CACI No. 554. Affirmative Defense - Emergency

Judicial Council of California Civil Jury Instructions (2020 edition)

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554.Affirmative Defense - Emergency
[Name of defendant] claims that [he/she/nonbinary pronoun] 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:]
2. [[name of patient] was unconscious] [or]
2. [there was not enough time to inform [name of patient]] [or]
2. [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
• When Consent Not Required. Business and Professions Code sections 2397(a)
(doctor), 1627.7(a) (dentist).
• Consent is implied in an emergency situation. (Cobbs, supra, 8 Cal.3d at p.
243.)
• 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 (11th ed. 2017) Torts, § 470
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.15
489
Copyright Judicial Council of California
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)
CACI No. 554 MEDICAL NEGLIGENCE
490
Copyright Judicial Council of California

© Judicial Council of California.