California Civil Jury Instructions (CACI) (2017)

517. Affirmative Defense—Patient’s Duty to Provide for His or Her Own Well-Being

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517.Affirmative Defense—Patient’s Duty to Provide for His or Her
Own Well-Being
A patient must use reasonable care to provide for his or her own well-
being. This includes a responsibility to [follow [a/an] [insert type of
medical practitioner]’s instructions/seek medical assistance] when a
reasonable person in the same situation would do so.
[Name of defendant] claims that [name of plaintiff]’s harm was caused, in
whole or in part, by [name of plaintiff]’s negligence in failing to [follow
[name of defendant]’s instructions/seek medical assistance]. To succeed,
[name of defendant] must prove both of the following:
1. That [name of plaintiff] did not use reasonable care in [following
[name of defendant]’s instructions/seeking medical assistance];
and
2. That [name of plaintiff]’s failure to [follow [name of defendant]’s
instructions/seek medical assistance] was a substantial factor in
causing [his/her] harm.
New September 2003; Revised December 2015
Directions for Use
Read this instruction in conjunction with basic comparative fault and damages
instructions (CACI Nos. 405, 406, 407).
The defendant has the burden of proving that the plaintiff was comparatively
negligent and that this negligence was a cause of the harm. (Pfeifer v. John Crane,
Inc. (2013) 220 Cal.App.4th 1270, 1285 [164 Cal.Rptr.3d 112].)
Sources and Authority
• “It is error for a trial court to charge the jury with regard to contributory
negligence [for failure to follow doctor’s advice] when there is no expert
testimony the plaintiff was negligent.” (Bolen v. Woo (1979) 96 Cal.App.3d 944,
952 [158 Cal.Rptr. 454].)
• “[I]t is error in medical malpractice cases to [instruct on contributory
negligence] in the absence of some evidence that the injured patient’s acts or
omissions were a proximate cause of the harm sustained.” (LeMons v. Regents
of University of California (1978) 21 Cal.3d 869, 875 [148 Cal.Rptr. 355, 582
P.2d 946].)
• “Unquestionably the jury must have considered whether the attitude of
respondent was one of refusal to follow the advice of his physicians or was,
because of his extended experience, one of justifiable fear of want of their skill.
Whether such delays under the circumstances were those of a reasonably
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prudent person determines the right of respondent to recover all of the special
damages, and the implied finding was that respondent was not arbitrary in not
promptly acceding to each suggestion of an operation.” (Dodds v. Stellar (1946)
77 Cal.App.2d 411, 422 [175 P.2d 607].)
• “Negligence, in fact, may often explain why the patient, to begin with, needed
and sought out the physician’s assistance. The health care professional, in this
instance, takes the patient as he finds him. Other than in very rare cases, the
only legitimate application of the doctrine of contributory fault is when it takes
place concurrently with or after the delivery of the practitioner’s care and
treatment.” (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 632 [183
Cal.Rptr.3d 59].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1624
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.66
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.61 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.14
(Matthew Bender)
CACI No. 517 MEDICAL NEGLIGENCE
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