OPINION OF THE COURT BY
JUSTICE VENTERS
On discretionary review, Appellant Loretta Sargent argues that the Court of Appeals erred in affirming a judgment of the Fayette Circuit Court absolving Appellee William Shaffer, M.D., from liability on Sargent’s claim that he failed to obtain her [202]*202informed consent before operating on her. The trial judgment was based upon a jury verdict resulting from jury instructions which Sargent contends improperly stated Dr. Shaffer’s duties under KRS 304.40-320, Kentucky’s informed consent statute. For the reasons that follow, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
With a history of back problems that included two prior surgeries and a problem known as “foot drop,” Sargent sought further treatment for her back and leg pain at Bluegrass Orthopedics. An MRI examination revealed a disc herniation, multilevel stenosis,1 and disc degeneration at the lower levels of her spine. Consequently, Sargent was referred to Dr. Shaffer, an orthopedic surgeon at the University of Kentucky.
After more conservative modes of treatment failed to provide adequate relief, Dr. Shaffer agreed to perform what he described in his trial testimony as a difficult and risky lumbar laminectomy and decompression procedure involving the removal of bone and scar tissue from Sargent’s lumbar spine. Shortly after surgery, Sargent began to experience weakness in her lower extremities; eventually, and as a consequence of the surgery, she suffered incontinence and permanent paralysis from her waist down.
Sargent filed suit in the Fayette Circuit Court alleging that Dr. Shaffer was negligent in his care and treatment of her medical problems. In pre-trial discovery and at trial, Sargent’s evidence focused on establishing that Dr. Shaffer was negligent in his performance of the surgical procedure and negligent in his failure to adequately inform her of the possible risks associated with the surgery. Both sides presented expert testimony on both theories of negligence. After overruling defense motions for directed verdicts, the trial court gave a separate jury instruction on each theory of liability. The jury returned verdicts for Dr. Shaffer on both theories. The trial court entered judgment accordingly and the Court of Appeals affirmed the judgment. On discretionary review, the sole issue that Sargent presents is her claim that the judgment should be set aside because the trial court’s jury instructions misstated the law regarding informed consent.
II. STANDARDS OF REVIEW FOR ALLEGATIONS OF INSTRUCTIONAL ERROR
Before we undertake our analysis of the issue presented here, we pause to address the unresolved inconsistency we noted in Goncalves v. Commonwealth, 404 S.W.3d 180, 193 (Ky. 2013). As we said in Goncalves, recent opinions of this Court appear to be inconsistent on whether allegations of instructional error are to be reviewed by appellate courts de novo or for abuse of discretion.2 In resolving this ambiguity, we distinguish between two types of alleged errors involving jury instructions.
[203]*203The first type of instructional error is demonstrated by the claim that a trial court either (1) failed to give an instruction required by the evidence, or (2) gave an instruction that was not sufficiently supported by the evidence. For example, often in criminal trials a trial judge must decide whether to instruct the jury on a lesser included offense, or whether to instruct upon a specific defense such as self-protection. The second type of instructional error is represented by the claim that a particular instruction given by the trial court, although supported by the evidence, was incorrectly stated so as to misrepresent the applicable law to the jury.
The trial court must instruct the jury upon every theory reasonably supported by the evidence. “Each party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” McAlpin v. Davis Const, Inc., 382 S.W.3d 741, 744 (Ky.App. 2011) (quoting Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky.1957)). The same rule applies in criminal cases. Thomas v. Commonwealth, 170 S.W.3d 343, 348-49 (Ky.2005).3 So, with respect to the first type of instructional error, in deciding whether to give a requested instruction the trial court must decide “whether the evidence would permit a reasonable juror to make the finding the instruction authorizes.”4
The lingering issue is whether an appellate court reviewing that decision should decide the matter de novo, based upon its own perception of the legal theories that may be deduced from the evidence and accepted by a reasonable juror, or whether the reviewing court should apply the abuse of discretion standard, thus giving a measure of deference to the trial judge’s perspective of how the evidentiary facts relate to the tendered instructions. Having considered the matter in the context of this case, we now clarify our prior rulings with the hope of ending any lingering confusion. When the question is whether a trial court erred by: (1) giving an instruction that was not supported by the evidence; or (2) not giving an instruction that was required by the evidence; the appropriate standard for appellate review is whether the trial court abused its discretion.
