How do I blame thee? Let me count the ways: the 'blame the patient' defense is common in medical negligence cases. But with careful preparation, you can confront it and succeed at trial.

Health care providers routinely assert the plaintiff s contributory negligence as an affirmative defense in medical negligence cases. The "blame the patient" defense takes many forms. It may be an overt claim of contributory fault that caused the bad outcome, such as a failure to provide a complete and accurate medical history. It may be an assertion that the patient's failure to comply with instructions either prevented an opportunity for correction or aggravated the consequences of improper care. It may even include an assertion that the plaintiff's negligence caused the condition for which the negligently provided medical care was required.

Don't dismiss these assertions as a product of "kitchen sink" pleading without considering the applicable law and the specific facts of the case. Instead, develop a plan to demand or undermine the basis for the defense in discovery and preclude its assertion by pretrial motion, and request appropriate limiting instructions at trial.

Contributory fault

Contributory negligence is commonly asserted as a defense in failure-to-diagnose or delayed-diagnosis cases. Some years ago, I represented the family of a wife and mother, Susan, who died of lung cancer in her mid-40s. She was a lifelong smoker and had a chronic cough when she began seeing a new primary care physician. A radiologist identified an abnormality in the upper lobe of her right lung and recommended a comparison with prior films. The patient arranged to have past films sent to the doctor's office. However, no one reviewed them or sent them to the radiologist for comparison.

Two years later, another doctor in the same group, addressing Susan's complaints of persistent cough and shortness of breath, reviewed the prior films, noted the abnormality, and ordered a CT scan. That revealed a four-centimeter mass in her upper right lung, which proved to be malignant and was too far advanced for surgical removal. Despite aggressive chemotherapy and radiation, Susan died a year later while the lawsuit was pending.

Discovery revealed that Susan's doctors had repeatedly told her of smoking's potential adverse health effects. She had tried, unsuccessfully, to quit several times. She even continued to smoke after the lung cancer was diagnosed. The defendants asserted that Susan was contributorily negligent in causing her lung cancer.

In another case, Charles, a 42-year-old single laborer, lost control of his car while driving too fast on a rain-slicked city street. It slammed, rear end first, into a brick structure. The accordion-like crush pinned Charles between the steering wheel and seat structure.

A trauma surgeon at the local emergency room ordered CT scans and spinal X-rays to identify any visceral injury or unstable spine fracture. The radiologist told the surgeon that Charles had several broken ribs and a ruptured spleen but that he saw "no definitive evidence" of a spinal injury.

During litigation the surgeon and the radiologist disputed the exact content of that discussion. However, the surgeon did remove the spleen and, following standard protocol, ordered early "mobilization."

Over the next three days, the nurses noted that Charles repeatedly complained of persistent mid-back pain and progressive numbness, tingling, and weakness in his legs. Ultimately, he could not move them. A CT scan confirmed that the vertebrae in the mid-thoracic spine had become displaced, severing the spinal cord and producing irreversible paralysis.

A review of the original films disclosed clear evidence of this spinal fracture. The parties did not dispute that, had the doctors identified this condition, they would have placed Charles on strict spinal precautions until the fracture could be stabilized. This would have prevented the paralysis.

In their responsive pleadings, the defendants alleged that Charles had been driving too fast and that this contributory negligence was a cause of his spine fracture and ultimate paralysis.

In both of these cases, pretrial motions were filed to preclude any assertion of contributory negligence at trial. The motions were supported with a review of the case law uniformly holding that the patient's claimed "negligence" in producing the condition for which treatment is being sought is not a defense to negligence in properly diagnosing or timely treating the condition.

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 patient's condition, regardless of the circumstances that produced it. Consequently, any claimed "fault" of the patient in initially producing the condition is irrelevant to whether the physician violated a duty and should be held liable for the bad outcome.

Under Wisconsin law, for example, a physician who negligently causes or "enhances" an accident victim's injuries is considered a "successive" tortfeasor. (1) While not liable for the initial injuries, the physician is liable for any aggravation or enhancement of those injuries caused by negligent treatment. Although state law varies, most states follow a similar rule. (2)

Most courts have held that for a patient's conduct to be considered contributory negligence, it must be concurrent or contemporaneous with the physician's negligence. (3) Some examples illustrate the point.

