California Civil Jury Instructions (CACI) (2017)

551. Affirmative Defense—Waiver

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551.Affirmative Defense—Waiver
[Name of defendant] claims that [he/she] did not have to inform [name of
patient] of the risks of the [insert medical procedure] because [name of
patient] asked not to be told of the risks.
If [name of defendant] has proved that [name of patient] told [him/her]
that [he/she] did not want to be informed of the risks of the [insert
medical procedure], then you must conclude that [name of defendant] was
not negligent in failing to inform [name of patient] of the risks.
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 the plaintiff indicated that he or she did not want to be informed of
the risks of refusing the test.
Sources and Authority
• “[A] medical doctor need not make disclosure of risks when the patient requests
that he not be so informed.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• This defense is considered a “justification.” Justification for failure to disclose is
an affirmative defense on which the defendant has the burden of proof. (Mathis
v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn. 9 [13 Cal.Rptr.2d 819].)
• In Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1083–1084 [91
Cal.Rptr. 319], the court held that it was not error for the court to refuse an
instruction on informed consent where the evidence showed that the doctor’s
attempt to explain the medical procedure was prevented by the plaintiff’s
insistence on remaining ignorant of the risks involved.
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)