Under the familiar standard prescribed in Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), a trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. A decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom. Because such decisions are necessarily based upon the evidence presented at the trial, the trial judge’s superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard.5
[204]*204However, when it comes to the second type of instructional error — whether the text of the instruction accurately presented the applicable legal theory — a different calculus applies. Once the trial judge is satisfied that it is proper to give a particular instruction, it is reasonable to expect that the instruction will be given properly. Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013). The trial court may enjoy some discretionary leeway in deciding what instructions are authorized by the evidence, but the trial court has no discretion to give an instruction that misrepresents the applicable law. The content of a jury instruction is an issue of law that must remain subject to de novo review by the appellate courts.
In summary, a trial court’s decision on whether to instruct on a specific claim will be reviewed for abuse of discretion; the substantive content of the jury instructions will be reviewed de novo. This distinction is also reflected in the opinions of the Sixth Circuit Court of Appeals. For example, see Fisher v. Ford Motor Co., 224 F.3d 570, 576 (6th Cir. 2000) (“Because the correctness of jury instructions is a question of law, we review de novo a district court’s jury instructions. A district court’s refusal to give a specific requested jury instruction, however, is reviewed for abuse of discretion.”) (citations and internal quotations omitted).6
With this differentiation between the applicable standards of review for instructional error in mind, we now redirect our attention to the specific instructional error alleged in the case at bar. The trial court agreed that the evidence supported an instruction on the theory that Dr. Shaffer was negligent in his duty to obtain Sargent’s informed consent for the surgery,’ and there is before us no claim that the trial judge abused her discretion in that decision. The issue, rather, is strictly whether the informed consent instruction given by the trial court correctly incorporated the applicable law so as to guide the jury accurately in its determination. Our review is, therefore, de novo; and, upon application of that standard, we conclude that the instruction given in this case was not correct. ’
III. THE INFORMED CONSENT INSTRUCTION
Sargent claimed that prior to the surgery she was not informed by Dr. Shaffer or anyone else that paralysis or the loss of her bladder and bowel functions were possible risks associated with the surgery. Dr. Shaffer testified that after [205]*205more conservative treatment options had been exhausted without success, he tried to dissuade Sargent from the surgical option because it was very risky and offered no assurance that her condition would be improved. The words he used to inform her of the risks of surgery were, by Dr. Shaffer’s own admission, limited to “infection, bleeding, nerve damage, dural leak, injury to the nerve, and destabilization of the scoliosis requiring fusion.” The written consent form signed by Sargent prior to surgery listed those same items, and further included the following: “injury to the surrounding structures” and “anesthesia.”
Dr. Shaffer concedes that when he explained the surgical risks to Sargent he never used the terms “paralysis,” “incontinence,” “loss of bowel and bladder control,” or any variations thereof. His position, expressed by one of his trial experts, was that because “the word [sic] ‘nerve damage’ encompasses ... the entire spectrum of things from the slightest numbness to devastating injury,” it satisfied the medical standard of care for reasonably informing a patient of the possibility of paralysis and loss of bowel and bladder control. In contrast, Sargent presented expert testimony that Dr. Shaffer’s explanation of the risks provided to her did not satisfy the standard for accepted medical practice; that is, that “injury to the nerve” and “nerve injury” were not medically acceptable ways to inform a patient of the risk of being paralyzed from the waist down.
The trial court agreed that Sargent had presented sufficient evidence to warrant an instruction on the issue of lack of informed consent. Although Sargent tendered jury instructions that paralleled the language of KRS 304.40-320 in its entirety, the trial court rejected that instruction and instead instructed the jury as follows:
INSTRUCTION NO. 1-INFORMED CONSENT
With respect to disclosing to Plaintiff, Loretta Sargent, the risks and benefits of the surgical operation he proposed to perform upon her it was the duty of the Defendant, William Shaffer, M.D. to exercise the degree of care and skill expected of a reasonably competent physician specializing in orthopedic spine surgery under similar circumstances.
INTERROGATORY NO. 1
Do you believe from the evidence that William Shaffer, M.D. failed to comply with the duty set forth in Instruction No. 1?
YES_NO_
(Check One)
[signature .lines for jurors]
If your answer is ‘Tes”, please proceed to Interrogatory No. 2.
If your answer is “No”, you have found for the Defendant, please proceed to Instruction No. 2.
INTERROGATORY NO. 2
Do you believe from the evidence that such failure on the part of William Shaffer, M.D. was a substantial factor in causing injuries and damages of which the Plaintiff, Loretta Sargent, complains?
