California Civil Jury Instructions (CACI) (2017)

552. Affirmative Defense—Simple Procedure

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552.Affirmative Defense—Simple Procedure
[Name of defendant] claims that [he/she] did not have to inform [name of
plaintiff] of the risks of [a/an] [insert medical procedure]. [A/An] [insert
type of medical practitioner] is not required to tell a patient about the
dangers of a simple procedure if it is commonly understood that the
dangers are not likely to occur.
If [name of defendant] has proved that [a/an] [insert medical procedure] is
a simple procedure, and that it is commonly understood that any
dangers are not likely to occur, then [name of defendant] was not
required to inform [name of plaintiff] of the risks.
New September 2003; Revised June 2014
Directions for Use
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 (see CACI No. 534, Informed Refusal—Definition,
and CACI No. 535, Risks of Nontreatment—Essential Factual Elements) by
redrafting it to state, in substance, that the risks of refusing the test were commonly
understood to be unlikely to occur.
Sources and Authority
• “[D]isclosure need not be made if the procedure is simple and the danger
remote and commonly appreciated to be remote.” (Cobbs, supra, 8 Cal.3d at p.
245.)
• “[T]here is no physician’s duty to discuss the relatively minor risks inherent in
common procedures, when it is common knowledge that such risks inherent in
the procedure are of very low incidence.” (Cobbs, supra, 8 Cal.3d at p. 244.)
• “We note that under our law justification is regarded as an affirmative defense
and that the defendant normally bears the burden of proof with respect to
affirmative defenses.” (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn.
9 [13 Cal.Rptr.2d 819].)
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)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
452
0062
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
MEDICAL NEGLIGENCE CACI No. 552
453
0063