CACI No. 552. Affirmative Defense - Simple Procedure

Judicial Council of California Civil Jury Instructions (2020 edition)

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552.Affirmative Defense - Simple Procedure
[Name of defendant] claims that [he/she/nonbinary pronoun] 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 (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)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
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Malpractice, § 415.13 (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
CACI No. 552 MEDICAL NEGLIGENCE
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© Judicial Council of California.