On March 9, 2009, plaintiff Keith Brown, 29, a regional sales manager for RSI Home Products, underwent a functional endoscopic right maxillary antrostomy, with a right polypectomy and removal of tissue. The procedure was performed by Dr. Lorre Henderson, an otolaryngologist. Brown previously saw his primary care physician on Jan. 9, 2009, with complaints of an obstruction in his right nasal passage. He claimed the obstruction grew to the point where it was poking out of the end of his right nostril and when he attempted to remove the obstruction with tweezers, he started bleeding. Upon examination, Brown was found to have a complete obstruction of the right nasal passage from what appeared to be a cyst. As a result, he was put on medication and referred to Henderson for further evaluation and recommendation as to treatment. When Brown first saw Henderson on Feb. 3, 2009, he explained that the cyst would enlarge at times, getting very close to the front of his nostril, that he experienced bleeding from time to time, and that his congestion would get worse when he would lie down. Upon examination, Henderson noted a very large polyp occupying about two-thirds of the upper right nasal airway, wedged between the inferior turbinate and the septum. He also found that the turbinates were moderately congested bilaterally. As a result, Henderson gave Brown a prescription of topical steroids to use in each nostril every morning and evening to help shrink the tissue around the polyp, which hopefully would provide some interim relief for his difficulty breathing. He also told Brown that he would need to get a CT scan of the paranasal sinuses in order to further evaluate the polyp. Brown then returned to Henderson on Feb. 17, 2009, when they reviewed the CT scan images of the paranasal sinuses, which revealed the polyp occupying almost the entire right maxillary sinus, extending into the right side of the nasal cavity, causing an obstruction of the ostiomeatal unit complex on the right. Based on this finding, Henderson discussed the need to perform surgery to remove the polypoid tissue from the maxillary sinus and right nasal passage. He explained that he would use a machine called a microdebrider to cut and suck the polyp as he progressed up the right nasal passage and into the right maxillary sinus. Henderson performed the functional endoscopic right maxillary antrostomy, with a right polypectomy and removal of tissue, on March 9, 2009. The surgery was uneventful up to the point where the opening to the maxillary sinus needed to be enlarged. Henderson claimed he removed tissue up to the opening, was able to visualize the area, and then took steps to make the opening bigger so as to allow the microdebrider to enter into the maxillary sinus for removal of the remaining portion of the polyp, which was occupying most of that space. In order to make it bigger, Henderson used various cutting instruments to remove pieces of the edge around the opening. Once the hole was big enough, he visualized where the polyp had last been seen and placed the microdebrider in that location, at which time he saw Brown’s eye move and immediately stopped the procedure. Henderson turned off the suction and cutting functions of the microdebrider and used the tip of the instrument to poke the area, at which time he could see the eye moving, which indicated that the microdebrider was in contact with the orbital contents of the right eye and was not in a place where it was supposed to be. As a result, he withdrew the cutting instrument and used the scope to visualize the area, at which time he noticed a small piece of tissue protruding from the area where he had been working. He then used a punch forcep to remove a small piece of tissue and determined that it was orbital fat. The surgery was terminated at that time. Brown was then taken to the recovery room, and was given steroids to help reduce post-operative swelling and reduce the risk of permanent injury to the eye from edema. While in the recovery room, Henderson noticed that Brown’s pupil was slightly dilated and irregular. He subsequently contacted an ophthalmologist who was working in an adjacent operative suite and asked her to examine Brown. The ophthalmologist noted that there were restrictions in Brown’s up-and-down gaze on the right side, but because of the effects of the anesthesia, her ability to perform a complete examination was impaired. Thus, she asked Brown to come to her office the following day for further evaluation. Brown was then discharged from the surgery center with a scheduled appointment for an ophthalmologic follow up the following day. On March 10, 2009, Brown saw the ophthalmologist and complained of feeling like he was “seeing through a prism” and seeing “triple and sideways.” He also complained of pain when opening his right eye, sensitivity to light, and having trouble focusing with both eyes. The ophthalmologist again found restrictions in Brown’s up-and-down gazing on the right side. She suspected an orbital floor entrapment