I agree with the majority that the trial court did not abuse its discretion in excluding the patient information brochure or in limiting the testimony of Dr. Marcus. However, I disagree with the *1455majority’s holding Ms. Scalere was not entitled to submit to the jury her instruction on a doctor’s duty of disclosure.
The issue is whether Dr. Stenson owed Ms. Scalere a duty to disclose the risks and benefits of his proposal not to treat her for a possible blood clot in her arm. As I will explain below, a doctor’s duty of disclosure includes the duty to explain the risks and benefits of nontreatment. That duty arose in this case because there was medical evidence suggesting to Dr. Stenson a blood clot existed in Ms. Scalere’s arm and that a thrombectomy was a viable option.
I. A Doctor’s Duty of Disclosure Includes Disclosing the Risks and Benefits of Not Treating the Patient.
The typical disclosure case involves the doctor’s proposal that a particular treatment, operation, or test be performed.1 Early disclosure cases were based on a battery theory. The doctor’s failure to disclose sufficient information to the patient resulted in a battery either because the patient had not consented to the particular treatment performed or the failure to disclose vitiated the consent obtained from the patient. (Cobbs v. Grant, supra, 8 Cal.3d at p. 240.) Under a battery theory the doctor’s failure to disclose the risks and benefits of nontreatment would not be actionable because there was no unconsented touching. (See Shultz, From Informed Consent to Patient Choice: A New Protected Interest (1985) 95 Yale LJ. 219, 229-230.)
The modem view, adopted in California, is to treat a doctor’s failure to disclose relevant information as negligence. (Cobbs v. Grant, supra, 8 Cal.3d at pp. 240-241.) Under this view, the purpose of disclosure is not to protect the patient from an unconsented touching but rather to protect the broader right of the patient to self-determination over what is done with her own body. As our Supreme Court stated, paraphrasing Justice Cardozo, “a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.” (Id. at p. 242; and see Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125 [105 N.E. 92, 93] [Cardozo, J.].) On the basis of this and other related postulates, the Supreme Court held, “as an integral part of the physician’s overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Cobbs v. Grant, supra, 8 Cal.3d at p.243.)
*1456In order to effectively exercise her right of self-determination, the patient is entitled to “the amount of knowledge a patient needs in order to make an informed choice. All information material to the patient’s decision should be given.” (Truman v. Thomas, supra, 27 Cal.3d at p. 291.) Under this rule, the patient must be apprised of both the risks inherent in treatment and the risks of a decision not to undergo treatment. (Id. at p. 291.)
It is clear from Cobbs and Truman the patient’s right of choice is not limited to a veto power over treatment recommended by her doctor. “The duty to disclose was imposed in Cobbs so that patients might meaningfully exercise their right to make decisions about their own bodies. . . .” (Truman v. Thomas, supra, 27 Cal.3d at p. 292.) Whether the physician’s recommendation is to treat or not to treat, the risks and benefits involved in each course must be explained to the patient. The weighing of these risks is not the doctor’s function. “Such evaluation and decision is a nonmedical judgment reserved to the patient alone.” (Cobbs v. Grant, supra, 8 Cal.3d at p. 243.)
The argument no duty to disclose arises unless the doctor proposes treatments or tests was rejected in Jamison v. Lindsay (1980) 108 Cal.App.3d 223 [166 Cal.Rptr. 443]. In Jamison a surgeon removed an ovarian tumor and sent it to a pathologist for evaluation. The pathologist examined the tumor and discovered it contained both mature and immature tissue. The pathologist was aware of two schools of thought on whether the presence of immature tissue indicates possible malignancy. As this pathologist belonged to the “non-malignant” school, he reported to the surgeon the tumor was benign. He did not inform the surgeon of the existence of immature tissue or that some pathologists believed such tissue to be potentially malignant. Because he was told the tumor was benign, the surgeon recommended no further tests or treatment to Ms. Jamison. Ms. Jamison later developed a malignant tumor which expert testimony linked to malignancy of the tumor declared benign by the pathologist.
