Informed consent, informed refusal, and the boundary with battery

Informed consent is a process of providing material information so that a patient can make an informed decision. A signed form is evidence of that process; it does not by itself prove that the necessary discussion occurred or that the patient authorized the procedure actually performed.

California law treats consent as a question about the patient's decision rather than about the physician's habits. That orientation, set by the California Supreme Court in 1972 and refined in a small number of later decisions, explains most of what follows: why expert testimony is needed for some parts of a consent claim but not others, why "everyone in my specialty says it this way" is not a complete defense, why an informed-consent claim fails without proof that a reasonable patient would have chosen differently, and why an unauthorized procedure is a different wrong altogether.

The Cobbs framework: what the law requires

Cobbs v. Grant (1972) 8 Cal.3d 229 remains the foundation. The court held that a physician's communications must be measured by the patient's need, and that the need is whatever information is material to the decision. The test for whether a potential peril must be disclosed is therefore its materiality to the patient's decision, not merely what other physicians customarily say.

Cobbs also described the minimum content of disclosure. When a procedure carries a known risk of death or serious bodily harm, the physician must disclose that potential and explain, in terms a lay person can understand, the complications that might possibly occur. Beyond that minimum, the physician must disclose additional information that a skilled practitioner of good standing would provide under similar circumstances. Pattern instructions CACI 532 and 533 now express these duties for juries.

The same decision drew limits that still matter in practice:

• Minor, commonly understood risks. There is no duty to discuss relatively minor risks inherent in common procedures when it is common knowledge that those risks are of very low incidence.
• A patient's request not to be told. A patient may decline to hear the details; the decision to decline should itself be documented.
• Emergency and incapacity. When the patient cannot consent and delay would be harmful, the law permits treatment within the scope of the emergency, ordinarily with surrogate consent where a surrogate is reasonably available.
• A narrow therapeutic exception. Cobbs recognised that disclosure is not required where it would so seriously upset the patient that the patient could not rationally weigh the risks. The exception is narrow; it is not a licence to withhold information because the physician expects the patient to refuse.

Where expert testimony is required, and where it is not

Because the scope of disclosure is measured by the patient's need, a plaintiff does not ordinarily need an expert to say what a reasonable patient would want to know. Expert testimony is still usually needed to establish the medical facts: what the risks actually were, how likely and how serious they were, what reasonable alternatives existed, and whether the injury that occurred was a manifestation of the undisclosed risk. The second, "skilled practitioner" branch of the disclosure duty — information beyond the minimum — is the branch most likely to depend on professional testimony.

Beyond a list of risks: alternatives, prognosis and conflicts of interest

Disclosure is not limited to complications. The patient deciding whether to proceed needs to understand the nature of the proposed treatment, its expected benefit and likelihood of success, the reasonable alternatives (including no treatment), and the material consequences of each.

Arato v. Avedon (1993) 5 Cal.4th 1172 addressed a patient with pancreatic cancer whose physicians did not volunteer statistical life-expectancy figures. The Supreme Court held that there is no per se duty to disclose statistical life expectancy, and that the trial court's standard informed-consent instructions correctly left the jury to decide whether the information was material in the circumstances. The decision rejects two opposite simplifications: that physicians must always recite survival statistics, and that prognosis is never part of informed consent. The question remains what a reasonable patient in that position would consider significant to the decision actually being made.

Moore v. Regents of the University of California (1990) 51 Cal.3d 120 extended the duty in a different direction. A physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment; failure to disclose them may support a claim for performing procedures without informed consent. In current practice the principle reaches research participation, ownership interests, and financial arrangements that a reasonable patient would consider relevant to whether to accept a recommendation.

What must be proved in an informed-consent claim?

A plaintiff must establish more than an inadequate explanation. The claim requires the relevant failure to obtain informed consent, injury, and a causal connection. Cobbs adopted an objective decision standard: would a prudent person in the patient's position have declined the procedure if adequately informed of all significant perils? The patient's own testimony is relevant, but a later statement that "I would never have agreed" does not by itself resolve that objective question — Cobbs adopted the objective test precisely because hindsight testimony, given after the harm, is difficult to evaluate.

The undisclosed risk and the injury must also be connected. Suppose a procedure carries a material risk of permanent nerve injury, that risk was inadequately disclosed, and the patient develops that injury. The analysis includes whether reasonable disclosure would have changed the decision and whether the injury resulted from the relevant risk. A deficient discussion about an unrelated risk does not automatically establish liability for a different outcome.

Technical evidence may be necessary to identify the known risks, reasonable alternatives, and cause of injury. The standard governing adequate disclosure and the standard governing competent performance are related but distinct. A properly performed procedure can generate an informed-consent dispute; a thoroughly documented consent discussion does not excuse negligent performance. Informed-consent claims based on professional negligence are also subject to the same MICRA rules as other professional-negligence claims, which is one reason the boundary with battery matters.

When the issue is battery

California distinguishes negligent failure to disclose from treatment without the legally required consent. Performing a substantially different procedure from the one authorized, or proceeding outside an express condition of consent, can raise medical battery issues. The exact authorization and conduct matter. A consent form should not be read as unlimited permission to perform any procedure merely because the clinician considers it useful.