and suggested a CT scan of the orbit to assess for a possible “blow-out fracture”. Brown was then instructed to wear a patch over the right eye to assist with diplopia (double vision). After the visit, the ophthalmologist told Henderson that if Brown’s orbital floor needed repairing, it should be done in about six weeks. Henderson saw Brown again on March 17, 2009, at which time Brown complained of diplopia with aching in the right eye, for which he was continuing to wear an eye patch. Henderson claimed he encouraged Brown to continue on tapering his steroids and he ordered a CT scan of the paranasal sinuses to be done in two weeks. Henderson claimed he briefly discussed with Brown the possibility of placing an implant in the right orbital wall, where Brown was suspected to have a hole. On March 31, 2009, a CT scan was performed that showed an absence of the lamina papyracea (i.e. a hole in the wall of the orbit) and a herniation of intraorbital fat into the right ethmoid sinus. The soft-tissue herniation measured approximately 1-centimeter by 1-centimeter and contained mostly fat, without any muscle herniation. On April 7, 2009, Brown returned to Henderson with continued complaints of diplopia, for which he was wearing a patch, as well as pain in the right eye, especially when looking to the right. However, Brown claimed that breathing through the right nostril was markedly improved. The results of the prior CT scan were discussed, at which time Henderson told Brown that the hole in the orbit could have been made by the microdebrider he was using during the surgery on March 9, 2009. He also told Brown that an orbital exploration with stenting of the hole might be necessary as this could be what was causing the pain and diplopia. Brown returned to Henderson on May 5, 2009, again complaining of ongoing diplopia and stating that he was still wearing a patch because of the inability to fuse visual objects. Henderson’s examination revealed restrictions in movement of the right eye, and he recommended an orbital exploration with stenting of the area where the hole in the orbital wall was seen on the CT scan. Henderson claimed that he explained to Brown that he would use a transorbital approach through a conjunctival incision and insert Silastic sheeting to cover the defect. Henderson performed the procedure on Brown at Sutter Fairfield Surgery Center on May 22, 2009. The surgery was accomplished by making an incision through the palpebral conjunctiva and elevating the eyeball away from the defect in the orbital wall. When the defect was encountered, it was measured to be approximately 18-millimeters by 12-millimeters in size and the herniated portion of the tissue was teased out of it. A portion of Silastic sheathing was cut in an L-shape and placed into the orbit over the defect. The procedure was allegedly completed without complication. Post-operatively, Brown continued to follow up with Henderson. On May 29, 2009, Brown reported that the twisted appearance objects had when viewed with his right eye was gone, although he still had some diplopia. Upon examination, the globe moved freely, but was still oriented in a somewhat lateral position. On upward gaze, there was still external rotation of the eye. During a visit with Henderson on June 12, 2009, Brown continued to complain of double vision and having some unusual perception of vision in the right eye when compared to the left; however, the right eye was moving without pain. Brown’s wife complained at that visit that her husband’s right eye seemed to be sunken in the socket. As a result, Henderson recommended that Brown be referred to a pediatric ophthalmologist for consultation on a potential strabismus surgery. Brown sued Henderson and his employer, Sutter Medical Group (formally Sutter Regional Medical Group and initially erroneously sued as Sutter Regional Medical Foundation). Brown alleged that the Henderson failed to obtain his informed consent and was negligent in his treatment. He also alleged that Henderson’s actions constituted professional negligence and medical malpractice and that Sutter Medical Group was vicariously liable for the acts and omissions of Henderson. Brown’s counsel argued that Henderson negligently performed the endoscopic sinus surgery on March 9, 2009, wherein a large hole was made in the orbital wall by a surgical instrument (the microdebrider), leading to an injury to Brown’s right eye and permanent visual impairment. Counsel also argued that Henderson was negligent in the performance of the stenting procedure on May 22, 2009, to repair the hole in the orbital wall and to elevate the eye in the socket, leading to further functional and cosmetic problems with the right eye. On the issue of informed consent, Brown’s counsel argued that Henderson failed to adequately inform Brown of the risks, benefits and alternatives prior to the polyp resection performed on March 9, 2009, specifically that Henderson did not advise Brown about the risk of an eye injury from the microdebrider. Brown acknowledged