CACI 552 Affirmative Defense—Simple Procedure

California Civil Jury Instructions CACI

552 Affirmative Defense—Simple Procedure

[Name of defendant] claims that [he/she/nonbinary pronoun] did not have to inform [name of plaintiff] of the risks of [a/an] [insert medical procedure]. [A/An] [insert type of medical practitioner] is not required to tell a patient about the dangers of a simple procedure if it is commonly understood that the dangers are not likely to occur.

If [name of defendant] has proved that [a/an] [insert medical procedure] is a simple procedure, and that it is commonly understood that any dangers are not likely to occur, then [name of defendant] was not required to inform [name of plaintiff] of the risks.

Directions for Use

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 (see CACI No. 534, Informed Refusal—Definition, and CACI No. 535, Risks of Nontreatment—Essential Factual Elements) by redrafting it to state, in substance, that the risks of refusing the test were commonly understood to be unlikely to occur.

Sources and Authority

“[D]isclosure need not be made if the procedure is simple and the danger remote and commonly appreciated to be remote.” (Cobbs, supra, 8 Cal.3d at p. 245.)

“[T]here is no physician’s duty to discuss the relatively minor risks inherent in common procedures, when it is common knowledge that such risks inherent in the procedure are of very low incidence.” (Cobbs, supra, 8 Cal.3d at p. 244.)

“We note that under our law justification is regarded as an affirmative defense and that the defendant normally bears the burden of proof with respect to affirmative defenses.” (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn. 9 [13 Cal.Rptr.2d 819].)

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)
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)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)