Informed consent is the principlethat a patient has the right to know aboutthe risks and benefits of a medical proce-dure before making a decision whether toundergo the treatment. The corollary ofthis right is the duty of the physician todisclose certain information to thepatient. This article discusses the varia-tions of this cause of action which areimportant to both the pleading and proofof the claim, as well as the jury instruc-tions and special verdict form.The law of informed consent

Liability arising from medical care isbased on the violation of a duty owed bythe doctor to the patient. Such liabilitymay occur in various ways. Generallyspeaking, medical negligence is the fail-ure to treat a patient with that degree ofskill, knowledge, and care ordinarily pos-sessed and exercised by other physiciansunder similar circumstances. Bardessono v.Michels (1970) 3 Cal.3d 780, 788 [91Cal.Rptr. 760]. Medical battery is the per-formance of a treatment that is substan-tially different from that for which con-sent was obtained. Nelson v. Gaunt (1981)125 Cal.App.3d 623, 635 [178 Cal.Rptr.167].

Although the duty of informed con-sent is taught in medical school, the gen-esis of its modern application inCalifornia law was the case of Cobbs v.Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr.505], in which the Supreme Courtemployed several postulates: (1) Thatpatients are generally unlearned in med-ical sciences, (2) that an adult has theright, in the exercise of control over hisown body, to determine whether or not tosubmit to medical treatment, (3) that apatient’s consent must be informed, and(4) that the patient has an abject depend-ence upon and trust in his physician. (Id.at p. 242.) The Supreme Court recog-nized that, although the failure to informis a “technical battery,” it is usually moreappropriate to apply the law of negligence.Accordingly, the Court established that

the duty of care required that a physicianmust explain to a patient, in lay terms,the inherent and potential dangers of aproposed medical treatment.

The plaintiff has the burden ofproof whether the withheld informationwas material, that is, whether a reason-able person in the patient’s positionwould regard the information as signif-icant in deciding whether to undergothe procedure. Mathis v. Morrissey(1992) 11 Cal.App.4th 332, 345-347 [13Cal.Rptr.2d 819]; Parris v. Sands (1993) 21Cal.App.4th 187, 193 [25 Cal.Rptr.2d800]. Although the standard is an objec-tive one that speaks in terms of what areasonable patient would want to know,the scope of disclosure is expanded if thephysician has reason to know of apatient’s unique concerns. Truman v.Thomas (1980) 27 Cal.3d 285, 291 [165Cal.Rptr. 308].

A physician may be required to dis-close alternative schools of thought, solong as the information is material.Mathis v. Morrissey, supra, 11 Cal.App.4that pages 344-345. A patient must beinformed about the experimental natureof treatment. Daum v. SpineCare MedicalGroup, Inc. (1997) 52 Cal.App.4th 1285,1305 [61 Cal.Rptr.2d 260]. There is aduty of the physician to disclose any per-sonal interest – unrelated to the patient’shealth – in the outcome of the treatment.Moore v. Regents of Univ. of California(1990) 51 Cal.3d 120, 131-132 [271Cal.Rptr. 146]. And there is also a duty of“informed refusal” in which the physicianmust explain the risks of refusing toundergo an otherwise risk-free proce-dure. Truman v. Thomas, supra, 27 Cal.3dat page 292; Moore v. Preventive MedicineMedical Group, Inc. (1986) 178Cal.App.3d 728, 738 [223 Cal.Rptr. 859].

A physician does not have to discloserelatively minor risks inherent in com-mon procedures, so long as the particulartreatment is not contraindicated in theparticular patient. Cobbs v. Grant, supra, 8

Cal.3d at page 244. There is also no dutyof disclosure where the patient is unableto evaluate the information, in emergen-cies, for example, or when the patient is aminor or incompetent. Id. at page 243.The physician has the discretion to with-hold information if he or she reasonablybelieves that the information would be soupsetting that the patient would beunable to make a reasoned decision. Thepatient also has the right to ask not to beinformed, although the physician doesnot have to comply with the request. Id. atpage 246. Expert testimony is limited

In medical malpractice cases, “thestandard of care against which the acts ofa physician are to be measured is a matterpeculiarly within the knowledge ofexperts; it presents the basic issue in amalpractice action and can only beproved by their testimony, unless the con-duct required by the particular circum-stances is within the common knowledgeof the layman.” Landeros v. Flood (1976)17 Cal.3d 399, 408 [131 Cal.Rptr. 69].However, if the negligence is the failureto have given informed consent, the ruleis otherwise. The Supreme Courtobserved that “Respect for the patient’sright of self- determination on particulartherapy demands a standard set by lawfor physicians rather than one whichphysicians may or may not impose uponthemselves. . . . Such evaluation and deci-sion is a nonmedical judgment reservedto the patient alone.” Cobbs v. Grant,supra, 8 Cal.3d at page 243.

