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Wolbers v. Finley Hospital12/17/2003
he applicability of comparative negligence in wrongful-death cases in DeMoss, 644 N.W.2d at 305-07. We concluded that in order for comparative negligence to be applicable in a medical malpractice action:
patient's negligence must have been an active and efficient contributing cause of the injury, must have cooperated with the negligence of the malpractitioner, must have entered into proximate causation of the injury, and must have been an element in the transaction on which the malpractice is based. Accordingly, in a medical malpractice action, the defense of contributory negligence is inapplicable when a patient's conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim or when the patient's conduct contributes to an illness or condition for which the patient seeks the medical attention, care or treatment on which a subsequent medical malpractice claim is based.
Id. at 306.
In Fritts v. McKinne, 934 P.2d 371 (Okla. Ct. App. 1996), a case relied on in DeMoss, the patient had been seriously injured in a single-car accident, and all of his major facial bones had been broken. Fritts, 934 P.2d at 372. Five days after the accident, an oral surgeon was scheduled to perform facial repairs, and the defendant doctor was to assist by performing a tracheostomy. Id. The doctor cut or ruptured the innominate artery during the tracheostomy. Id. The patient lost a large amount of blood, failed to regain consciousness, and died three days later. Id. at 373.
The doctor in Fritts argued that the patient's innominate artery was found up in his neck area, when normally it should have been in his chest, complicating the procedure. Id. The doctor further argued that the patient was injured while driving drunk or while riding in a vehicle driven by another intoxicated person. Id. The appellate court held that a comparative-fault instruction was not warranted. Id. at 374. The court stated:
Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.
Id. (citing Martin v. Reed, 409 S.E.2d 874, 877 (Ga. Ct. App. 1991)).
We also discussed several other cases in DeMoss in which a patient's "negligence" was not relevant to later medical malpractice claims. These include: Matthews v. Williford, 318 So. 2d 480, 483 (Fla. Dist. Ct. App. 1975) (patient's failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative-fault instruction); Van Vacter v. Hierholzer, 865 So. 2d 355, 360 (Mo. Ct. App. 1993) (reversal warranted when comparative-fault instruction invited jury to apportion fault based on conduct not proximately causing death); Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178, 186-87 (Neb. 1990) (patient's failure to heed doctor's advice to lose weight may have caused pulmonary embolism but is irrelevant to the claim that doctor later negligently treated the condition); and Gravitt v. Ward, 518 S.E.2d 631, 635 (Va. 1999) (insufficient proof of patient's failure to notify doctor of breast lump to warrant comparative-fault instruction).
In the present case, the hospital contends that Wolbers' history of tobacco use, even up to the date of his admission into the hospital, was a producing cause of his death because it contributed to the blockage of his air passages. While it seems clear that smoking can produce increased secretions, such as the ones that caused a blockage to the airways of plaintiff's decedent, it seems equally clear that the present c
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