In Lambert v. Shearer, the plaintiff's husband died after his physician negligently failed to diagnose lung cancer. The defendant appealed the jury verdict in the widow's favor, contending that the trial court had erred in directing a verdict for the plaintiff on the issue of contributory negligence instead of submitting it to the jury. The Ohio Court of Appeals acknowledged that contributory negligence may be an available defense but said, "[I]t is improper to suggest, as [the] defendant did at trial, that the negligent conduct of the patient prior to coming under the care of the defendant physician could serve to constitute negligence." (4)

The court added, "[The] defendant cannot claim that [the decedent] caused or contributed to his own death by smoking for thirty years before seeing [the] defendant. Sick people deserve the same care whether they smoke, drink, drive too fast, or engage in socially unacceptable behavior." (5)

In Rowe v. Sisters of the Pallotine Missionary Society, Brian Rowe suffered an injury to his left knee when he lost control of his motorcycle during a motocross event. (6) He was taken to the defendant's emergency room, where the staff failed to respond to reports of severe pain in the knee, numbness in the lower leg, and lack of pulse in the lower leg and foot. Because of delay in diagnosing an injury to the artery providing blood flow to the lower leg, the leg was ultimately amputated.

At trial, the defendants requested that the jury be permitted to consider whether Rowe's negligence in the operation of his motorcycle was a proximate cause of the amputation. Noting that most courts have held that a health care provider cannot compare the plaintiff's negligent conduct that triggered the need for treatment with the health care provider's negligence in treating the plaintiff, the West Virginia Supreme Court of Appeals observed:

   Plaintiffs who negligently injure themselves
   are entitled to subsequent, non-negligent
   medical treatment. If a health care provider
   renders negligent medical treatment,
   regardless of the event that triggered
   the need for medical treatment,
   plaintiffs are entitled to an undiminished
   recovery in a tort action for any damages
   proximately caused by that negligent medical
   treatment. (7)

In Harding v. Deiss, an emergency room malpractice case, the Montana Supreme Court considered a defendant's claim that a young girl with a history of asthma was contributorily negligent for riding a horse while experiencing an asthma attack. Reviewing the authorities from other jurisdictions, the court rejected the comparative negligence defense because the patient's conduct was not "contemporaneous with or subsequent to treatment." (8)

In Susan's case, citation to these authorities produced an instruction by the trial court that the jury was not to consider her smoking history as in any way affecting the defendant health care providers' duty to timely diagnose her lung cancer. However, the case was aggressively defended on both liability and causation issues, and the jury returned a defense verdict. Despite the limiting instruction and an aggressive focus on this issue during jury selection, several jurors interviewed after the trial stated that they had "trouble" holding the defendants accountable for failing to diagnose and treat a cancer brought about by Susan's lifelong smoking habit.

In Charles's case, the defendants withdrew the contributory negligence defense after a similar pretrial motion was filed. The parties settled shortly before trial, after the radiologist could not produce an expert to defend his failure to identify the spine fracture.

Citation to these authorities should prevent the submission of a contributory negligence defense in failure-to-diagnose and delayed-treatment cases aimed at the plaintiff's conduct in producing the injury or condition for which treatment is sought. When the defense is asserted, interrogatories should require that the health care provider identify all facts, witnesses, and documents that support that defense.

In deposition, the health care 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 that produced the condition or injury. Further, the health care provider should be required to acknowledge that the conduct that put the patient at risk for disease (as with smoking and lung cancer) should heighten the provider's concern for that condition. The discovery responses will provide a factual basis to support the pretrial motions.

As demonstrated by Susan's case, stopping the formal assertion of the defense may not be enough to prevent a jury from improperly considering the plaintiff's conduct when deliberating on liability and damages. You should carefully consider how these issues are addressed during jury selection, opening statement, expert testimony, and closing argument.

Informed consent

At first blush, it seems incongruous that contributory negligence might be asserted as a defense to a claim based on failure to obtain informed consent. The doctrine imposes on the physician the duty to disclose information about the risks of and alternatives to a proposed course of treatment. How can the unsophisticated patient, who is the intended beneficiary of this information, be blamed for any deficiency in this disclosure?

In a Wisconsin informed consent case, the surgeon advised Marlene Brown to have both breasts removed because of a significant family history of breast cancer, the difficulty of evaluating a lump because of previous breast implants, and her fear of developing breast cancer. Biopsies of the lump were inconclusive. She had the surgery, and several complications developed. The Browns sued the surgeon, alleging negligence in performing the surgery and a failure to obtain their informed consent.

At trial, the Browns' testimony about the presurgical discussions differed substantially from the surgeon's. The jury absolved the defendant of negligence in performing the surgery but found that he had failed to obtain Marlene's informed consent. It also found Marlene contributorily negligent, apparently for allegedly failing to provide a complete and "truthful" family history and in allegedly failing to seek a second opinion concerning her options. The jury apportioned 50 percent of the causal negligence to Marlene.

