CACI 550 Affirmative Defense—Plaintiff Would Have Consented

California Civil Jury Instructions CACI

550 Affirmative Defense—Plaintiff Would Have Consented

[Name of defendant] claims that [he/she/nonbinary pronoun] is not responsible for [name of plaintiff]’s harm because [name of plaintiff] would have consented to the procedure, even if [he/she/nonbinary pronoun] had been informed of the risks. To establish this defense, [name of defendant] must prove that had [name of plaintiff] been adequately informed about the risks of the [insert medical procedure], [he/she/nonbinary pronoun] would have consented, even if a reasonable person in [name of plaintiff]’s position might not have consented.

Directions for Use

Give this instruction if the defendant asserts as an affirmative defense that the plaintiff would have consented (and thereby would have suffered the same harm) had the plaintiff been informed of the risks. This instruction can be modified to cover “informed refusal” cases by redrafting it to state, in substance, that even if the plaintiff had known of the risks of refusal, the plaintiff still would have refused the test.

Sources and Authority

“Whenever appropriate, the court should instruct the jury on the defenses available to a doctor who has failed to make the disclosure required by law.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].)

“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.)

“The prudent person test for causation was established to protect defendant physicians from the unfairness of having a jury consider the issue of proximate cause with the benefit of the ‘20/20 vision of hindsight …’ This standard should not be employed to prevent a physician from raising the defense that even given adequate disclosure the injured patient would have made the same decision, regardless of whether a reasonably prudent person would have decided differently if adequately informed.” (Truman v. Thomas (1980) 27 Cal.3d 285, 294 fn. 5 [165 Cal. Rptr. 308, 611 P.2d 902].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 469
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)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.13 (Matthew Bender)