CACI No. 530A. Medical Battery

Judicial Council of California Civil Jury Instructions (2020 edition)

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530A.Medical Battery
[Name of plaintiff] claims that [name of defendant] committed a medical
battery. To establish this claim, [name of plaintiff] must prove all of the
following:
1. [That [name of defendant] performed a medical procedure without
[name of plaintiff]’s consent; [or]]
1. [That [name of plaintiff] consented to one medical procedure, but
[name of defendant] performed a substantially different medical
procedure;]
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
A patient can consent to a medical procedure by words or conduct.
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Select either or both of the two bracketed options in the first element depending on
the nature of the case. In a case of a conditional consent in which it is alleged that
the defendant proceeded without the condition having occurred, give CACI No.
530B, Medical Battery - Conditional Consent.
Sources and Authority
• “The California Supreme Court has described the right to consent to medical
treatment as ‘ “basic and fundamental,” ’ ‘intensely individual,’ and ‘broadly
based.’ The same court has also emphasized that excusing the patient from a
judicial proceeding regarding a surgery to be performed over his objection
‘denie[s] fundamental due process.’ It is immaterial that a doctor has said the
treatment is required to save the patient’s life. Rather, ‘ “A doctor might well
believe that an operation or form of treatment is desirable or necessary, but the
law does not permit him to substitute his own judgment for that of the patient by
any form of artifice or deception.” ’ Finally, the patient’s reasons for refusing are
irrelevant. ‘For self-determination to have any meaning, it cannot be subject to
the scrutiny of anyone else’s conscience or sensibilities.’ ” (Stewart v. Superior
Court (2017) 16 Cal.App.5th 87, 105 [224 Cal.Rptr.3d 219], internal citations
omitted.)
• Battery may also be found if a substantially different procedure is performed:
“Where a doctor obtains consent of the patient to perform one type of treatment
and subsequently performs a substantially different treatment for which consent
was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8
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Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “The battery theory should be reserved for those circumstances when a doctor
performs an operation to which the patient has not consented. When the patient
gives permission to perform one type of treatment and the doctor performs
another, the requisite element of deliberate intent to deviate from the consent
given is present. However, when the patient consents to certain treatment and the
doctor performs that treatment but an undisclosed inherent complication with a
low probability occurs, no intentional deviation from the consent given appears;
rather, the doctor in obtaining consent may have failed to meet his due care duty
to disclose pertinent information. In that situation the action should be pleaded in
negligence.” (Cobbs, supra, 8 Cal.3d at p. 240.)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent - which
sounds in negligence - arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71
Cal.Rptr.3d 469].)
• “Confusion may arise in the area of ‘exceeding a patient’s consent.’ In cases
where a doctor exceeds the consent and such excess surgery is found necessary
due to conditions arising during an operation which endanger the patient’s health
or life, the consent is presumed. The surgery necessitated is proper (though
exceeding specific consent) on the theory of assumed consent, were the patient
made aware of the additional need.” (Pedesky v. Bleiberg (1967) 251 Cal.App.2d
119, 123 [59 Cal.Rptr. 294].)
• “Consent to medical care, including surgery, may be express or may be implied
from the circumstances.” (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454
[30 Cal.Rptr. 243].)
• “It is elemental that consent may be manifested by acts or conduct and need not
necessarily be shown by a writing or by express words.” (Kritzer v. Citron
(1950) 101 Cal.App.2d 33, 38-39 [224 P.2d 808].)
• “[T]he reason why CACI No. 530B has an explicit intent and knowledge
requirement and CACI No. 530A does not is clear. The law presumes that
‘[w]hen the patient gives permission to perform one type of treatment and the
doctor performs another, the requisite element of deliberate intent to deviate
from the consent given is present.’ That situation is covered by CACI No.
530A.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d
559], internal citation omitted.)
• “In the absence of any definitive case law establishing whether operating on the
wrong disk within inches of the correct disk is a ‘substantially different
procedure,’ we conclude the matter is a factual question for a finder of fact to
decide and at least in this instance, not one capable of being decided on
demurrer.” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647 [75
Cal.Rptr.3d 861.)
CACI No. 530A MEDICAL NEGLIGENCE
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• “Although . . . consent to surgery necessarily encompasses consent to
postoperative care, not all postoperative contact between doctor and patient
constitutes care. The question of the nature of the contact between plaintiff and
[defendant], and whether that contact was within the scope of plaintiff’s consent,
is a factual question for a finder of fact to decide.” (So v. Shin (2013) 212
Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257], original italics.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 459-1635
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶ 3:1394 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA Provisions
Affecting Damages, ¶ 3:1883-3:1885 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11-9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (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, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
(Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.28 et seq. (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
MEDICAL NEGLIGENCE CACI No. 530A
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