Perry v. Shaw (2001) 88 Cal.App.4th 658 illustrates the line. The patient had expressly rejected an additional procedure; the surgeon performed it. The Court of Appeal treated the proven conduct as battery rather than negligent nondisclosure, and held that MICRA's limitation on noneconomic damages did not apply to that battery. The decision depends on its facts — an express refusal followed by the refused procedure — and does not allow a party to avoid MICRA simply by relabelling a disclosure complaint.

The relevant CACI battery instructions (530A and 530B) should be assessed separately from the informed-consent negligence instructions. Emergencies, inability to obtain consent, capacity, and authorized surrogate decision making can change the analysis, but they require an actual legal and factual basis. Labeling a situation "urgent" does not answer every consent question.

Informed refusal also requires communication

Truman v. Thomas (1980) 27 Cal.3d 285 concerned a family physician whose patient repeatedly declined a recommended Pap smear and later died of cervical cancer. The Supreme Court held that when a patient indicates that he or she will decline a recommended test or treatment, the physician has an additional duty to advise of the material risks of declining — the information a reasonable person would want before deciding not to undergo it. Recording "patient declined" is incomplete if the important risk of declining was never communicated.

The discussion should address the reason for the recommendation, the significant consequences of delay or refusal, reasonable alternatives, the patient's concerns, and a practical follow-up plan. In primary care, informed refusal is common and usually undramatic: a declined colonoscopy, a deferred referral, a medication the patient does not want to start. Its legal significance appears years later, when a diagnosis is made and the question becomes whether the patient understood what was at stake when the recommendation was declined. That connection is developed in the chapter on missed and delayed diagnosis.

Who gives consent: capacity, surrogates and minors

Consent belongs to the patient who has decision-making capacity. When capacity is uncertain, the physician's assessment of it — the patient's ability to understand the information, appreciate its significance for their own situation, reason about the options and communicate a choice — is itself part of the record a court will examine. California's Health Care Decisions Law (Probate Code, Division 4.7, beginning at section 4600) governs advance health care directives, agents and surrogates; the identity and authority of the person who consented should be documented rather than assumed.

Minors raise separate rules. Parents or guardians ordinarily consent, but California statutes allow minors to consent to specified categories of care on their own, and those statutes carry their own confidentiality consequences. The applicable statute should be identified for the specific service rather than inferred from the patient's age alone.

Language, comprehension and the quality of the conversation

A disclosure the patient could not understand is not meaningful disclosure. Where the patient's preferred language is not English, the record should show how the conversation was interpreted and by whom — a qualified interpreter, a family member at the patient's insistence, or a bilingual clinician. Health literacy, hearing, cognitive impairment and the stress of the setting affect comprehension in the same way. These facts are rarely the whole claim, but they frequently decide whose account of the conversation a jury believes.

Documentation that reflects the conversation

For physicians, the most useful documentation describes the actual discussion and decision, including questions and relevant limitations. A short, specific note — the decision being made, the principal risks and alternatives discussed, the patient's stated priorities or concerns, the use of an interpreter, and the decision reached — is usually worth more than a generic form. Procedure-specific forms, patient education materials actually given, and teach-back documentation add weight when they correspond to what happened.

For counsel, the useful evidence includes the specific form, contemporaneous notes, educational materials actually provided, interpreter arrangements where relevant, scheduling and pre-procedure messages, and testimony about the conversation. Neither side should treat a signature or the absence of a particular phrase as conclusive without examining the surrounding evidence.

Questions each side should ask

Physicians and clinical leaders. Does the consent process name the decision rather than the form? Are refusals of recommended tests documented with the risk explained? Are interpreter arrangements recorded? Do research and financial relationships that a patient would consider relevant get disclosed?

Plaintiff's counsel. What specific information was omitted, and was it material to a reasonable patient? Is there expert support for the medical facts — the risk, its likelihood and the mechanism of injury? Would a prudent patient have chosen differently, and is there evidence of this patient's priorities beyond hindsight testimony? Is this a disclosure claim or a battery claim?

Defense counsel. What did the conversation actually contain, as shown by contemporaneous evidence rather than routine practice alone? Was the injury a manifestation of the allegedly undisclosed risk? Were the alternatives the plaintiff now identifies realistic options at the time? Does an exception — emergency, incapacity, or the patient's request not to be told — have a factual basis?

Sources

• Cobbs v. Grant (1972) 8 Cal.3d 229: opinion (Justia reproduction).
• Truman v. Thomas (1980) 27 Cal.3d 285: opinion (Justia reproduction).
• Arato v. Avedon (1993) 5 Cal.4th 1172: opinion (Justia reproduction).
• Moore v. Regents of University of California (1990) 51 Cal.3d 120: opinion (Justia reproduction).
• Perry v. Shaw (2001) 88 Cal.App.4th 658: opinion (Justia reproduction).
• CACI 532, informed consent definition and 533, essential factual elements, reproduced Judicial Council instructions; the medical negligence instruction collection, including medical battery instructions 530A and 530B.
• Saxena v. Goffney (2008) 159 Cal.App.4th 316, identified in the authorities accompanying CACI 532 and 533.

General legal and clinical education; not individual legal or medical advice.