California Civil Jury Instructions (CACI)

535. Risks of Nontreatment—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] did not fully 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 fully inform [name of plaintiff] about the 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 fully 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

Directions for Use

This instruction should be read in conjunction 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

  • 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[2] (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical Malpractice, § 175.33 (Matthew Bender)