CACI 551 Affirmative Defense—Waiver

California Civil Jury Instructions CACI

551 Affirmative Defense—Waiver

[Name of defendant] claims that [he/she/nonbinary pronoun] did not have to inform [name of patient] of the risks of the [insert medical procedure] because [name of patient] asked not to be told of the risks.

If [name of defendant] has proved that [name of patient] told [him/her/nonbinary pronoun] that [he/she/nonbinary pronoun] did not want to be informed of the risks of the [insert medical procedure], then you must conclude that [name of defendant] was not negligent in failing to inform [name of patient] of the risks.

Directions for Use

“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].) This instruction could be modified to cover “informed refusal” cases by redrafting it to state, in substance, that the plaintiff indicated that the plaintiff did not want to be informed of the risks of refusing the test.

Sources and Authority

“[A] medical doctor need not make disclosure of risks when the patient requests that he not be so informed.” (Cobbs, supra, 8 Cal.3d at p. 245.)

This defense is considered a “justification.” Justification for failure to disclose is an affirmative defense on which the defendant has the burden of proof. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn. 9 [13 Cal.Rptr.2d 819].)

In Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1083–1084 [91 Cal.Rptr. 319], the court held that it was not error for the court to refuse an instruction on informed consent where the evidence showed that the doctor’s attempt to explain the medical procedure was prevented by the plaintiff’s insistence on remaining ignorant of the risks involved.

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)