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Harding v. Deiss6/27/2000
claim. The patient's conduct before seeking medical treatment is merely a factor the physician should consider in treating the patient. Candice's actions are clearly pre-treatment conduct and as such are not to be considered as evidence of fault which may offset any negligent conduct by the Respondents. Acceptance of Respondents' argument (that Candice's act of riding a horse while having asthma is a negligent act which should be offset against any negligent act by Respondents in her treatment) would lead to an absurd result. Under such a theory, in any case where the patient was responsible for events that led to her hospitalization, the treating physician would not be liable for negligent treatment. We hold that in medical malpractice actions, jury instructions on a patient's comparative negligence are appropriate only where the patient's negligent conduct occurs contemporaneous with or subsequent to treatment. We conclude that because Candice's allegedly negligent acts were pre-treatment conduct, the District Court's issuance of jury instructions on comparative negligence was an abuse of discretion.
II. Because we have concluded that the District Court erred in giving instructions on comparative negligence, we need not address the issue of whether the District Court committed error by preventing Appellant from discussing the issue of comparative negligence during closing arguments.
III. Whether statements made by defense counsel in the jury's presence were sufficiently objectionable to warrant a mistrial.
A district court's determination of whether to grant a motion for a mistrial must be based on whether the defendant has been denied a fair and impartial trial. State v. Soraich, 1999 MT 87, 17, 294 Mont. 175, 17, 979 P.2d 206, 17. This Court's standard of review of a grant or denial of a motion for mistrial is whether the court abused its discretion. Soraich, 17.
Appellant argues that certain statements made by defense counsel during the course of the trial warrant a mistrial. Defense counsel began his opening statement with the following:
his is what this case is about. And we're going to prove it to you in a very clear and convincing manner. Let me tell you some things this case is about and some things it isn't about. We will show you that this family had lived in California for twenty some years. It was a troubled family with lots of problems. They moved to Anaconda in 1993 and brought with them a lot of problems. And in particular the problems of a sixteen year old daughter named Candice Shuck. . . . The evidence is going to show that Candice had been in trouble with the law. That she had abused drugs . . .
At this point in Respondents' opening statement, attorney for Appellant objected and approached the bench, stating " our Honor, this sort of thing is highly prejudicial. . . I think it's important that I make a motion for a mistrial, with that statement. In the alternative I ask that that be stricken and the jury admonished." The court sustained Appellant's objection and admonished the jury to disregard the statement by defense counsel. Defense counsel continued his opening statement; " he evidence will show that Candice had in her earlier life abused drugs. She had smoked even though. . ." Counsel for Appellant again objected; ". . . Your Honor this has absolutely nothing to do with a little girl who presents at the emergency room in an unconscious state. And I would ask the Court to grant a mistrial. . . I think this jury has been tainted by that statement. . . I don't think we can get a fair trial with that statement." The court denied the motion for mistrial but sustained the objection and again admonished the ju
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