How do I blame thee? Let me count the ways
Lynn R. Laufenberg’s article discussing the “blame the patient” defense in medical malpractice litigation is divided into three categories, each one relates to a different way the plaintiff can be blamed for the negligent care received. The author describes each one and offers suggestions on how to counter-act this type of affirmative defense through discovery, pretrial motions, and jury instructions.
Laufenberg first discusses contributory negligence and offers the example of a past case in which Susan, a life-long smoker, sought treatment from a new primary care physician for a chronic cough. Chest films reviewed by a radiologist revealed an abnormality in the upper lobe of Susan’s right lung and recommended a comparison with prior films. The comparison was never done and when Susan presented with persistent cough and shortness of breath to another doctor in the same group two years later, a CT scan was ordered. The scan revealed a four-centimeter mass in the upper lobe of the right lung. The malignant mass was too far advanced to be removed and chemotherapy and radiation treatment were unsuccessful. Susan died a year later.
During litigation the defense asserted contributory negligence as an affirmative defense saying that Susan’s doctor had repeatedly explained the risks of smoking, that she caused her cancer by smoking and continuing to smoke after being diagnosed with lung cancer. The plaintiff filed pretrial motions to preclude mention of contributory negligence at trial on the basis that case law “recognizes that the plaintiff seeks compensation only for those injuries that the failure or delay caused. The physician’s duty is to accurately diagnose and properly treat the outpatient’s condition, regardless of the circumstances that produced it.” The author continues by saying most courts dictate that a patient’s conduct must be concurrent or contemporaneous with the physician’s negligence to be considered contributory.
Laufenberg advises that when a contributory negligence claim is asserted by the defense interrogatories should be used to obtain all facts, witnesses, and documents that support the defense. In deposition, “the healthcare provider should be asked to acknowledge that his or her duty to timely and properly diagnose and treat the injury or condition in no way depends on the conduct of the patient. . . Further, the healthcare provider should be required to acknowledge that the conduct that put the patient at risk for disease should heighten the provider’s concern for that condition.”
Secondly, Laufenberg discusses informed consent as another method used to “blame the patient.” The doctrine of informed consent “imposes on the physician the duty to disclose information about the risks of and alternatives to a proposed course of treatment.” In Keomaka v. Zakaib, the example used by the author, the plaintiff suffered a hand injury and underwent surgery. After the operation the plaintiff experienced numbness and pain at the surgical site and after consulting another surgeon, filed suit against the first surgeon for failure to obtain informed consent. The defendant claimed that the plaintiff was negligent in failing to read the printed consent form before signing. The jury returned a defense verdict, but the Hawaii appellate court reversed the decision on the grounds that informed consent requires an action by the doctor and does not impose a duty upon the patient. As a result, the patient can not be held contributorily negligent in cases dealing with informed consent.
When contributory negligence is raised in an informed consent case, Laufenberg suggests using discovery to learn the facts of the claim. That information can then be used for a pretrial motion to allow the court to decide what is permissible and what is not.
Failure to mitigate damages is the third and final affirmative defense the author explores. This defense is used when a patient fails to follow post-treatment orders. For example, the author previously tried a case in which a tennis player with chronic knee problems underwent an arthroscopic lateral release procedure that resulted in pain, suffering and unexplained weakness in the knee. When the patient complained, the surgeon told him to work harder at his rehabilitation program. After enduring the continued pain for two months, the patient finally stopped therapy and sought a second opinion. The second surgeon diagnoses a traumatic injury to the quadriceps tendon. As a result of the delayed diagnosis the patient suffered a permanent loss of function and strength and lost the ability to run and jump. Expert orthopedic surgeons testified that such an injury should not happen with reasonable care. The defense claimed that the patient was contributorily negligent because he stopped participating in rehabilitation.
Finally, Laufenberg advises that when preparing for medical negligence cases it is important to consider and minimize the effect of criticism of the patient’s conduct. Knowing applicable legal principles, utilizing effective discovery, filing pretrial motions, and requesting limiting jury instructions will assist in that goal.