California Civil Jury Instructions (CACI)

500. Medical Negligence—Essential Factual Elements

Please see CACI No. 400, Negligence—Essential Factual Elements

New September 2003; Revised December 2011

Directions for Use

In medical malpractice or professional negligence cases, the word “medical” or “professional” should be added before the word “negligence” in the first paragraph of CACI No. 400. From a theoretical standpoint, medical negligence is still considered negligence. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997–998 [35 Cal.Rptr.2d 685, 884 P.2d 142].)

Also give the appropriate standard-of-care instruction for the defendant’s category of medical professional. (See CACI No. 501, Standard of Care for Health Care Professionals, CACI No. 502, Standard of Care for Medical Specialists, CACI No. 504, Standard of Care for Nurses, CACI No. 514, Duty of Hospital.)

Sources and Authority

  • Code of Civil Procedure section 340.5, which sets the statute of limitations for medical malpractice cases based on professional negligence, and Civil Code sections 3333.1 and 3333.2 define “professional negligence” as follows: “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”
  • “With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional ‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary prudence’ in a particular situation.” (Flowers, supra, 8 Cal.4th at pp. 997–998.)
  • “Since the standard of care remains constant in terms of ‘ordinary prudence,’ it is clear that denominating a cause of action as one for ‘professional negligence’ does not transmute its underlying character. For substantive purposes, it merely serves to establish the basis by which ‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated.” (Flowers, supra, 8 Cal.4th at p. 998.)
  • “The Medical Injury Compensation Reform Act (MICRA) contains numerous provisions effecting substantial changes in negligence actions against health care providers, including a limitation on noneconomic damages, elimination of the collateral source rule as well as preclusion of subrogation in most instances, and authorization for periodic payments of future damages in excess of $ 50,000. While in each instance the statutory scheme has altered a significant aspect of claims for medical malpractice, such as the measure of the defendant’s liability for damages or the admissibility of evidence, the fundamental substance of such actions on the issues of duty, standard of care, breach, and causation remains unaffected.” (Flowers, supra, 8 Cal.4th at p. 999.)
  • “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. . . . That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [8 Cal.Rptr.3d 363], original italics, internal citations omitted.)
  • “The rationale advanced by the hospital is that . . . if the need for restraint is ‘obvious to all,’ the failure to restrain is ordinary negligence. . . . [T]his standard is incompatible with the subsequently enacted statutory definition of professional negligence, which focuses on whether the negligence occurs in the rendering of professional services, rather than whether a high or low level of skill is required. [Citation.]” (Bellamy v. Appellate Dep’t of the Superior Court (1996) 50 Cal.App.4th 797, 806–807 [57 Cal.Rptr.2d 894].)
  • “[E]ven in the absence of a physician-patient relationship, a physician has liability to an examinee for negligence or professional malpractice for injuries incurred during the examination itself.” (Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1478 [37 Cal.Rptr.2d 769].)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 933–936, 938, 939

California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.65

3 Levy et al., California Torts, Ch. 30, General Principles of Liability of Professionals, § 30.11, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.01 (Matthew Bender)

17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.15 (Matthew Bender)

27 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13, 295.43 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.11 (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et seq. (Matthew Bender)