California Civil Jury Instructions (CACI)

534. Informed Refusal—Definition

[A/An] [insert type of medical practitioner] must explain the risks of refusing a procedure in language that the patient can understand and give the patient as much information as [he/she] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding not to have [a/an] [insert medical procedure]. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is refused. [A/An] [insert type of medical practitioner] is not required to explain minor risks that are not likely to occur.

New September 2003

Directions for Use

This instruction should be read in conjunction with CACI No. 535, Risks of Nontreatment—Essential Factual Elements.

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

  • The definition of “informed consent” in Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1] applies “whether the procedure involves treatment or a diagnostic test.” (Truman v. Thomas (1980) 27 Cal.3d 285, 292 [165 Cal.Rptr. 308, 611 P.2d 902].)
  • In Truman, “the high court extended the duty to make disclosure to include recommended diagnostic as well as therapeutic procedures and to include situations in which the patient declines the recommended procedure.” (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1069 [9 Cal.Rptr.2d 463].) This has been termed the “informed refusal” doctrine. (Townsend v. Turk (1990) 218 Cal.App.3d 278, 284 [266 Cal.Rptr. 821].)
  • “In a nutshell, a doctor has a duty to disclose all material information to his patient which will enable that patient to make an informed decision regarding the taking or refusal to take such a test.” (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 395, 400–404, 406, 407, 409, 410

California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.12

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.14 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.13 (Matthew Bender)

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

33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)