On appeal, the Browns argued that the judge had erred in allowing the jury to consider contributory negligence in an informed consent claim. The Wisconsin Supreme Court first observed that "the doctrine of informed consent focuses on the reasonableness of a doctor's disclosure" and that "the information that is reasonably necessary for a patient to make an informed decision regarding treatment will vary from case to case." (9)

Ultimately, the court recognized a qualified contributory-negligence defense, saying that "a patient bringing an informed consent action is not exempt from the duty to exercise ordinary care for his or her own health and well-being." (10) However, the court also noted that, "the very patient-doctor relation assumes trust and confidence on the part of the patient and ... it would require an unusual set of facts to render a patient guilty of contributory negligence when the patient relies on the doctor." (11)

The "more difficult question" was "how to define the dimensions of a patient's duty to exercise ordinary care" in the context of an informed consent claim. (12) The Wisconsin court agreed with the defendant that because a doctor's advice may depend on the accuracy of the patient's history, patients have a duty "to tell the truth and give complete and accurate information about personal, family, and medical histories to a doctor to the extent possible in response to the doctor's requests for information when the requested information is material to a doctor's duty" to obtain informed consent. (13) Consequently, it was appropriate to permit the jury to consider whether Marlene had "told the truth" about her mother's breast cancer history.

However, the court rejected the defendant's contention that the patient's duty of care included an obligation to "ascertain the truth or completeness of the information presented by the doctor, to ask questions of the doctor, and to independently seek information when a reasonable patient would want to have such information." (14)

Rather, the court said,

   [I]n most cases it is illogical and contrary
   to the concept of informed consent to
   place on patients the burden of asking
   questions of their doctors or engaging in
   their own independent research.... The
   informed consent statute speaks solely in
   terms of the doctor's duty to disclose and
   discuss information related to treatment
   options and risks. (15)

Further, the court held that Marlene could not be found contributorily negligent in her decision to choose bilateral mastectomy as opposed to periodic mammograms, which would have involved no disfiguring surgery. The Browns argued that because both treatments were presented by the defendant doctor as viable options, there could be no negligence in making such a choice. The court agreed. (16)

Citing Brown in an unpublished decision, the Wisconsin Court of Appeals affirmed a defense verdict in a case involving the premature elective delivery of a baby. The complaint alleged that the mother's due date had been miscalculated.

During a second trial limited to the issue of whether the attending physician had obtained the parents' informed consent for the early delivery, the trial court submitted a question to the jury on the plaintiffs' contributory negligence. Affirming the defense verdict in the second trial, the appeals court pointed to evidence that the mother had failed to provide accurate and complete information about her contraceptive use, the date of her last menstrual period, the presence of spotting or bleeding, and the absence of a family history of twins or multiple births. (17) A jury could reasonably find that these failures made it impossible for the doctor to accurately assess the progress of the pregnancy and properly advise the parents about when the baby could be safely delivered, the court concluded.

In Keomaka v. Zakaib, the plaintiff suffered an injury to his hand in an industrial accident. (18) After unsuccessful initial treatment, the defendant surgeon recommended surgery that involved transplanting a nerve from the ankle into the hand. Following the surgery, the plaintiff experienced numbness and pain at the site of the harvested nerve in the ankle. After seeing another surgeon who described and performed an alternative surgery to deal with the hand injury, the plaintiff brought suit against the first surgeon, alleging a failure to obtain informed consent.

In response, the defendant asserted that the patient was contributorily negligent in failing to read a printed consent form, which he signed before the surgery. The trial court permitted the jury to consider this issue, and the jury returned a defense verdict.

This result was reversed on appeal. Noting that the doctrine of informed consent imposes "an affirmative duty requiring an affirmative act" by one with "superior knowledge ... and expertise," the Hawaii appellate court held that "it would be unfair and illogical to impose on the patient the duty of inquiry or other affirmative duty with respect to informed consent. Thus, where a patient has no duty in the informed consent context, we cannot see how the patient can be contributorily negligent." (19) The court also held that the physician's "affirmative" duty may not be fulfilled merely by having the patient sign a printed informed consent form because "a signed consent form is not a substitute for the required disclosure by a physician." (20)

Whenever contributory negligence is asserted in response to a claim of failure to obtain informed consent, it is important to use discovery to learn the specific factual basis for this contention. You can then formulate a pretrial motion that permits the court to distinguish between permissible and impermissible bases for the defense at trial.

Following instructions

The defense often asserts contributory negligence when a patient fails to follow a doctor's posttreatment instructions. Usually, though, these criticisms more appropriately fall within the scope of the legal concepts of "avoidable consequences" or "failure to mitigate." The distinction is critical in jurisdictions where contributory negligence is a complete bar to recovery. Even in comparative negligence jurisdictions, proper characterization may make a significant difference in the ultimate recovery.