YES_NO_
(Check One)
[signature lines for jurors]
There was no objection at trial and no complaint on appeal by either party as to the necessity and correctness of Interrogatories No. 1 and No. 2. The only question before this Court is whether Instruction No. 1 correctly sets forth the law applicable to informed consent, in light of the [206]*206language contained in KRS 304.40-320. Sargent argues that the trial court’s instruction on the physician’s duty to fully inform the patient was deficient because it did not fully incorporate all of the elements of KRS 304.40-320. Dr. Shaffer argues that the instruction given by the trial court was a correct expression of the applicable law. As explained in the preceding section, an allegation of instructional error of this kind is subject to de novo review.
We begin with a simpler proposition which is not challenged: it is a well-established principle of law that, as an aspect of proper medical practice, physicians have a general duty to disclose to their patients in accordance with accepted medical standards the risks and benefits of the treatment to be performed.7 We said in Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860 (Ky. 1992), that KRS 304.40-320 details the standards for compliance with the duty to inform patients of the risks of medical treatment:
We note incidentally the suggestion [ ] that St. Elizabeth might not have a duty to inform Keel on the theory that this responsibility lay with his personal physician. Under KRS 304.40-320, the duty is upon “health care providers”; and KRS 304.40-260 expressly includes hospitals within the definition of that term. We have no doubt that the duty exists and is breached at peril.
Id.at 862. (emphasis added).8
It is equally well-established that the legislature may “as amplification of the ‘general duty’,” impose specific, or special, duties. Wemyss v. Coleman, 729 S.W.2d 174, 180 (Ky.1987). It is also firmly established that, in addition to the general duty of ordinary professional care, health care providers are subject to special duties created by the legislature, which must be incorporated into jury instructions in medical negligence cases. Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711, 722 (Ky. App. 1992) (“[H]ospitals are required to comply with many statutory duties in addition to that of exercising ordinary care ... [T]he court obviously is required to instruct the jury regarding that [statutory] duty because the violation of such a duty, standing alone, may be sufficient to support a claim of negligence.”). In appropriate situations, “properly drafted [jury] instructions [must] utilize ‘specific duties.’ ” Henson v. Klein, 319 S.W.3d 413, 425-26 (Ky.2010) (quoting Wemyss). We therefore proceed with our analysis recognizing that KRS 304.40-320 is an exercise of the legislature’s prerogative to amplify, or expound upon, the general duty of a medical provider to obtain a patient’s informed consent with specific conditions for compliance. KRS 304.40-320 provides as follows:
In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an element,- the claimant’s informed consent shall be deemed to have been given where:
(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among mem[207]*207bers of the profession with similar training and experience; and
(2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures!.]9
The introductory provision of KRS 304.40-320 leaves no doubt that the statute is intended to apply in claims of medical malpractice based upon the element of informed consent. Informed consent, or the lack thereof, plainly is an element in this medical malpractice action. KRS 304.40-320(1) clearly embodies the general duty we have long recognized in our tort law. Indeed, Subsection (1) appears to be a codification of our holding in Holton v. Pfingst, 534 S.W.2d 786 (Ky. 1975), and it is accurately reflected in the jury instructions used by the trial court in this case. Dr. Shaffer argues that Subsection (2) of KRS 304.40-320 was not intended by the legislature to be applied by the courts as part of the standard for measuring compliance with the duty to obtain informed consent. If not a standard for measuring compliance with the duty, what then would the statute do? Where would it apply if not in an “action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an element?” We will not construe a statute to be inapplicable in the only situation that is expressly mentioned in the statute for its application.
In Holton, our predecessor court held that a physician’s duty to inform patients of medical risks is the same as the standard duty in medical negligence cases: in disclosing a patient’s risks, the doctor must use the degree of care and skill reasonably expected of a reasonably competent physician specializing in that area acting in the same or similar circum-. stances. KRS 304.40-320, was enacted one year later, obviously to function as an amplification of the general duty by the legislature, a special duty precisely of the type referenced in McKee, Wemyss, and Henson-, and it is not the prerogative of the judiciary to ignore it.
