CACI 532 Informed Consent—Definition

California Civil Jury Instructions CACI

532 Informed Consent—Definition

A patient’s consent to a medical procedure must be “informed.” A patient gives an “informed consent” only after the [insert type of medical practitioner] has adequately explained the proposed treatment or procedure.

[A/An] [insert type of medical practitioner] must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. [A/An] [insert type of medical practitioner] must give the patient as much information as [he/she/nonbinary pronoun] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. [A/An] [insert type of medical practitioner] is not required to explain minor risks that are not likely to occur.

Directions for Use

This instruction should be read in conjunction with CACI No. 533, Failure to Obtain Informed Consent—Essential Factual Elements. Do not give this instruction with CACI No. 530A, Medical Battery, or CACI No. 530B, Medical Battery—Conditional Consent. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71 Cal.Rptr.3d 469].)

If the patient is a minor or is incapacitated, tailor the instruction accordingly. If a medical practitioner knows or should know of a patient’s unique concerns or lack of familiarity with medical procedures, this knowledge may expand the scope of required disclosures and require additional instructional language. (See Truman v. Thomas (1980) 27 Cal.3d 285, 291 [165 Cal.Rptr. 308, 611 P.2d 902].)

Also, see CACI No. 531, Consent on Behalf of Another.

Sources and Authority

“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.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242 [104 Cal.Rptr. 505, 502 P.2d 1].)

“ ‘[A] physician has a fiduciary duty to disclose all information material to the patient’s decision,’ when soliciting a patient’s consent to a medical procedure. A cause of action premised on a physician’s breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent.” (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1164 [155 Cal.Rptr.3d 755], internal citations omitted.)

“When a doctor recommends a particular procedure then he or she must disclose to the patient all material information necessary to the decision to undergo the procedure, including a reasonable explanation of the procedure, its likelihood of success, the risks involved in accepting or rejecting the proposed procedure, and any other information a skilled practitioner in good standing would disclose to the patient under the same or similar circumstances.” (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343 [13 Cal.Rptr.2d 819].)

“A physician has a duty to inform a patient in lay terms of the dangers inherently and potentially involved in a proposed treatment.” (McKinney v. Nash (1981) 120 Cal.App.3d 428, 440 [174 Cal.Rptr. 642].)

“First, a physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure. Second, ‘[b]eyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances.’ ” (Cobbs, supra, 8 Cal.3d at p. 244, internal citations omitted.)

“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. To be material, a fact must also be one which is not commonly appreciated. 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.” (Truman, supra, 27 Cal.3d at p. 291, internal citations omitted.)

“Obviously involved in the equation of materiality are countervailing factors of the seriousness and remoteness of the dangers involved in the medical procedure as well as the risks of a decision not to undergo the procedure.” (McKinney, supra, 120 Cal.App.3d at p. 441.)

“Where a shoulder is injured in an appendectomy, or a clamp is left in the abdomen, expert testimony is not required since the jury is capable of appreciating and evaluating the significance of such events. However, when a doctor relates the facts he has relied upon in support of his decision to operate, and where the facts are not commonly susceptible of comprehension by a lay juror, medical expert opinion is necessary to enable the trier of fact to determine if the circumstances indicated a need for surgery.” (Cobbs, supra, 8 Cal.3d at p. 236, internal citations omitted.)

“We underline the limited and essentially subsidiary role of expert testimony in informed consent litigation. … [A] rule that filters the scope of patient disclosure entirely through the standards of the medical community ‘ “arrogate[s] the decision [of what to disclose] … to the physician alone.” ’ We explicitly rejected such an absolute rule as inimical to the rationale and objectives of the informed consent doctrine; we reaffirm that position. Nevertheless, … there may be a limited number of occasions in the trial of informed consent claims where the adequacy of disclosure in a given case may turn on the standard of practice within the relevant medical community. In such instances, expert testimony will usually be appropriate.” (Arato v. Avedon (1993) 5 Cal.4th 1172, 1191 [23 Cal.Rptr.2d 131, 858 P.2d 598], internal citation omitted.)

“[A] physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment.” (Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 129 [271 Cal.Rptr. 146, 793 P.2d 479], cert. denied, 499 U.S. 936 (1991).)

“While … there is no general duty of disclosure with respect to nonrecommended procedures, we do not conclude … that there can never be such a duty. In an appropriate case there may be evidence that would support the conclusion that a doctor should have disclosed information concerning a nonrecommended procedure.” (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9 Cal.Rptr.2d 463].)

“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, supra, 159 Cal.App.4th at p. 324.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.41 (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, § 21.20 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical Malpractice, § 175.28 (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)