CACI 535 Risks of Nontreatment—Essential Factual Elements

California Civil Jury Instructions CACI

535 Risks of Nontreatment—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she/nonbinary pronoun] did not adequately inform [name of plaintiff] about the risks of refusing the [insert medical procedure]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] did not perform the [insert medical procedure] on [name of plaintiff];

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

3.That a reasonable person in [name of plaintiff]’s position would have agreed to the [insert medical procedure] if that person had been adequately informed about these risks; and

4.That [name of plaintiff] was harmed by the failure to have the [insert medical procedure] performed.

Directions for Use

This instruction presents the “informed refusal” doctrine. (See Townsend v. Turk (1990) 218 Cal.App.3d 278, 284 [266 Cal.Rptr. 821].) It should be given with CACI No. 534, Informed Refusal—Definition.

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

“Applying these principles, the court in Cobbs [Cobbs v. Grant (1972) 8 Cal.3d 229, 243 [104 Cal.Rptr. 505, 502 P.2d 1]] stated that a patient must be apprised not only of the ‘risks inherent in the procedure [prescribed, but also] the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment.’ This rule applies whether the procedure involves treatment or a diagnostic test. On the one hand, a physician recommending a risk-free procedure may safely forego discussion beyond that necessary to conform to competent medical practice and to obtain the patient’s consent. If a patient indicates that he or she is going to decline the risk-free test or treatment, then the doctor has the additional duty of advising of all material risks of which a reasonable person would want to be informed before deciding not to undergo the procedure. On the other hand, if the recommended test or treatment is itself risky, then the physician should always explain the potential consequences of declining to follow the recommended course of action.” (Truman v. Thomas (1980) 27 Cal.3d 285, 292 [165 Cal.Rptr. 308, 611 P.2d 902], internal citations omitted.)

“The duty of reasonable disclosure was expanded in Truman v. Thomas [supra]. There, a doctor recommended that his patient undergo a risk-free diagnostic procedure but failed to advise her of the risks involved in the failure to follow his recommendation. The Supreme Court concluded that for a patient to make an informed choice to decline a recommended procedure the patient must be adequately advised of the risks of refusing to undergo the procedure. Thus, the high court extended the duty to make disclosure to include recommended diagnostic as well as therapeutic procedures and to include situations in which the patient declines the recommended procedure.” (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1069 [9 Cal.Rptr.2d 463].)

“In a nutshell, 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 such a test.” (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471, 475, 477, 480, 481
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.12
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.13[2] (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical Malpractice, § 175.33 (Matthew Bender)