California Civil Jury Instructions (CACI) (2017)

554. Affirmative Defense—Emergency

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