Durphy v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc., provides a good review of the applicable legal principles. (21) In that case, the patient sought to recover for the loss of his foot caused by a delayed diagnosis of an infection. Kaiser asserted that Durphy failed to comply with the treatment plan by missing appointments before and after the amputation and failing to maintain a diabetic diet, wear protective coverings for his foot, and report to the hospital in a timely manner.

The experts disagreed over when precisely the diagnosis of osteomyelitis must have been made to prevent the amputation. The trial court granted a judgment notwithstanding the jury verdict for the plaintiff.

Reversing, the District of Columbia Court of Appeals noted the distinction between conduct that constitutes contributory negligence and conduct that is subject to a mitigation defense in medical negligence cases. The court noted that most jurisdictions uphold the contributory negligence defense only when the patient's conduct is contemporaneous with the physician's negligence. In those jurisdictions, it observed, "when a physician's negligence causes injury, the patient's subsequent noncompliance with treatment will mitigate damages." (22)

However, the court noted, other courts have not held to the strict simultaneity rule in all situations. For example, in Chudson v. Ratra, a Maryland appeals court said the test was "not simultaneity but whether the plaintiff's dereliction has significantly contributed to the injury for which he or she sues." (23)

The distinction between contributory negligence and mitigation of damages was important in an orthopedic negligence case I tried several years ago. Terry DiMario was an accomplished high school and college tennis player with chronic knee problems. After an arthroscopic lateral release procedure left him in extreme pain and suffering weakness in the knee, he tried but could not endure an aggressive early rehabilitation program prescribed by the orthopedic surgeon.

The surgeon had no explanation for the extreme pain and weakness and recommended only that Terry "try harder" in rehabilitation. His post-op notes questioned whether Terry was "compliant" with the rehabilitation program. Because the doctor had no adequate answer for the continuing pain after two months, Terry did not go back to the doctor for further follow-up.

After a few months of unsuccessful attempts at rehabilitation, Terry saw a different orthopedic surgeon, who diagnosed a traumatic injury to the quadriceps tendon. Because the injury had not been timely diagnosed and repaired, it resulted in a permanent loss of function and strength: Terry could no longer run or jump. Our expert orthopedic surgeon said this injury simply should not occur with the exercise of reasonable care.

At trial, the defense conceded that the quadriceps injury happened during surgery but asserted it was a known and sometimes unavoidable risk of the procedure. It also claimed that Terry was contributorily negligent for failing to return for evaluation and strictly follow the rehabilitation instructions. Had Terry returned, the defense claimed, the defendant could have diagnosed the injury and repaired it.

The trial judge agreed with the plaintiff that his postinjury conduct could not constitute contributory negligence. He also refused to give the jury a requested "failure to mitigate" instruction, reasoning that a patient did not have a duty to return repeatedly to the operating doctor for a diagnosis of a surgical injury that had not been identified as a risk.

The jury returned a verdict for Terry, and the defense appealed. In an unpublished decision, the appellate court affirmed the trial judge's refusal to submit a contributory negligence instruction but said he should have given the "failure to mitigate" instruction and so remanded the case for a new trial:

   Dr. Zoltan presented evidence that indicated
   that Mr. DeMario failed to follow up for
   treatment and failed to follow Dr. Zoltan's
   directives on physical therapy.... Mr. DeMario's
   own expert testified that if he had
   returned for his follow-up visits, Dr. Zoltan
   could have detected the defect and then
   would have had an opportunity to fix the
   problem. It is apparent that the defense's
   theory was that Mr. DeMario did not give Dr.
   Zoltan an opportunity, after these symptoms
   appeared, to treat him properly. Given
   this theory and the evidence presented
   by Dr. Zoltan, along with Mr. DeMario's allegation
   that Dr. Zoltan failed to properly
   fix the severed tendon, the mitigation instruction
   should have been given. (24)

The case was settled before retrial.

The outcome of the appeal of Terry's case was distressing because the defense offered no evidence that, had Terry returned for re-evaluation, Dr. Zohan would have correctly and timely diagnosed the tendon rupture and performed the corrective repair. Indeed, to the date of trial, Dr. Zoltan denied that he had caused any injury to the tendon. In retrospect, the jury was clearly disposed to reject the defense position, and it might have been better to withdraw an objection to the "failure to mitigate" instruction. Unfortunately, "fog of battle" in trial often obscures the 20/20 vision afforded by hindsight.

