CACI 533 Failure to Obtain Informed Consent—Essential Factual Elements

California Civil Jury Instructions CACI

533 Failure to Obtain Informed Consent—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she/nonbinary pronoun] performed [a/an] [insert medical procedure] on [name of plaintiff] without first obtaining [his/her/nonbinary pronoun] informed consent. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] performed [a/an] [insert medical procedure] on [name of plaintiff];

2.That [name of defendant] did not disclose to [name of plaintiff] the important potential results and risks of[, and alternatives to] the [insert medical procedure];

3.That a reasonable person in [name of plaintiff]’s position would not have agreed to the [insert medical procedure] if that person had been adequately informed; and

4.That [name of plaintiff] was harmed by a result or risk that [name of defendant] should have explained.

Directions for Use

This instruction should be read in conjunction with CACI No. 532, Informed Consent—Definition. See also the Directions for Use and Sources and Authority to that instruction.

If the patient is a minor or is incapacitated, tailor the instruction accordingly.

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

Sources and Authority

“[W]hen there is a more complicated procedure, … the jury should be instructed that when a given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur. Beyond 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 v. Grant (1972) 8 Cal.3d 229, 244–245 [104 Cal.Rptr. 505, 502 P.2d 1], internal citations omitted.)

“There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given.” (Cobbs, supra, 8 Cal.3d at p. 245.)

“[E]ven though a physician has no general duty of disclosure with respect to nonrecommended procedures, he nevertheless must make such disclosures as are required for competent practice within the medical community.” (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9 Cal.Rptr.2d 463].)

“The patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of trial the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient’s bitterness and disillusionment. Thus an objective test is preferable: i.e., what would a prudent person in the patient’s position have decided if adequately informed of all significant perils.” (Cobbs, supra, 8 Cal.3d at p. 245.)

“[T]he objective test required of the plaintiff does not prevent the defendant-physician from showing, by way of defense, that even though a reasonably prudent person might not have undergone the procedure if properly informed of the perils, this particular plaintiff still would have consented to the procedure.” (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1206 [67 Cal.Rptr.2d 573], original italics.)

“[A]n action for failure to obtain informed consent lies where ‘an undisclosed inherent complication … occurs,’ not where a disclosed complication occurs.” (Warren, supra, 57 Cal.App.4th at p. 1202, internal citation omitted.)

“[Plaintiff] is entitled to recover not only for the undisclosed complications, but also for the disclosed complications, because she would not have consented to either surgery had the true risk been disclosed, and therefore would not have suffered either category of complications.” (Warrensupra, 57 Cal.App.4th at p. 1195.)

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, § 31.14 (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 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.23 et seq. (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.23, 175.29 (Matthew Bender)