CACI No. 551. Affirmative Defense - Waiver

Judicial Council of California Civil Jury Instructions (2023 edition)

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551.Affirmative Defense - Waiver
[Name of defendant] claims that [he/she/nonbinary pronoun] 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/
nonbinary pronoun] that [he/she/nonbinary pronoun] 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; Revised May 2020
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 the plaintiff 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 doctors
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 (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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