California Civil Jury Instructions (CACI)

554. Affirmative Defense—Emergency

[Name of defendant] claims that [he/she] did not have to obtain [name of patient/authorized person]’s informed consent to the [insert medical procedure] because an emergency existed.

To succeed, [name of defendant] must prove both of the following:

1. That [name of defendant] reasonably believed the [insert medical procedure] had to be done immediately in order to preserve the life or health of [name of patient]; and

2. That [insert one or more of the following:]

[[name of patient] was unconscious] [or]

[there was not enough time to inform [name of patient]] [or]

[there was not enough time to get consent from an authorized person].

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 emergency situation made it impossible to inform the patient regarding the risks of refusing the test.

Sources and Authority

  • Consent is implied in an emergency situation. (Cobbs, supra, 8 Cal.3d at p. 243.)
  • Business and Professions Code sections 2397(a) and 1627.7(a) provide that a medical practitioner shall not be liable for injury caused in emergency situations by reason of the failure to inform if: (1) the patient was unconscious, (2) there was not enough time to inform the patient, or (3) there was not enough time to get consent from an authorized person.
  • 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].)
  • The existence of an emergency situation can also be a defense to battery. (Wheeler v. Barker (1949) 92 Cal.App.2d 776, 781 [208 P.2d 68]; Preston v. Hubbell (1948) 87 Cal.App.2d 53, 57–58 [196 P.2d 113]; Hundley v. St. Francis Hospital (1958) 161 Cal.App.2d 800, 802 [327 P.2d 131].)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 399

California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.15

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, §§ 31.14, 31.62 (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 Malpractice, § 415.13[7] (Matthew Bender)

2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.38 (Matthew Bender)

33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)