In Betterton v. Leichtling (2002) 101Cal.App.4th 749 [124 Cal.Rptr.2d 644] –a case involving jury instructions – theCourt of Appeal addressed the questionof whether the duty of a physician togive informed consent was based on thestandards of the medical community,that is, a negligence standard. Inanswering the question in the negative,the court traced the history of the law of

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Informed consent: The duty to disclose medical risks

informed consent. In Cobbs v. Grant (1972) 8 Cal.3d

229, the court rejected the rule that thescope of disclosure in informed con-sent cases is measured by the custom ofthe medical community. “Unlimiteddiscretion in the physician is irreconcil-able with the basic right of the patientto make the ultimate informed decisionregarding the course of treatment towhich he knowledgeably consents to besubjected.” (Id. at p. 243.)

Betterton v. Leichtling (2002) 101Cal.App.4th at page 754.

The Betterton court continued itsanalysis by discussing the subsequentSupreme Court case of Arato v. Avedon(1993) 5 Cal.4th 1172 [23 Cal.Rptr.2d131]:

The Arato court endorsed Cobbs’sposition that the standards of the med-ical community do not absolutely gov-ern the duty of disclosure. “We under-line the limited and essentially sub-sidiary role of expert testimony ininformed consent litigation. As we cau-tioned in Cobbs v. Grant, supra, 8 Cal.3d229, a rule that filters the scope ofpatient disclosure entirely through thestandards of the medical community ‘ “‘arrogate[s] the decision [of what to dis-close] . . . to the physician alone.’ “ ‘ (Id.at p. 243.) We explicitly rejected suchan absolute rule as inimical to therationale and objectives of theinformed consent doctrine; we reaffirmthat position.” (Arato, supra, at p. 1191,brackets and ellipsis in original.)However, Arato also reaffirmed andapplied the second part of the Cobbstest, which is based on the standard ofprofessional practice. “[I]n an appropri-ate case, the testimony of medicalexperts qualified to offer an opinionregarding what, if any, disclosures-inaddition to those relating to the risk ofdeath or serious injury and significantpotential complications posed by consentingto or declining a proposed treatment-wouldbe made to the patient by a skilledpractitioner in the relevant medicalcommunity under the circumstances, isrelevant and admissible.” (Ibid., italicsin original.)

Although no expert testimony is

allowed to prove the so-called communitystandard on either the scope of or duty ofdisclosure, expert testimony is clearlynecessary to establish the material risks ofthe procedure or treatment.

In Mathis v. Morissey, supra, 120Cal.App.4th 332, 343, the Court ofAppeal, citing Cobbs v. Grant, supra, 8Cal.3d 229 held:

When a doctor recommends a partic-ular procedure then he or she must dis-close to the patient all material informa-tion necessary to the decision to under-go the procedure, including a reason-able explanation of the procedure, itslikelihood of success, the risks involvedin accepting or rejecting the proposedprocedure, and any other informationa skilled practitioner in good standingwould disclose to the patient underthe same or similar circumstances.”(Emphasis added.)

Accordingly, experts may testifyregarding the benefits and material risksof the proposed treatment and informa-tion other than serious consequences thata reasonable practitioner is required todisclose.The doctor’s duty to know about therisks

In the appropriate case, the defensemight attempt to prove that certain dis-closures were not necessary because someof the material risks were not known tothe medical community at large andhence, the defendant was not negligent.However, in Mathis v. Morissey, supra, 120Cal.App.4th 332, the key phrase, “allmaterial information” which defined thescope of disclosure, was not modified bythe phrase “that a reasonably skilledpractitioner would recognize.” And in noother case discussing lack of informedconsent i s there such a modif ier.However, the negligence standard isbased, in part, on the “knowledge, andcare ordinarily possessed and exercisedby other physicians under similar circum-stances.” Bardessono v. Michels, supra, 3Cal.3d 780, 788.

How can these two concepts be rec-onciled? It might be argued that lack ofinformed consent is really a variant of strictliability, that is, liability is established once itis proved that there were material risks that

were not disclosed to the patient, that theserisks were reasonably available through con-sultation or research, that a reasonable per-son would not have consented, and thatserious consequences resulted from one ofthe undisclosed risks. And because of thelimited role of experts in informed consentcases, experts should not be allowed to tes-tify to the contrary. The defense counter-argument, however, would be that the exist-ing case law on expert testimony deals sole-ly with the lack of discretion that a doctorhas in disclosing material information –and that the question of whether the infor-mation should have been known is a ques-tion of fact based on the standard of care.Until an appellate court decides the issue,plaintiff ’s attorneys should argue that thatthe use of experts should be limited. Problems with jury instructions

