CACI No. 550. Affirmative Defense - Plaintiff Would Have Consented

Judicial Council of California Civil Jury Instructions (2023 edition)

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550.Affirmative Defense - Plaintiff Would Have Consented
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for [name of plaintiff]’s harm because [name of plaintiff] would
have consented to the procedure, even if [he/she/nonbinary pronoun] had
been informed of the risks. To establish this defense, [name of defendant]
must prove that had [name of plaintiff] been adequately informed about
the risks of the [insert medical procedure], [he/she/nonbinary pronoun]
would have consented, even if a reasonable person in [name of plaintiff]’s
position might not have consented.
New September 2003; Revised June 2015, May 2020
Directions for Use
Give this instruction if the defendant asserts as an affirmative defense that the
plaintiff would have consented (and thereby would have suffered the same harm)
had the plaintiff been informed of the risks. This instruction can 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, the plaintiff still would have refused the
Sources and Authority
“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].)
“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.)
“The prudent person test for causation was established to protect defendant
physicians from the unfairness of having a jury consider the issue of proximate
cause with the benefit of the ‘20/20 vision of hindsight . . .’ This standard
should not be employed to prevent a physician from raising the defense that
even given adequate disclosure the injured patient would have made the same
decision, regardless of whether a reasonably prudent person would have decided
differently if adequately informed.” (Truman v. Thomas (1980) 27 Cal.3d 285,
294 fn. 5 [165 Cal. Rptr. 308, 611 P.2d 902].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 469
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)

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