Significant in that legislative expression is the word “and” placed between Subsection (1) and Subsection (2). .We apply the conjunction, “and,” as written by the legislature unless that construction would clearly thwart the intent of the legislature or produce an absurd result. Robinson v. Commonwealth, 437 S.W.3d 153, 155 (Ky. App. 2013). We discern no such impediments to its straightforward application in the circumstances presented here. Construed in accordance with its plain terms and obvious meaning, it is readily apparent that, in an applicable civil action where informed consent is an issue, a medical treatment provider has satisfied the duty to obtain the patient’s consent only if both provisions are met. Not only must the physician’s action in disclosing the risks be “in accordance with the accepted standard of medical ... practice among members of the profession with similar training and experience” as stated in Subsection (1), it is further required that the information imparted by the physician be stated so as to [208]*208provide “a reasonable individual” with “a general understanding of the procedure ... [any] acceptable alternative^] ... [the] substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.”
Contrasting the requirements of KRS 304.40-320 with the instruction used by the trial court reveals the inadequacy of the latter. By failing to incorporate the “general understanding” component of the duty provided in Subsection (2), the instruction given by the trial court does not accurately set forth the applicable law. We cannot agree with the assertion that an informed consent instruction couched only in terms of the general professional standard of care is close enough.
The jury was required to determine if Sargent’s consent to the surgery was sufficiently “informed” so as to invalidate her claim that Dr. Shaffer had not adequately advised her of the risk she faced. To this end, both parties were entitled to have a jury fully informed of the applicable law. On one side, Sargent was entitled to have the jury made aware that Dr. Shaffer was in neglect of his duty unless his warning to Sargent would have provided “a reasonable individual” with “a general understanding” of the “substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.” On the other side, Dr. Shaffer was entitled to have the jury made aware that, regardless of whether Sargent personally understood that she faced the risk of paralysis, his warning was adequate if “a reasonable individual” would have “a general understanding” that paralysis was a possible outcome. Without the statutory yardstick provided by KRS 304.40-320(2), the jury did not have the necessary standard by which it was to judge the claim of either party regarding the adequacy of Dr. Shaffer’s description of the risks.
In the evidentiary context of the case, the question was whether “a reasonable individual” would generally understand that “nerve injury” included the possibility of permanent paralysis below the waist. Because the jury was not so instructed, we must reverse the judgment and remand for a new trial on that issue.10
In opposition to our analysis and conclusions above, Dr. Shaffer reminds us of our traditional “bare bones” approach to jury instructions, “leaving it to counsel to assure in closing arguments that the jury understands what the instructions do and do not mean.” CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 60 (Ky. 2010). “ ‘Bare bones’ instructions are proper if they correctly advise the jury about ‘what it must [209]*209believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof on that issue.” Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) (citing Meyers v. Chapman Printing Co., 840 S.W.2d 814, .824 (Ky. 1992)). We reaffirm our commitment to the “bare bones” approach.
However, fundamental to the bare bones approach is that all of the bones must be presented to the jury. All essential aspects of the law necessary to decide the case must be integrated into the instructions. Here, they were not. Omitting the “general understanding” element of informed consent set forth in Subsection (2) of the statute does not “correctly advise the jury about ‘what it must believe from the evidence in order to return a verdict.’ ” It is one thing for lawyers to explain in closing arguments “what the instructions do and do not mean[;]” it is quite a different thing to expect lawyers to explain what the law requires, but is omitted from the instructions, “[I]nstructions must not be so bare bones as to be misleading or misstate the law.” Harp v. Commonwealth, 266 S.W.3d 813, 819 (Ky. 2008). The essence of Subsection (2) is not flesh to be debated by lawyers in the closing arguments; it is one of the structural elements,, the bones, around which the substance of the law of the case is built.
We also reject Dr. Shaffer’s .argument that an instruction on Subsection (2) is unnecessary because an instruction covering only Subsection (1) generally captures all of the requirements of Subsection (2). Subsection (1) covers the means employed by the health care provider to obtain the patient’s consent. The “action of the health care provider” in obtaining consent must be “in accordance with the accepted standards of [the relevant] medical or dental practicef.]” KRS 304.40-320(1).. Quite differently, Subsection (2) covers the content of “the information provided,” and it sets forth the objective standard that “a reasonable individual” must have from that information a “general understanding” of the risks “recognized among health care providers who perform similar treatments[.]” KRS 304.40-320(2). The two subsections perform very different functions and address two different aspects of “informed consent.” Instructing upon one does not sqpply the jury with what it must know about the other.
