California Civil Jury Instructions (CACI) (2017)

535. Risks of Nontreatment - Essential Factual Elements

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535.Risks of Nontreatment—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she] did not adequately inform [name of plaintiff] about the risks of
refusing the [insert medical procedure]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] did not perform the [insert medical
procedure] on [name of plaintiff];
2. That [name of defendant] did not disclose to [name of plaintiff] the
important potential risks of refusing the [insert medical
procedure];
3. That a reasonable person in [name of plaintiff]’s position would
have agreed to the [insert medical procedure] if he or she had
been adequately informed about these risks; and
4. That [name of plaintiff] was harmed by the failure to have the
[insert medical procedure] performed.
New September 2003; Revised June 2014
Directions for Use
This instruction presents the “informed refusal” doctrine. (See Townsend v. Turk
(1990) 218 Cal.App.3d 278, 284 [266 Cal.Rptr. 821].) It should be given with
CACI No. 534, Informed Refusal—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
• “Applying these principles, the court in Cobbs [Cobbs v. Grant (1972) 8 Cal.3d
229, 243 [104 Cal.Rptr. 505, 502 P.2d 1]] stated that a patient must be apprised
not only of the ‘risks inherent in the procedure [prescribed, but also] the risks
of a decision not to undergo the treatment, and the probability of a successful
outcome of the treatment.’ This rule applies whether the procedure involves
treatment or a diagnostic test. On the one hand, a physician recommending a
risk-free procedure may safely forego discussion beyond that necessary to
conform to competent medical practice and to obtain the patient’s consent. If a
patient indicates that he or she is going to decline the risk-free test or treatment,
then the doctor has the additional duty of advising of all material risks of which
a reasonable person would want to be informed before deciding not to undergo
the procedure. On the other hand, if the recommended test or treatment is itself
risky, then the physician should always explain the potential consequences of
declining to follow the recommended course of action.” (Truman v. Thomas
447
0057
(1980) 27 Cal.3d 285, 292 [165 Cal.Rptr. 308, 611 P.2d 902], internal citations
omitted.)
• “The duty of reasonable disclosure was expanded in Truman v. Thomas [supra].
There, a doctor recommended that his patient undergo a risk-free diagnostic
procedure but failed to advise her of the risks involved in the failure to follow
his recommendation. The Supreme Court concluded that for a patient to make
an informed choice to decline a recommended procedure the patient must be
adequately advised of the risks of refusing to undergo the procedure. Thus, 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].)
• “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[2] (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.33 (Matthew Bender)
536–549. Reserved for Future Use
CACI No. 535 MEDICAL NEGLIGENCE
448
0058