In medical negligence cases, we devote most of our energy, effort, and attention to developing evidence of the doctor's wrongdoing. It is important, however, not to discount the negative effect that criticisms of the patient's conduct can have on the trial outcome. You can minimize this effect by knowing the applicable legal principles, conducting effective discovery to identify and limit the factual basis of the defense, educating the trial judge with pretrial motions, highlighting the issues during jury instruction, requesting limiting instruction, and giving careful thought to presentation of evidence and argument.

Jury selection is largely a matter of personal preference and style. However, it is important not to ignore the "blame the patient" defense. Assuming reasonable leeway on the part of the trial judge, you should craft questions that focus the panel's attention on the issue, identify and strike those potential jurors who might respond favorably to the defense arguments, and secure commitments to follow the court's instructions that define the patient's responsibility.

As in all cases, the primary focus of attention in your opening statement should be on the health care provider's negligent conduct, emphasizing the choices made and the opportunities to prevent the bad outcome. To the extent that there will be evidence that, under applicable law, would permit the submission of a contributory negligence or failure-to-mitigate defense, highlight the superior knowledge, training, and duty of the health care provider.

For example, if the claim is that the patient did not disclose relevant medical history, highlight the provider's duty to ask those questions appropriate to the issue at hand--and support it with expert testimony. Similarly, if the claim is that the patient failed to follow instructions, highlight the obligation (again supported by expert testimony) to provide adequate instructions, coupled with the need to emphasize to the patient the consequences of not following the instructions.

The presentation of evidence should follow a similar pattern. Through adverse examination and expert testimony, highlight the superior knowledge and duty of the provider, the negligent choices made, and the opportunities for preventing the harm. Directly address the claimed patient "fault" and highlight the provider's duty and opportunity to anticipate and respond to the claimed inadequacies.

It is critically important to request and obtain instructions that properly state the law of contributory negligence applicable to the case where that issue is legitimately presented for jury decision. It is equally important in those cases where a jury may focus on negative lifestyle choices (such as smoking in a lung cancer case) that instructions be obtained confirming that the jury may not consider this conduct in assessing a provider's responsibility for a missed or delayed diagnosis.

When addressing these issues in closing argument, remind the jury of the commitments made during jury selection. Point the jurors to the evidence that puts the criticized conduct in proper perspective within the defendant's duty of care. Emphasize the jury instructions and, with respect to any potential comparison, remind the jurors of the disparity between the parties in knowledge, skill, and sophistication.

There is, of course, no guarantee of a favorable outcome in the trial of any medical negligence case. However, with proper analysis, preparation, and execution, you can minimize the potential for mischief posed by the "blame the patient" defense.

Notes

(1.) Voight v. Aetna Gas. & Sur. Co., 259 N.W.2d 85 (Wis. 1977); Butzow v. Wausau Mem'l Hosp., 187 N.W.2d 349 (Wis. 1971).

(2.) Madelynn R. Orr, Defense of Patient's Contribution to Fault in Medical Malpractice Actions, 25 CREIGHTON L. REV. 665 (1992).

(3.) Lambert v. Shearer, 616 N.E.2d 965, 976 (Ohio Ct. App. 1992); Ferrara v. Leventhal, 392 N.Y.S.2d 920 (App. Div. 1977); Eiss v. Lillis, 357 S.E.2d 539 (Va. 1987).

(4.) Lambert, 616 N.E.2d 965, 976.

(5.) Id. at 966.

(6.) 560 S.E.2d 491 (W.Va. 2001).

(7.) Id. at 497.

(8.) 3P.3d 1286, 1289 (Mont. 2000).

(9.) Brown v. Dibbell, 595 N.W.2d 358, 366 (Wis. 1999) (quoting Martin v. Richards, 531 N.W.2d 70, 78 (Wis. 1995)).

(10.) Id. at 367-68.

(11.) Id. at 368.

(12.) Id.

(13.) Id.

(14.) Id. at 369.

(15.) Id. at 369-70.

(16.) Id. at 370.

(17.) Carini v. Med. Protective Co., No. 00-1508, 2001 WL 541126 (Wis. Ct. App. Apr. 25, 2001).

(18.) 811 P.2d 478 (Haw. Ct. App. 1991).

(19.) Id. at 486.

(20.) Id.

(21.) 698 A.2d 459 (D.C. Ct. App. 1997).

(22.) Id. at 467.

(23.) 548 A.2d 172, 182 (Md. Ct. Spec. App. 1988).

(24.) DeMario v. Zoltan, No. 94-3257, 1996 WL 131817, at *3 (Wis. Ct. App. Mar. 26, 1996).

LYNN R. LAUFENBERG is the founder and managing partner of Laufenberg & Hoefle in Milwaukee.