One theory of liability in Jamison was that the surgeon and pathologist breached the duty of care by failing to inform plaintiff the tumor contained immature tissue and that some pathologists believed such tissue to be malignant or potentially malignant. Defendants argued that Cobbs and Truman were inapplicable because defendants did not propose any treatment and, therefore, there was nothing for Ms. Jamison to make a decision about. The appellate court agreed this was not the typical “informed consent” case and therefore the trial court properly rejected the requested instructions on *1457informed consent.2 (108 Cal.App.3d. at pp. 230-231.) However, the court did not accept defendants’ argument a duty to disclose only arises when some affirmative treatment is proposed. “Consistent with the broad duty of disclosure suggested by Truman, an appropriate instruction would have been, ‘it is the duty of a physician or surgeon to disclose to the patient all relevant information to enable the patient to make an informed decision whether to seek additional treatment following surgery.’ ” (Id. at p. 231 .)3
The duty of disclosure is triggered by the doctor’s possession of material information not by proposed physical contact with the patient, as the court in Jamison correctly concluded. Cobbs, Truman and Jamison stand for the proposition that even if the doctor recommends no treatment he must still disclose what he knows about the patient’s condition and prospects. “Although the patient is not more competent in making judgments assessing the likelihood of a particular disease, she is more competent in deciding whether she wishes to undergo more tests and spend more money in order to be more certain about the diagnosis in her case.” (Shultz, supra, at p. 244.)
II. Based on the Evidence Produced at Trial It Was Error Not to Give the Disclosure Instruction Ms. Scalere Requested.
A litigant is entitled to an instruction on every theory she advances which is supported by the evidence. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543 [138 Cal.Rptr. 705, 564 P.2d 857, 99 A.L.R.3d 158].)
Ms. Scalere requested the jury be instructed, “It is the duty of a physician or surgeon to disclose to the patient all relevant information to enable the patient to make an informed decision whether to seek additional treatment following surgery.” This instruction was taken verbatim from Jamison v. Lindsay, supra, 108 Cal.App.3d at p. 231.)
The question of what constitutes “relevant information” was addressed in Truman v. Thomas, supra, in which the court explained the doctor’s duty as follows: “The scope of a physician’s duty to disclose is measured by the amount of knowledge a patient needs in order to make an nformed choice. *1458All information material to the patient’s decision should be given. . . .[fl] Material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure.” (27 Cal.3d at p. 291, citations omitted.)
In the case before us, the evidence shows Dr. Stenson decided against treatment for a possible blood clot without disclosing to Ms. Scalere: (1) Dr. Stenson suspected the existence of a blood clot two days after Ms. Scalere’s surgery;4 (2) If a blood clot exists it is advisable to perform a thrombectomy soon after the angiogram;5 (3) A thrombectomy for a patient exhibiting Ms. Scalere’s symptoms was a reasonable option.6
A jury could have properly found the foregoing information “would have been regarded as significant by a reasonable person” in Ms. Scalere’s position and that Dr. Stenson breached his duty of care in failing to disclose it.
Dr. Stenson argues his failure to advise Ms. Scalere about the option of having a thrombectomy was based on his belief she did not have a blood clot. Because he did not believe she had a blood clot, there was no point in discussing blood clot treatments. If he was negligent, it was in failing to properly diagnose Ms. Scalere’s condition not in failing to inform her of treatment options.
Dr. Stenson’s argument does not fit the evidence produced at trial. The evidence could support a finding Dr. Stenson believed Ms. Scalere was suffering from a blood clot but that it was improving and, therefore, a *1459thrombectomy or other treatment was not necessary. Dr. Stenson testified as follows:
“Q. Now, you suspected a partial blood clot per your testimony at least on the 27th, two days after the procedure?
“A. That’s correct. [ftj Whatever the etiology was, whether it was spasm or whether it was the intima, inside lining of artery, being roughened up and leading to clot formation, it didn’t seem to make much difference. [1J] But / did believe there was clot formation of some degree.
“Q. And in your experience and training, you knew that blood clots will either lyse, disappear, or propigate [sz'c] and occlude?