that Henderson discussed the March 9, 2009 procedure with him, as well as discussed the risks and benefits with him, and that he wanted to proceed. He claimed that while he did not recall all of the risks that were discussed with him at the time of this meeting, he insisted that the risk of injury to the eye was never discussed with him. However, he claimed that even if he had been told about the risk of an eye injury, he could not say whether he would have refused to undergo the surgery. Brown’s counsel also argued that Henderson failed to obtain adequate informed consent for the stenting procedure performed on the right eye on May 22, 2009, in that Henderson did not advise Brown that the surgery may not correct the problems he was having with his vision and that it would potentially make the function and appearance of the eye even worse. Defense counsel argued that Henderson properly performed both procedures and that Brown was fully informed of the risks and benefits of both surgical procedures and that Brown fully consented to both. Specifically, counsel contended that by signing the written “Consent for Surgery, Anesthesia and Other Procedures” form, Brown acknowledged that the nature, purpose and material risks, complications, and consequences of the operation, as well as its alternatives, had been explained to him by Henderson and that all questions Brown had concerning the procedure had been answered. Counsel also contended that signing the form authorized Henderson to perform the functional endoscopic right maxillary antrostomy, with a right polypectomy and removal of tissue. Defense counsel further contended that by Brown signing the “Consent for Surgery” form, it affirmed that Brown understood that the explanations and answers he had received were not necessarily exhaustive and that other, more remote risks, complications, or consequences may arise. Henderson contended that in his office notes, prior to the surgery on March 9, 2009, it was documented that “the risks and benefits of the surgery were discussed with [Brown] and [that] the patient wants to proceed with this.” He testified that the risks he discussed with Brown included bleeding, pain, infection and injury to the eye. Specifically, Henderson claimed that as part of his discussion with Brown, he used a poster on the wall of the examination room that showed the nasal passage and that he described that he would use a machine called a microdebrider to cut and suck the polyp as he progressed up the right nasal passage and into the right maxillary sinus. He also claimed that he showed Brown on the poster that he would be operating in close proximity to the right orbital wall. As to the surgery on May 22, 2009, Henderson claimed he discussed the same risks that were discussed with Brown before the surgery on March 9, 2009. He noted that Brown signed a written “Consent for Surgery, Anesthesia and Other Procedures,” which allegedly reflected Brown’s consent to a right orbital exploration with stenting of the right orbital wall defect using a possible endoscopic approach. He also claimed that it memorialized that the risks, benefits and alternatives were discussed with Brown. In addition, Henderson claimed that no alternatives were discussed, as there was no other procedure that would address the problem Brown was having with his right eye. In response, Brown’s counsel contended that on the written “Consent for Surgery” form, it specifically mentioned certain risks, including infection, cardiac arrest, respiratory arrest, embolism, and blood loss, as well as a reaction to the administration of anesthesia, diagnostic agents, or medications and that these could possibly cause permanent disability or death. However, counsel argued that this consent form did not mention anything about a risk of injury to the eye. Thus, Brown’s counsel argued that this was evidence that the risk of eye injury was never discussed with Brown., The trial was bifurcated. Damages were not before the court. Brown returned to Henderson one week after the procedure on May 22, 2009, claiming that although the twisted appearance objects had when viewed with his right eye were gone, he still had some diplopia. Upon examination, the globe moved freely, but was still oriented in a somewhat lateral position, and on upward gaze, there was still external rotation of the eye. During a visit with Henderson on June 12, 2009, Brown continued to complain of double vision and having some unusual perception of vision in the right eye when compared to the left. Brown’s wife also complained that her husband’s right eye seemed to be sunken in the socket. Brown was ultimately determined to be suffering from strabismus, or heterotropia, a misalignment of the eyes. As a result, Henderson recommended that Brown be referred to a pediatric ophthalmologist for consultation on a potential strabismus surgery. Brown sought recovery of medical costs and damages for his pain and suffering. His wife, Myeshia Brown, sought recovery of damages for her loss of consortium.