California Civil Jury Instructions (CACI)

533. Failure to Obtain Informed Consent—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] performed [a/an] [insert medical procedure] on [name of plaintiff] without first obtaining [his/her] informed consent. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] performed [a/an] [insert medical procedure] on [name of plaintiff];

2. That [name of plaintiff] did not give [his/her] informed consent for the [insert medical procedure];

3. That a reasonable person in [name of plaintiff]’s position would not have agreed to the [insert medical procedure] if he or she had been fully informed of the results and risks of [and alternatives to] the procedure; and

4. That [name of plaintiff] was harmed by a result or risk that [name of defendant] should have explained before the [insert medical procedure] was performed.

New September 2003

Directions for Use

This instruction should be read in conjunction with CACI No. 532, Informed Consent—Definition.

If the patient is a minor or is incapacitated, tailor the instruction accordingly.

Also, see CACI No. 531, Consent on Behalf of Another.

Sources and Authority

  • A physician’s duty of reasonable disclosure for purposes of consent to a proposed medical procedure was established in Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1].
  • On causation: “There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given.” (Cobbs, supra, 8 Cal.3d at p. 245.)
  • A doctor generally does not have a duty to disclose information concerning non-recommended procedures. (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9 Cal.Rptr.2d 463].) However, a doctor must make “such disclosures as are required for competent practice within the medical community.” (Ibid.)
  • The objective test is whether a reasonable person in plaintiff’s position would have refused consent if he or she had been fully informed. (Cobbs, supra, 8 Cal.3d at p. 245.) However, the defendant can seek to prove that this particular plaintiff still would have consented even if properly informed (as an affirmative defense). (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1206 [67 Cal.Rptr.2d 573].)

  • “[A]n action for failure to obtain informed consent lies where ‘an undisclosed inherent complication . . . occurs,’ not where a disclosed complication occurs.” (Warren, supra, 57 Cal.App.4th at p. 1202 (citation omitted).)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 395, 397, 398, 400–507

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 (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)

2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.23 et seq. (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.23, 175.29 (Matthew Bender)