CACI No. 533. Failure to Obtain Informed Consent - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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533.Failure to Obtain Informed Consent - Essential Factual
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun] performed [a/an] [insert medical procedure] on
[name of plaintiff] without first obtaining [his/her/nonbinary pronoun]
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 defendant] did not disclose to [name of plaintiff] the
important potential results and risks of[and alternatives to] 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 that person
had been adequately informed; and
4. That [name of plaintiff] was harmed by a result or risk that [name
of defendant] should have explained.
New September 2003; Revised June 2014, May 2020
Directions for Use
This instruction should be read in conjunction with CACI No. 532, Informed
Consent - Definition. See also the Directions for Use and Sources and Authority to
that instruction.
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
“[W]hen there is a more complicated procedure, . . . the jury should be
instructed that when a given procedure inherently involves a known risk of death
or serious bodily harm, a medical doctor has a duty to disclose to his patient the
potential of death or serious harm, and to explain in lay terms the complications
that might possibly occur. Beyond the foregoing minimal disclosure, a doctor
must also reveal to his patient such additional information as a skilled
practitioner of good standing would provide under similar circumstances.”
(Cobbs v. Grant (1972) 8 Cal.3d 229, 244-245 [104 Cal.Rptr. 505, 502 P.2d 1],
internal citations omitted.)
“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.)
“[T]he ‘burden of going forward’ is different from the ‘burden of proof,’ and the
burden of proof always remains with the plaintiff. Indeed, the only time the
burden of proof on informed consent shifts to the defendant-physician is after
the plaintiff has carried her burden of showing the nondisclosure of material
information and when the defendant-physician is attempting to prove that ‘even
though a reasonably prudent person might not have undergone the procedure if
properly informed of the perils, this particular plaintiff still would have
consented to the procedure.’ (Flores v. Liu (2021) 60 Cal.App.5th 278, 298
[274 Cal.Rptr.3d 444], original italics, internal citations omitted.)
“[E]ven though a physician has no general duty of disclosure with respect to
nonrecommended procedures, he nevertheless must make such disclosures as are
required for competent practice within the medical community.” (Vandi v.
Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9
Cal.Rptr.2d 463].)
“The patient-plaintiff may testify on this subject but the issue extends beyond his
credibility. Since at the time of trial the uncommunicated hazard has
materialized, it would be surprising if the patient-plaintiff did not claim that had
he been informed of the dangers he would have declined treatment. Subjectively
he may believe so, with the 20/20 vision of hindsight, but we doubt that justice
will be served by placing the physician in jeopardy of the patient’s bitterness and
disillusionment. Thus an objective test is preferable: i.e., what would a prudent
person in the patient’s position have decided if adequately informed of all
significant perils.” (Cobbs, supra, 8 Cal.3d at p. 245.)
“[T]he objective test required of the plaintiff does not prevent the defendant-
physician from showing, by way of defense, that even though a reasonably
prudent person might not have undergone the procedure if properly informed of
the perils, this particular plaintiff still would have consented to the procedure.”
(Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1206 [67 Cal.Rptr.2d 573],
original italics.)
“[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, original italics, internal citation
“[Plaintiff] is entitled to recover not only for the undisclosed complications, but
also for the disclosed complications, because she would not have consented to
either surgery had the true risk been disclosed, and therefore would not have
suffered either category of complications.” (Warren,supra, 57 Cal.App.4th at p.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471
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, § 31.14 (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)

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