March 29, 2011
Fred Shackelford, Senior Attorney, National Legal Research Group
Courts in many jurisdictions have grappled with the issue of whether a patient's contributory negligence or comparative fault affects recovery in medical malpractice claims. Sometimes the answer is essentially dictated by the terms of a statute, as in Shinholster v. Annapolis Hosp., 685 N.W.2d 275 (Mich. 2004), in which the court ruled that a patient's failure to take prescribed medication for at least a year before her visits to an emergency room constituted a proximate cause of her death, thereby reducing the defendants' percentage of liability. Conversely, many courts have ruled that comparative fault principles do not apply in cases of statutory liability for violating the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd. E.g., Griffith v. Mt. Carmel Med. Ctr., 842 F. Supp. 1359, 1364-65 (D. Kan. 1994); Heimlicher v. Steele, 615 F. Supp. 2d 884, 915-16 (N.D. Iowa 2009); Pike v. Decatur Mem. Hosp., No. 1:04-cv-391-JDT-TAB, 2007 WL 1299432, at *10 (S.D. Ind. May 1, 2007) (relying on Indiana medical malpractice law); cf. Gestring v. Mary Lanning Mem. Hosp. Ass'n, 613 N.W.2d 440, 452 (Neb. 2000) (EMTALA involves strict liability, and tort principles do not apply); Burrows v. Redbud Cmty. Hosp. Dist., 187 F.R.D. 606, 611 (N.D. Cal. 1998) (same); Lane v. Calhoun-Liberty County Hosp. Ass'n, 846 F. Supp. 1543, 1552 (N.D. Fla. 1994) (same); Stevison ex rel. Collins v. Enid Health Sys., Inc., 920 F.2d 710, 713 (10th Cir. 1990) (EMTALA involves strict liability); McLaurin v. District of Columbia, Civ. A No. 92-2742 NHJ/DAR, 1993 WL 547193 (D.D.C. Oct. 21, 1993) (same); Battle v. Mem. Hosp. at Gulfport, 228 F.3d 544 (5th Cir. 2000) (discussing EMTALA and comparative fault but not directly addressing the issue). But see Smithson v. Tenet Health Sys. Hosps., Inc., Civ. Action No. 07-3953, 2008 WL 4544365, at *6 (E.D. La. Oct. 10, 2008); Clark v. Baton Rouge Gen. Med. Ctr., 94-2239 (La. App. 1 Cir. 6/23/95); 657 So. 2d 741.
When the result is not determined by statute, the answer often depends on when the patient's conduct occurs in relation to the defendant's malpractice. If a patient carelessly injures himself, his negligence does not usually affect the liability of a health-care provider who negligently treats the injury. In such cases, the patient's carelessness merely creates a condition that brings the patient to the provider, and the focus remains solely on whether the physician or other provider treated the patient properly.
If a patient's negligence occurs during the treatment period, it sometimes affects recovery. For example, if a patient provides incorrect information as to his health history or the circumstances of his accident or injury, this may affect recovery. E.g., Rochester v. Katalan, 320 A.2d 704 (Del. 1974) (patient deliberately misled doctor as to patient's consumption of drugs and alcohol). See generally Caroll J. Miller, Annotation, Patient's Failure to Reveal Medical History to Physician as Contributory Negligence or Assumption of Risk in Defense of Malpractice Claim, 33 A.L.R.4th 790 (1984 & Westlaw updated weekly).
When a patient's negligence occurs after treatment, recovery may be reduced on the grounds of contributory negligence, comparative fault, failure to mitigate damages, or assumption of risk. E.g., Dennis v. Jones, 928 A.2d 672 (D.C. 2007) (because of the disparity in knowledge between a doctor and his patient, the defense of assumption of risk is rarely available in medical malpractice cases; however, the defense may be sustained where the patient was specifically warned about a risk and refused to follow the doctor's instructions); De Vooght v. Hobbs, 593 S.E.2d 868 (Ga. Ct. App. 2004) (in medical malpractice action alleging that physician had been negligent in failing to perform a tubal ligation on patient when she delivered twins, evidence that patient had not brought tubal ligation consent form to hospital as instructed and that she had missed her six-week postoperative appointment with physician through no fault of his was sufficient to warrant jury instruction on patient's duty to mitigate damages); Moller v. Lipov, 856 N.E.2d 664 (Ill. App. Ct. 2006) (in wrongful death and survival action brought by executor of patient's estate against physician and medical group, whether patient's failure to follow physician's instructions to return for further examination if mass in breast grew or if breast pain increased had contributed to delayed diagnosis and treatment of breast cancer, and whether patient was therefore comparatively negligent, was question for jury); Bayless v. Boyer, 180 S.W.3d 439 (Ky. 2005) (in medical malpractice action brought by and on behalf of minor patient against emergency room physician and radiologist, based on defendants' alleged failure to timely diagnose and treat wrist fracture, comparative negligence instruction was warranted by evidence that patient waited 66 days between treatment in emergency room and decision to seek follow-up care, during which time he continued to play baseball and otherwise led very active life).
On the other hand, if a mentally disturbed patient commits suicide during or soon after treatment by a psychiatrist, a court may find that recovery is not affected, because the psychiatrist has a duty to protect the patient from self-inflicted injury. E.g., McNamara v. Honeyman, 546 N.E.2d 139 (Mass. 1989); Cowan v. Doering, 545 A.2d 159 (N.J. 1988). See generally Kurtis A. Kemper, Annotation, Contributory Negligence or Comparative Negligence Based on Failure of Patient to Follow Instructions as Defense in Action Against Physician or Surgeon for Medical Malpractice, 84 A.L.R.5th 619 (2000 & Westlaw updated weekly); Kurtis A. Kemper, Annotation, Contributory Negligence, Comparative Negligence, or Assumption of Risk, Other than Failing to Reveal Medical History or Follow Instructions, as Defense in Action Against Physician or Surgeon for Medical Malpractice, 108 A.L.R.5th 385 (2003 & Westlaw updated weekly).
The issue of a patient's comparative fault was addressed in a recent Oregon decision, Son v. Ashland Cmty. Healthcare Servs., 244 P.3d 835 (Or. Ct. App. 2010). In that case, a 16-year-old girl apparently attempted to commit suicide by consuming alcohol, cocaine, and various medications. She died while being treated in a hospital, and the defendants raised comparative fault defenses based on (1) the patient's consumption of dangerous substances, (2) her failure to accurately tell her family, nurses, or the defendants what substances she had consumed, and (3) her father's failure to take adequate preventive measures after learning of an earlier suicide attempt. The court ruled that the patient's consumption of dangerous substances would not affect recovery because "the focus in a medical malpractice case is on the injury caused by the negligent treatment, not the original injury that created the need for treatment." Id. at 843. As for the patient's failure to disclose information, including the fact that she had ingested Propacet medication, the court found that this nondisclosure was a valid defense. The court reasoned that the defendant physicians might have been able to save the patient's life if they had known about the Propacet. Id. at 841. With regard to the father's alleged failure to supervise his daughter, the court concluded that the father's conduct had no effect on recovery because it only contributed to the condition for which treatment was sought. Id. at 847.
In summary, counsel in medical malpractice cases should consider the potential impact of a patient's acts or omissions. The timing of the patient's alleged fault may well be a significant factor in determining whether recovery will be affected.