“A. If you’re talking about blood clots in general, they tend to improve. [1f] A relatively small percentage of them, and particularly ones with flow around them, propigate [sz'c]. It’s quite a small percentage. [1f] And what I had was a sequence of events in which this clot seemed to be improving and the blood flow seemed to be improving.” (Italics added.) Even if Dr. Stenson only suspected the existence of a blood clot that suspicion was enough to trigger a duty to disclose the possibility of a blood clot and the risks and benefits of treatment versus nontreatment. A doctor need not be 100 percent sure of the patient’s condition before the duty to disclose arises. In Truman v. Thomas, supra, the physician’s liability was based on his failure to inform his patient of the risks in not having a pap smear. The court observed that “[although the probability that Mrs. Truman had cervical cancer was low, Dr. Thomas knew that the potential harm of failing to detect the disease at an early stage was death.” (27 Cal.3d at p. 293.) In Moore v. Preventive Medicine Medical Group, supra, the defendant doctor discovered a very small skin lesion on plaintiff’s ear. The doctor did not diagnose the lesion but strongly recommended plaintiff see a specialist. The patient delayed seeing a specialist which resulted in disfiguring surgery later on. Even though defendant did not suspect the lesion on plaintiff’s ear was cancerous, the court held he was under a duty to disclose the risk if the patient failed to undergo the proposed testing. (178 Cal.App.3d at p. 739.)
This is not a case where a doctor failed to tell a patient with a headache about the risks and benefits of a brain scan. In this case there was a reasonable probability a blood clot existed based on the facts known to Dr. Stenson. These included the fact Ms. Scalere had some, but not all, of the symptoms of a blood clot; the fact that blood clots are a common complication after an angiogram; and the fact that a thrombectomy on a patient with Ms. Scalere’s symptoms is a recognized option in the medical community. *1460A jury could reasonably find this option should have been discussed with Ms. Scalere.
The facts in this case amply demonstrate why a patient such as Ms. Scalere should not have been limited to a cause of action for misdiagnosis. The inherent uncertainty of medical judgment may excuse a misdiagnosis if the judgment was carefully and reasonably made. But such uncertainty should not excuse the failure to disclose information that would have allowed the patient to make a choice whether to opt for treatment. Indeed, the more uncertain the medical judgment, the more reason to leave the decision to the patient. (Shultz, supra, 95 Yale L.J. at p. 241.)
A petition for a rehearing was denied August 4, 1989. Johnson, J., was of the opinion that the petition should be granted.
See, e.g., Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1]; Truman v. Thomas (1980) 27 Cal.3d 285 [165 Cal.Rptr. 308, 611 P.2d 902]; Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728 [223 Cal.Rptr. 859].
The narrow issue in Jamison was whether the trial court erred in refusing to give Ms. Jamison’s requested instructions on informed consent. (Id. at p. 229.) The requested instructions are not set out in the opinion but from the court’s description at pages 230-231 it appears they were BAJI Instructions Nos. 6.10 and 6.11 which, by their language, apply to cases involving treatments or operations. Because the doctors did not propose an operation or treatment the instructions, taken literally, were not applicable to the evidence presented. (Id. at p. 231.)
This was the instruction requested by Ms. Scalere in the case before us.
See testimony of Dr. Stenson quoted post, page 1459.
A jury could find the statement in the brochure that “occasionally” the artery will clot “and may need to be re-explored” by a vascular surgeon too vague to satisfy the duty of “reasonable disclosure of the available choices” once a blood clot is actually suspected. (Cobbs v. Grant, supra, 8 Cal.3d at p. 243.) For example, the statement does not disclose the need for prompt intervention in the case of a clot nor the consequences of not acting promptly to perform a thrombectomy.
The following colloquy took place on cross-examination of Dr. Stenson:
“Q. If you thought that the brachial artery was occluded but did not see these symptoms that you have just described, you would refer her for a thrombectomy, would you not?
“A. If I did not see any symptoms, is that correct?
“Q. Yes.
“A. And there was a pulse? [j|] I think doing a thrombectomy is totally optional, [jf] Now, one of the reasons people do thrombectomies is because of situations such as this one. It becomes quite optional, and there are many situations in which arteries have been tied off or ligated around the brachial artery, above the brachial artery, below the brachial artery. There have been many situations in which pulses have been left diminished, and it is somewhat optional unless the patient is symptomatic from that particular vascular insufficiency; it is somewhat optional as to whether you do a thrombectomy.” (Italics added.)
There was no objection to the hypothetical posed to Dr. Stenson.