BAJI 6.11 (Reality of Consent –Physician’s Duty of Disclosure) spoke interms of a physician’s duty and that thefailure of the physician to inform thepatient before obtaining consent is negli-gence that renders the physician subjectto liability. The instruction spoke clearlyin terms of negligence. The CACIreplacement for BAJI 6.11 is CACI 532,which eliminated all reference to dutyand negligence. One of the problems fac-ing practitioners, however, is the wordingof CACI 533 (Failure to Obtain Consent –Essential Factual Elements). The firstphrase of CACI 533 says “Plaintiff claimsthat Defendant was negligent because he. . . .” However, nothing in the priorinstruction, CACI 532, defines the failureto obtain informed consent in terms ofnegligence, and CACI 533 lists no ele-ment of negligence. To deal with thisproblem, attorneys handling lack ofinformed consent cases should attempt toremove the reference to negligence.

An additional problem arises in thiscontext because CACI 501 says, “Whenyou are deciding whether the physicianwas negligent, you must base your deci-sion only on the testimony of the expertwitnesses who have testified in this case.”As explained above, if there was a failureto disclose material information concern-ing the risk of death, injury or seriousconsequences, expert testimony is not

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permitted. Accordingly, if lack of in-formed consent is the only cause ofaction, CACI 501 should not be given. Incases in which there are theories of bothnegligence and lack of informed consent,the jury must be instructed that it is not torely on expert testimony on the informedconsent issue. Failure to do so has beendescribed as “invited error.” Jamison v.Lindsay (1980) 108 Cal.App.3d 223, 232[166 Cal.Rptr. 443]; Arato v. Avedon, supra,5 Cal.4th at page 1192, fn. 12.Strategic considerations

Because of juror skepticism, attorneysspecializing in medical malpractice recog-nize that it is the rare case in which lack ofinformed consent will be the sole theoryof liability. More frequently, plaintiff ’scounsel will argue that (1) the patient wasnot informed of the risks of the proce-dure, and (2) the procedure should nothave been recommended in the firstplace. This approach gives the jury theoption of finding in favor of the plaintiffon the informed consent issue, even whilefinding that the doctor was not negligentin making the recommendation.

In a recent trial, involving theories ofboth negligence and lack of informedconsent, the defense attorney attemptedto persuade the court that the special ver-dict for negligence should be usedinstead of a combined special verdict. Inrejecting the request, the trial judge heldthat the two theories – negligence andlack of informed consent – cannot belumped together in a Special Verdict

form under the theory of negligencebecause they have different elements.The CACI verdict forms treat negligenceand informed consent separately. (SeeVF-500 and VF-501 and the Directions forUse, which state that the forms can becombined.)The verdict form

The special verdict form to be craft-ed in a combined negligence and lack ofinformed consent case presents numer-ous challenges. For example, if there is afinding that there was a lack of informedconsent, but no negligence, the jury muststill address the damages issues. One wayto deal with the challenge is to give thejury three special verdict forms: One forinformed consent, one for negligence,and one on damages. For a combinedSpecial Verdict, the following form issuggested.

We, the jury, answer the questionssubmitted to us as follows:

Question No. 1: Did plaintiff give hisinformed consent for the proposed treat-ment?

Answer yes or no.If you answered Question No. 1

“no,” answer Question No. 2. Otherwise,skip Question No. 2 and Question No. 3and answer Question No. 4.

Question No. 2: Would a reasonableperson in plaintiff ’s position have con-sented to the treatment if he had beenfully informed of the possible results andrisks of and alternatives to such treat-ment?

Answer yes or no.If you answered Question No. 2

“yes,” skip Question No. 3 and answerQuestion No. 4. If you answered QuestionNo. 2 “no,” answer Question No. 3.

Question No. 3: Was plaintiff ’s harma result of a risk that defendant shouldhave explained before the procedure wasperformed?

Answer yes or no.Question No. 4: Was the defendant

negligent in the medical care and treat-ment of plaintiff?

Answer yes or no.If you answered Question No. 1

“yes,” or Question No. 2 “yes” orQuestion No. 3 “no” or Question No. 4“no,” sign and return this verdict.Otherwise, answer Question No. 5.

Question No. 5: Was the negligenceof defendant a cause of injury to plaintiff?

Answer yes or no.If you answered Question No. 1 “yes”

or Question No. 2 “yes” or Question No.3 “no,” and thereafter answered Questionno. 4 “yes,” but then answered Questionno. 5 “no,” sign and return this verdict. Ifnot, then answer all of the remainingquestions [regarding damages.]

John P. Blumberg is a member of theAmerican Board of Trial Advocates, is boardcertified as a trial lawyer by the NationalBoard of Trial Advocacy, and practices inLong Beach. He is AV-rated and was recentlyhonored as one of Southern California’s“Super Lawyers.”

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