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Cobo v. Raba2/18/1997
d behavior during therapy, alleged by defendant to be contributory negligence, did not arise "before or at the time" of defendant's wrongful act or omission. See Miller, supra.
As the majority correctly points out, Dr. Cobo's conduct during treatment could not constitute contributory negligence regarding his claim of an improper diagnosis. However, I believe the majority incorrectly separates when the claim for improper diagnosis arose from when plaintiffs' claim for improper treatment arose. Because the improper treatment was based upon the incorrect diagnosis, and defendant began the improper treatment at the start of the doctor/patient relationship, defendant's negligence occurred at the very beginning of Dr. Cobo's treatment. From the start of the relationship, defendant treated Dr. Cobo through psychoanalysis, a course of treatment that plaintiffs' expert witness testified does not work adequately for people suffering from major depression. Because defendant's negligence based on improper treatment arose at the start of the relationship, Dr. Cobo's conduct months and years after the beginning of treatment could not constitute contributory negligence under either a theory of improper diagnosis or improper treatment. Therefore, McGill v. French, 333 N.C. 209, 424 S.E.2d 108 (1993), cited by the majority, is inapplicable.
Further, the majority states there is no evidence Dr. Cobo's sexual activities were the cause of his depression. While this statement is correct, the evidence actually indicated that Dr. Cobo, although a "fundamentally homosexual" man, engaged in at-risk sexual activity in reaction to his depression. In fact, his concern over his homosexual tendencies was a factor in seeking treatment. Because he sought treatment for his homosexual activity as a symptom of his depression, Dr. Cobo's position is similar to the alcoholic seeking treatment for alcoholism in the example provided by the majority.
Nor do I agree with the majority that there are other grounds upon which to find contributory negligence. Dr. Cobo initially told defendant he did not wish to take medication because, as a surgeon, he could not afford to be sedated. However, because defendant improperly diagnosed Dr. Cobo, Dr. Cobo was never told his condition was biological in nature. Because Dr. Cobo was never told that his condition would not respond to psychotherapy, but would respond favorably to medication, Dr. Cobo could not make an informed decision about the medication and his initial reluctance to being treated with medication cannot be held to be negligent. Nor does Dr. Cobo's request that defendant keep no notes amount to contributory negligence. Regardless of whether defendant kept notes, he would still have been treating Dr. Cobo with psychoanalysis, which the evidence showed was an improper and ineffective method of treatment.
I find no merit to defendant's remaining arguments and would therefore allow the jury's verdict to stand. Accordingly, I would vote No Error.
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