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Cobo v. Raba2/18/1997
GREENE, Judge.
Ernest Raba (defendant) appeals a judgment entered against him in the amount of $850,000 after a jury found that Michael Cobo (Cobo) was injured by defendant's negligence.
Defendant is a psychiatrist practicing in the Durham, North Carolina area. Cobo began to see defendant as a patient when Cobo moved to Durham to accept a job at Duke Medical School. Cobo had previously been diagnosed and treated for depression during medical school and during his residency in Miami. During treatment for depression in Miami, Cobo had been treated with an antidepressant drug which produced adverse side effects. In late 1980 Cobo began a course of treatment with defendant who diagnosed Cobo as suffering from chronic depression. The treatment consisted of psychoanalysis four times a week which continued until December 1986, when Cobo tested positive for HIV.
Cobo told defendant that he did not wish to be treated with medication because his previous treatment with medication had "affected him badly" and had been unhelpful. Further, during the initial sessions defendant did not take notes pursuant to Cobo's request. Cobo was worried about protecting his identity and keeping the treatment a secret.
During his time in psychoanalysis with defendant, Cobo's depression became worse, which negatively affected his marriage, relationships with co-workers, and his job to the point that he was eventually removed from Duke's tenure track. Beginning in 1982 or 1983, he increased his abuse of alcohol and his use of marijuana, which he had begun using before seeking treatment from defendant. In 1981 Cobo began having sex with males "on a monthly basis," including sex with male prostitutes. Cobo had sex with other men before he began seeing defendant, but only infrequently. Defendant advised Cobo that he "was making some very dangerous choices [about sexual partners and homosexual activity] and recommended that they stop," and talked to Cobo about the risk of sexually transmitted diseases.
After Cobo was diagnosed with HIV, defendant began to treat him in a more supportive manner, offering more practical feedback and suggestions on ways to deal with his HIV status, including getting medical care, his substance abuse and how to tell his wife. After being diagnosed with HIV, defendant prescribed a medication for Cobo to treat his anxiety as well as depression and continued to see defendant four times a week. In December 1988 the doctor-patient relationship between Cobo and defendant was terminated and Cobo began seeing another psychiatrist who prescribed an antidepressant medication. Once the medication took effect, Cobo's depression improved.
Dr. John Monroe, Jr., an expert in the field of psychiatry, testified that "major depression," from which Cobo was suffering, was a "biologic disregulation" that has to do with "chemical imbalances."
Cobo and his wife Virginia Cobo (collectively plaintiffs) filed a complaint against defendant seeking damages and alleging misdiagnosis and negligent treatment. Plaintiffs' complaint also alleged that "early on in the treatment" defendant "discouraged the use of any medications" and "failed to prescribe appropriate medications," continued to treat Cobo with psychotherapy when he knew or should have known that it was less effective than other methods, including prescribing medications, and defendant "failed to keep notes on his sessions with [Cobo] in order to follow the course and effect, or lack thereof, of his therapy."
Defendant claimed as affirmative defenses that Cobo was contributorily negligent and that the claims for acts occurring prior to December 1986 were barred by the statute of limi
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