California Civil Jury Instructions (CACI) (2017)

553. Affirmative Defense—Emotional State of Patient

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553.Affirmative Defense—Emotional State of Patient
[Name of defendant] claims that [he/she] did not have to inform [name of
plaintiff] of the risks of the [insert medical procedure]. [A/An] [insert type
of medical practitioner] does not have to provide information about risks
if the information will so seriously upset the patient that the patient will
not be able to reasonably consider the risks of refusing to have the
medical procedure.
If [name of defendant] has proved that [name of plaintiff] would have
been so seriously upset by being told of the risks that [he/she] would not
have been able to reasonably consider the risks of refusing to have the
[insert medical procedure], then [name of defendant] was not required to
inform [name of plaintiff] 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 information regarding the risks of refusing the test would have
seriously upset the patient.
Sources and Authority
• “A disclosure need not be made beyond that required within the medical
community when a doctor can prove by a preponderance of the evidence he
relied upon facts which would demonstrate to a reasonable man the disclosure
would have so seriously upset the patient that the patient would not have been
able to dispassionately weigh the risks of refusing to undergo the recommended
treatment.” (Cobbs, supra, 8 Cal.3d at p. 246.)
• 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].)
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)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons (Matthew
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)