California Civil Jury Instructions (CACI)

550. Affirmative Defense—Plaintiff Would Have Consented

[Name of defendant] claims that even if a reasonable person in [name of plaintiff]’s position might not have consented to the [insert medical procedure] if he or she had been given enough information about its risks, [name of plaintiff] still would have consented to the procedure.

If you decide [name of defendant] has proved that [name of plaintiff] would have consented, you must conclude that [his/her] failure to inform [name of plaintiff] of the risks was not a substantial factor in causing [name of plaintiff]’s harm.

New September 2003

Directions for Use

“Whenever appropriate, the court should instruct the jury on the defenses available to a doctor who has failed to make the disclosure required by law.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].)

This instruction could be modified to cover “informed refusal” cases by redrafting it to state, in substance, that even if the plaintiff had known of the risks of refusal, he or she still would have refused the test.

Sources and Authority

  • 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].)

Secondary Sources

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

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)

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