As part of the foregoing argument, Dr. Shaffer posits that in medical cases we typically instruct only upon the general duty of professional care because jurors not versed in the technical standards of the medical arts must rely on the testimony of medical experts explaining what constitutes compliance with the applicable medical standard of care. That is certainly true in many instances of professional liability cases, whether it is medical, legal, architectural, or some other profession. But, it is true in the typical case only because compliance with the applicable professional duty ordinarily involves conduct generally understood only by those trained in the applicable professional field. To the contrary, the “reasonable individual” and “general understanding” standard provided in Subsection (2) of KRS 304.40-320 is perfectly suited for application by jurors of ordinary competence, education, and intellect, save only the need for evidence on whether the “risks and hazards” involved are among those “recognized among other health care providers who perform similar treatments or procedures.”
Dr. Shaffer points out that the instruction given by the trial court closely mirrors the model instruction provided for informed consent cases in Palmore & Cetru-lo, Kentucky Instructions to Juries, Civil § 23.10 (5th ed. 2015). We recognize the [210]*210cited treatise as a respected and persuasive authority that is regularly consulted and cited by the bench and bar of this state. Its model instructions, however, do not purport to cover every instance that may arise in litigation. The “Comment” for § 23.10 provided by the author refers only to Holton v. Pfingst, the pre-KRS 304.40-320 case cited above, and to Bennett v. Graves, 557 S.W.2d 893, (Ky. App., 1977). There is no reference at all to KRS 304.40-320, and the fair assumption is that the author of the treatise has not yet endeavored to address the application of KRS 304.40-320(1) and (2), and is most likely awaiting a definite ruling of this Court.
In this vein, we note that Sargent’s tendered instruction provided as follows:
It was.the duty of William Shaffer, M.D. to obtain Loretta Sargent’s informed consent before surgery. Informed consent shall be deemed to have been given where (1) the action of Dr. Shaffer in obtaining the consent of the patient was in accordance with the accepted standard of medical practice among members of the profession with similar training and experience; and (2) a reasonable individual, from the information provided by William Shaffer, MD, would have a general understanding of the procedure and medically acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other, health care providers who perform similar treatments or procedures.
This proposed instruction fairly' and accurately captures the general duty to obtain a patient’s informed consent, including the elements of KRS 304.40- 320. It is simple and uncluttered by complex or confusing verbiage. With minor variations based upon the peculiarities of the particular ease, it would serve well as an appropriate model for similar cases. Of course in the ordinary case, the foregoing “duty” instruction would be followed by interrogatories requiring the jury to determine if the defendant failed to comply with the duty, and if so, whether the defendant’s failure to comply with the duty was a substantial factor in causing damages to the plaintiff, exactly as was done by the trial court in this case without an objection from either party.11
It is also worth noting the value of providing, as the trial court did here, separate and distinct instructions on the surgeon’s duty to obtain informed consent and on the surgeon’s duty in connection with the performance of the medical treatment provided. While both of Sargent’s claims fall under the generic umbrella of medical negligence, a claim that the surgery was conducted without the patient’s informed consent differs fundamentally from a claim that the surgery was performed negligently. The two claims involve separate, entirely unrelated factual inquiries directed at separate, unrelated acts occurring at separate, distinct times. [211]*211Evidence that authorizes an instruction on one claim does not in any way authorize an instruction on the other; and the damages arising from the violation of one duty are not necessarily the same as the damages caused by the other. Moreover, as illustrated by this case, following appellate review, an instructional error that compels a remand and retrial can be limited to the verdict affected by the erroneous instruction when the two distinct claims are presented to the jury in separate instructions.
We have also fully considered Dr. Shaf-fers’ arguments based upon Rogers v. Kasdan, 612 S.W.2d 133 (Ky. 1981) and Hamby v. University of Kentucky Medical Ctr., 844 S.W.2d 431 (Ky. App. 1992), and we appreciate the warning that instructions in medical cases should not be burdened with specific duties where the general duty instruction is adequate. Rogers and Hamby, however, are easily distinguishable from this case.
This case does not involve the exhaustively and minutely detailed lists of “duties” seen in Hamby and in Rogers.12 However, as noted above, a simple instruction reflecting all the elements of KRS 304.40-320 would not be burdensome or confusing. Nor would this approach unduly encumber the trial court. Also, it does not risk overemphasizing some elements of the case at the expense of others, which was a chief cause for concern in both Rogers and Hamby.
