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Harding v. Deiss6/27/2000
hen he allowed a "grossly intoxicated" physician to give him an injection which resulted in the patient's injury).
Courts have noted that in assisting a jury to decide a case involving the patient's fault as a defense in medical malpractice cases, it is necessary to first clarify the sequence of events in relation to the interwoven doctrines of contributory or comparative negligence, proximate cause, and avoidable consequences. Bryant v. Calontone, 669 A.2d 286, 288 (N.J. Super. Ct. App. Div. 1996). In Bryant, a patient with a heart condition was advised by his cardiologist that he must be given antibiotics upon having any type of dental work performed. According to the patient, when he arrived to have his teeth cleaned, the Dentist handed him a dose of medication and said "this is all you need." Bryant, 669 A.2d at 287-88. Within two weeks of treatment, the patient became very ill and required several serious heart surgeries. In addressing the defendant's claim that the district court erred in not issuing a jury instruction on comparative negligence, the court stated "the patient's conduct must be divided into three categories in determining whether the patient shares any fault and if so, what principles of law to apply to that fault." Bryant, 669 A.2d at 288.
"The three temporal headings under which the patient's conduct is to be examined are 1) the pre-treatment period 2) the treatment period during which the alleged malpractice occurred, and 3) the post-malpractice period." Bryant, 669 A.2d at 288. The Bryant court noted
he pre-treatment health habits of a patient are not to be considered as evidence of fault that would have otherwise been pled in bar to a claim of injury due to the professional misconduct of a health professional. Such matters are germane to the issue of proximate cause exclusively. Bryant, 669 A.2d at 289.
The Durphy court held similarly, stating where the patient's negligent act merely precedes that of the physician and provides the occasion for medical treatment, contributory negligence is not a permissible defense. Where that occurs, the doctor's negligent act is considered an intervening cause which does not bar the patient from recovering. Durphy, 698 A.2d at 467.
In Whitehead v. Linkous, M.D., 404 So.2d 377 (Fla. Dist. Ct. App. 1981) patient Whitehead consumed the drugs Valium and Darvocet in conjunction with a large amount of beer in an apparent suicide attempt. Whitehead, 404 So.2d at 378. A nurse administered Whitehead a medicine to induce vomiting. The nurse later noted that his color "didn't look right." Whitehead, 404 So.2d at 378. Whitehead lost consciousness and later died. The hospital asserted that his acts in attempting to commit suicide were a contributing cause of his death and thus, were subject to a jury instruction on comparative negligence. Whitehead, 404 So.2d at 378-79. The court held that any conduct by Whitehead before he entered the hospital which contributed to his death was not a proximate, legal cause of the damages sought, and the trial court erred in submitting the instruction on comparative negligence. Whitehead, 404 So.2d at 379. See also Spence v. Aspen Skiing Co., 870 F.Supp 542 ( D. Colo. 1993) (noting that it would be inconsistent with the reasonable and normal expectations of both parties for the court to excuse or reduce the provider's liability simply because it was the patient's own fault that she required care in the first place).
We agree with the foregoing decisions and conclude that comparative negligence as a defense does not apply where a patient's pre-treatment behavior merely furnishes the need for care or treatment which later becomes the subject of a malpractice
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