CACI No. 530A. Medical Battery

Judicial Council of California Civil Jury Instructions (2025 edition)

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530A.Medical Battery

[Name of plaintiff] claims that [name of defendant] committed a medical

battery. To establish this claim, [name of plaintiff] must prove all of the

following:

1. [That [name of defendant] performed a medical procedure without

[name of plaintiff]’s consent; [or]]

1. [That [name of plaintiff] consented to one medical procedure, but

[name of defendant] performed a substantially different medical

procedure;]

2. That [name of plaintiff] was harmed; and

3. That [name of defendant]’s conduct was a substantial factor in

causing [name of plaintiff]’s harm.

A patient can consent to a medical procedure by words or conduct.

Derived from former CACI No. 530 April 2007; Revised October 2008

Directions for Use

Select either or both of the two bracketed options in the first element depending on

the nature of the case. In a case of a conditional consent in which it is alleged that

the defendant proceeded without the condition having occurred, give CACI No.

530B, Medical Battery - Conditional Consent.

Sources and Authority

• “The California Supreme Court has described the right to consent to medical

treatment as ‘ “basic and fundamental,” ’ ‘intensely individual,’ and ‘broadly

based.’ The same court has also emphasized that excusing the patient from a

judicial proceeding regarding a surgery to be performed over his objection

‘denie[s] fundamental due process.’ It is immaterial that a doctor has said the

treatment is required to save the patient’s life. Rather, ‘ “A doctor might well

believe that an operation or form of treatment is desirable or necessary, but the

law does not permit him to substitute his own judgment for that of the patient by

any form of artifice or deception.” ’ Finally, the patient’s reasons for refusing are

irrelevant. ‘For self-determination to have any meaning, it cannot be subject to

the scrutiny of anyone else’s conscience or sensibilities.’ ” (Stewart v. Superior

Court (2017) 16 Cal.App.5th 87, 105 [224 Cal.Rptr.3d 219], internal citations

omitted.)

• Battery may also be found if a substantially different procedure is performed:

“Where a doctor obtains consent of the patient to perform one type of treatment

and subsequently performs a substantially different treatment for which consent

was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8

477

Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1].)

• “The battery theory should be reserved for those circumstances when a doctor

performs an operation to which the patient has not consented. When the patient

gives permission to perform one type of treatment and the doctor performs

another, the requisite element of deliberate intent to deviate from the consent

given is present. However, when the patient consents to certain treatment and the

doctor performs that treatment but an undisclosed inherent complication with a

low probability occurs, no intentional deviation from the consent given appears;

rather, the doctor in obtaining consent may have failed to meet his due care duty

to disclose pertinent information. In that situation the action should be pleaded in

negligence.” (Cobbs, supra, 8 Cal.3d at p. 240.)

• “Our high court has made it clear that battery and lack of informed consent are

separate causes of action. A claim based on lack of informed consent - which

sounds in negligence - arises when the doctor performs a procedure without first

adequately disclosing the risks and alternatives. In contrast, a battery is an

intentional tort that occurs when a doctor performs a procedure without

obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71

Cal.Rptr.3d 469].)

• “Confusion may arise in the area of ‘exceeding a patient’s consent.’ In cases

where a doctor exceeds the consent and such excess surgery is found necessary

due to conditions arising during an operation which endanger the patient’s health

or life, the consent is presumed. The surgery necessitated is proper (though

exceeding specific consent) on the theory of assumed consent, were the patient

made aware of the additional need.” (Pedesky v. Bleiberg (1967) 251 Cal.App.2d

119, 123 [59 Cal.Rptr. 294].)

• “Consent to medical care, including surgery, may be express or may be implied

from the circumstances.” (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454

[30 Cal.Rptr. 243].)

• “It is elemental that consent may be manifested by acts or conduct and need not

necessarily be shown by a writing or by express words.” (Kritzer v. Citron

(1950) 101 Cal.App.2d 33, 38-39 [224 P.2d 808].)

• “[T]he reason why CACI No. 530B has an explicit intent and knowledge

requirement and CACI No. 530A does not is clear. The law presumes that

‘[w]hen the patient gives permission to perform one type of treatment and the

doctor performs another, the requisite element of deliberate intent to deviate

from the consent given is present.’ That situation is covered by CACI No.

530A.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d

559], internal citation omitted.)

• “In the absence of any definitive case law establishing whether operating on the

wrong disk within inches of the correct disk is a ‘substantially different

procedure,’ we conclude the matter is a factual question for a finder of fact to

decide and at least in this instance, not one capable of being decided on

demurrer.” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647 [75

Cal.Rptr.3d 861.)

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• “Although . . . consent to surgery necessarily encompasses consent to

postoperative care, not all postoperative contact between doctor and patient

constitutes care. The question of the nature of the contact between plaintiff and

[defendant], and whether that contact was within the scope of plaintiff’s consent,

is a factual question for a finder of fact to decide.” (So v. Shin (2013) 212

Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257], original italics.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 459-1635

Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive

Damages, ¶ 3:1394 (The Rutter Group)

Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA Provisions

Affecting Damages, ¶ 3:1883-3:1885 (The Rutter Group)

California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11-9.16

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical

Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (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, 415.20 (Matthew Bender)

2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.

(Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical

Malpractice, § 175.28 et seq. (Matthew Bender)

33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and

Directives, § 104.11 (Matthew Bender)

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Page last reviewed April 2025