California Civil Jury Instructions (CACI)

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

Directions for Use

It is error to give this type of instruction absent evidence that the patient was contributorily negligent. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 874 [148 Cal.Rptr. 355, 582 P.2d 946].) At least one court has held that it is error to give this kind of instruction absent expert testimony that the plaintiff was negligent. (Bolen v. Woo (1979) 96 Cal.App.3d 944, 952 [158 Cal.Rptr. 454].)

Read this instruction in conjunction with basic comparative fault and damages instructions (CACI Nos. 405, 406, 407).

Sources and Authority

  • The defendant has the burden of proving that the plaintiff was contributorily negligent and that this negligence was a cause of the harm. (Maertins v. Kaiser Foundation Hospitals (1958) 162 Cal.App.2d 661, 666–667 [328 P.2d 494].)
  • Mere refusal to follow instructions is not sufficient to show contributory negligence or failure to mitigate damages. The failure must be unreasonable. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 422–423 [175 P.2d 607].)
  • The issues of contributory negligence and mitigation of damages can become confused in cases involving a patient’s failure to follow instructions. (LeMons, supra, 21 Cal.3d at pp. 874– 875.) However, because contributory negligence is no longer a complete bar to recovery, the distinction may be less critical today.

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)