CACI 530B Medical Battery—Conditional Consent

California Civil Jury Instructions CACI

530B Medical Battery—Conditional Consent

[Name of plaintiff] claims that [name of defendant] committed a medical battery. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] consented to a medical procedure, but only on the condition that [describe what had to occur before consent would be given];

2.That [name of defendant] proceeded without this condition having occurred;

3.That [name of defendant] intended to perform the procedure with knowledge that the condition had not occurred;

4.That [name of plaintiff] was harmed; and

5.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

A patient can consent to a medical procedure by words or conduct.

Directions for Use

Give this instruction in a case of a conditional consent in which it is alleged that the defendant proceeded without the condition having occurred. If the claim is that the defendant proceeded without any consent or deviated from the consent given, give CACI No. 530A, Medical Battery.

Sources and Authority

Battery may also be found if a conditional consent is violated: “[I]t is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 610 [278 Cal.Rptr. 900].)

Battery is an intentional tort. Therefore, a claim for battery against a doctor as a violation of conditional consent requires proof that the doctor intentionally violated the condition placed on the patient’s consent. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498 [21 Cal.Rptr.3d 36], internal citations omitted.)

“[T]he reason why CACI No. 530B has an explicit intent and knowledge requirement and CACI No. 530A does not is clear. The law presumes that ‘[w]hen the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.’ That situation is covered by CACI No. 530A. On the other hand, in a case involving conditional consent, the requisite element of deliberate intent to deviate from the consent given cannot be presumed simply from the act itself. This is because if the intent element is not explicitly stated in the instruction, it would be possible for a jury (incorrectly) to find a doctor liable for medical battery even if it believed the doctor negligently forgot about the condition precedent.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d 559], internal citation omitted.)

“Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71 Cal.Rptr.3d 469].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 459–740
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11–9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.25 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical Malpractice, § 175.28 et seq. (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)