in the profession).” (Id. at p. 294.) Accordingly, in informed refusal cases, the trier of fact has a “paramount role,” and experts have a “subsidiary role.” (Arato v. Avedon (1993) 5 Cal.4th 1172, 1184; id. at p. 1191.) “Whether to disclose a significant risk is not a matter reserved for expert opinion. Whether a particular risk exists, however, may be a matter beyond the knowledge of lay witnesses, and therefore appropriate for determination based on the testimony of experts.” 15 (Betterton v. Leichtling, supra, 101 Cal.App.4th at p. 756.) Similarly, “[w]here the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.” (Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1614.) Finally, “ ‘ “a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances.” [Citation.] Therefore, expert testimony is relevant and admissible to determine the duty to disclose matters other than the risk of death or serious harm and significant potential complications.’ ” (Betterton v. Leichtling, supra, 101 Cal.App.4th at pp. 754–755.) 2. Analysis Because there was sufficient evidence to support Debra’s informed refusal theory as discussed above, Debra was also entitled to an instruction informing the jury of an expert’s limited role under that theory. The standard form of CACI No. 502 given in this case failed in that regard because it told the jury that it must determine Dr. Chang’s negligence based solely on expert witness testimony. As for Debra’s modifications to CACI No. 502, Dr. Chang argues that the references therein to Debra’s informed refusal theory are confusing and unclear. We disagree. One of Debra’s versions of CACI No. 502 refers to “Plaintiff’s claim in CACI 533 and CACI 534 regarding defendant’s alleged failure to disclose all relevant information necessary for the plaintiff to make an informed decision to see a gastroenterologist.” The other version of CACI No. 502 likewise referenced “CACI 533 and CACI 534 regarding informed referral to a specialist.” Proposed CACI No. 533 modified the elements of an informed consent claim to reflect Debra’s “informed referral theory,” and proposed versions CACI No. 534 defined that theory. We do not find these 16 cross-instructional references confusing or misleading under these circumstances. Dr. Chang is correct, however, that the proposed versions of CACI No. 502 are incomplete. They except all expert testimony from the informed refusal claim instead of explaining that expert testimony is needed to determine the duty to disclose matters other than the risk of death or serious harm, whether a risk of cancer existed, and whether the delay in treatment caused David’s injuries. (Betterton v. Leichtling, supra, 101 Cal.App.4th at pp. 754–756; Hernandez v. County of Los Angeles, supra, 226 Cal.App.4th at p. 1614.) But the proper role of expert testimony was “crucial to a fair presentation of the case to the jury.” (Veronese v. Lucasfilm Ltd., supra, 212 Cal.App.4th at p. 24.) Without a modified version of CACI No. 502, the jury would have been unaware that it was supposed to determine whether Chang should have disclosed David’s cancer risk without relying on expert testimony. Consequently, despite the wording of Debra’s proposed version of CACI No. 502, the trial court still had an obligation to give an appropriate instruction on the role of expert testimony in Debra’s informed refusal claim. (Veronese v. Lucasfilm Ltd., supra, 212 Cal.App.4th at p. 24.) D. The Trial Court’s Instructional Errors Were Prejudicial “In determining whether instructional error was prejudicial, a reviewing court . . . determine[s] whether it is ‘reasonably probable’ that erroneous instructions misled the jury. [Citations.] ‘A “reasonable probability” in this context “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” ’ ” (Carcamo v. Los Angeles County Sheriff’s Dept. (2021) 68 Cal.App.5th 608, 622.) 17  Several doctors, including Dr. Chang and her expert, testified that there was a chance David had cancer based on his symptoms and the June 2019 PET-CT scan. As such, there was expert testimony establishing a potential for death or serious harm if David did not pursue treatment. The jury found that Dr. Chang did not breach her duty of care under these circumstances, but that was based solely on expert opinion. Had it been instructed on informed refusal, the jury would need to determine whether a reasonable person in David’s position would have wanted to know the risk of cancer. That is a question the jury would decide without the assistance of experts, and there was evidence in Debra’s favor on that issue. Specifically, Dr. Chang testified that she knew David previously had cancer, and she was seeing him to screen for cancer. Additionally, David testified that he told Dr. Chang that he thought he may have cancer based on his symptoms, he wanted the PET-CT scan to check for cancer, if Dr. Chang recommended a direct visualization of his esophagus he would have “run to the doctor,” and if Dr. Chang told him there was a risk of cancer, he would have promptly seen a gastroenterologist. David’s family practitioner, Dr. Dan Harper, testified that David and Debra acted like newlyweds based on their belief the PET-CT scan showed David was cancer free, and David never expressed any reluctance with pursuing medical care. As for causation, there was competing expert testimony regarding whether the delay in treatment produced David’s injuries. But the jury never reached the issue of causation based on its verdict that Dr. Chang did not breach her ordinary duty of care. Under these circumstances, there is more than an abstract possibility that jury would have found in Debra’s favor if instructed on informed refusal. The trial court’s failure to instruct on that theory was therefore prejudicial. 18 Accordingly, we reverse the judgment and remand the matter for a new trial on Debra’s informed refusal theory. E. The Cost Award Is Vacated “ ‘An order awarding costs falls with a reversal of the judgment on which it is based.’ ” (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 263.) Thus, the order awarding costs is vacated. IV. DISPOSITION The judgment is reversed, and the cost award is vacated. The matter is remanded to the trial court for a new trial on Debra’s informed refusal theory. Debra is awarded costs on appeal. RUBIN, J. WE CONCUR: DO, Acting P. J. BERMÚDEZ, J. 19