The detailed lists of special duties rejected in Rogers and Hamby were all simply specific. means by which the general duty itself may have been violated. That is not true here; failing to comply with Subsection (2) of KRS 304.40-320 is not merely a more specific means of violating Subsection (1). Subsection (2) is a standalone provision, setting an objective standard for evaluating whether the information imparted to the patient was understandable. That concept is not captured by an instruction that embodies only Subsection (1), and more specifically, was not captured by the instruction used here by the trial court.
Simply put, the exhaustively detailed instructions disapproved in Rogers and Hamby are not analogous to the simple, singular, and generalized duty established by the General Assembly in KRS 304.40-320(2). The inclusion of this duty does not infuse the instructions with an overabundance of detail, nor does it give undue prominence to certain facts and issues. [212]*212The inclusion of both elements of the duty contained in KRS 304.40-320 is consistent with our tradition of “bare bones” instructions; it would not transform the jury instructions given in this ease into the “rigid list” of special duties decried in Rogers. ■
Finally, Dr. Shaffer suggests that interpreting KRS 304.40-320(2) as a duty in defining informed consent raises, by implication, a constitutional challenge to KRS 304.40-320, citing Ky. Const. §§ 14, 54, and 241; a challenge that can be averted only by rejecting Sargent’s appeal using the principle of constitutional avoidance. Although he does not explicitly mention the jural rights doctrine by name, his invocation of these three constitutional sections suggests concern for that principle unique to Kentucky jurisprudence.
The jural rights doctrine holds that the Kentucky legislature may not abrogate a plaintiffs right of recovery under causes of action in existence at the time of the adoption of our present constitution in 1892. Williams v. Wilson, 972 S.W.2d 260, 265 (Ky. 1998). What is overlooked in Dr. Shaffer’s argument is that KRS 304.40-320(2) in no way restricts a common law cause of action. Consent has always been an element in claims of uninvited touching, a battery, even in the medical context. With Holton, and our transition away from the concept of medical battery as an intentional tort to the negligence-based theory of a medical malpractice claim, obtaining the “informed consent” of the patient remains a defense assertable against a claim of negligence in medical “touching” cases, and in no way burdens the claimant’s cause of action. The constitutional provisions underlying the jural rights doctrine are simply not implicated by KRS 304.40-320. Indeed, the legislature has frequently refined the duties associated with common law tort actions without infringing upon jural rights, and we have not challenged its authority to do so.13
In summary, we hold that the instruction given in this case was erroneous because it failed to incorporate the law applicable to a medical provider’s duty to obtain informed consent. Erroneous jury instructions are presumed to be prejudicial; the party defending the erroneous instruction bears the burden of showing that no prejudice resulted. McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997). Comparing the description of the risks as they were actually articulated to Sargent and the nature of the risk involved, we are unable to conclude that Sargent was not prejudiced by the faulty instruction.
Dr. Shaffer argues that the omission from the instructions of the “general understanding” aspect of informed consent was harmless because experts on both sides acknowledged the need to explain the risks in a comprehendible way. It is the duty of the trial court, not the witnesses, to instruct the jury on the law. Jurors are generally informed that they may discredit testimony of witnesses; they may not discredit the instructions of the court. It is not likely that the witness testimony was accorded the same dignity jurors ordinarily accord to trial court instructions, which is why correct and com-[213]*213píete instructions are ordinarily essential aspects of a fair trial.
It is certainly possible that reasonable jurors, properly instructed on all of the requirements of KRS 304.40-320, might have reached a different verdict on the question of whether Dr. Shaffer obtained the patient’s informed consent to proceed with the risky surgery. Accordingly, we ■ reverse the judgment of the Court of Appeals.
Dr. Shaffer argues that our decision should apply only prospectively, on the theory that the trial court’s instruction was correct at the time it was given. We disagree. Our decision on this issue cannot come as a surprise. KRS 304.40-320(2) has been on the books since 1976. Moreover, Sargent’s trial counsel explicitly cited it to the trial court and proffered an appropriate instruction to illustrate the point. Our decision today does not overrule existing precedent, and it does not upset settled law. There is simply no justification,for us to defer the application of a law that is nearly 40 years old.
IV. CONCLUSION
For the reasons set forth above, we reverse the opinion of the Court of Appeals and remand this matter to the Fay-ette Circuit Court for further proceedings consistent with this opinion.
All sitting. Minton, C.J., Barber, Cunningham, and Noble, JJ., concur. Abramson, J., concurs in result only by separate opinion. Keller, J., dissents by separate opinion.