 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kildahl v. Tagge12/27/1996
efendants contend that the court properly instructed the jury on comparative negligence. Under the circumstances of this case, we agree with plaintiffs.
Unlike Songer v. Bowman, supra, there is no contention here that decedent failed in any respect to follow the instructions of these defendants in her treatment. Hence, the analysis in that case fails to support defendants' argument here.
In Blackman, the plaintiff was admitted to an emergency room in an intoxicated state with a scalp laceration. While being treated for the laceration, the plaintiff regurgitated and inhaled the vomit into her lungs. This resulted in permanent brain damage.
The Blackman plaintiff requested an instruction that it was not a defense to medical malpractice that her conduct prior to admission at the emergency room may have caused or contributed to her medical condition. A division of this court disagreed because there was some evidence that the plaintiff's regurgitation and aspiration were the direct result of her intoxication and not of any act or omission by the medical staff. In addition, other evidence indicated that the emergency room staff had encountered difficulty in determining whether the plaintiff's symptoms resulted from head trauma or intoxication. Finally, substantial evidence was presented both that the plaintiff's inability to provide an adequate medical history for the emergency room staff and her combative and resistive behavior interfered with the staff's diagnosis and treatment.
As a result, the Blackman court concluded that the plaintiff's conduct was neither remote nor distinct from the issues relative to medical malpractice. Accordingly, it concluded that the cases relied upon by the plaintiff did not support the requested instruction because those cases concerned remote conditions or conduct that furnished the occasion for medical malpractice.
Here, even if we assume that the recommendation from the emergency room doctor four years earlier meant that decedent should consult a surgeon even if the pain did not persist, we conclude that the decedent's failure to do so was distinct and remote to the causation of her death. See Matthews v. Williford, supra (patient's failure to follow medical advice to stop smoking and lose weight 10 years prior to heart attack was not a legal cause of his death from negligent treatment). We arrive at that Conclusion because no evidence was presented that her prior failure to obtain treatment in some way prevented defendants from properly diagnosing and surgically treating her current condition. See Jensen v. Archbishop Bergan Mercy Hospital, supra (patient's failure to follow medical advice to lose weight resulted in the need for treatment of pulmonary embolism but did not bar the claim for supervening negligence in treatment).
Indeed, it is undisputed that the incarceration occurred within hours of her admission to the emergency room and subsequent surgery in 1992. Conversely, there was no evidence suggesting that decedent failed to provide an adequate medical history or that she failed to cooperate in the context of the proposed treatment by defendants. Hence, we conclude that, under Blackman, decedent's conduct was sufficiently remote and distinct from defendants' medical treatment so as to preclude reliance upon that conduct to support an instruction on comparative negligence.
Therefore, the trial court erred in instructing the jury on comparative negligence. See Spence v. Aspen Skiing Co., supra (patient's failure to follow dietary regimen causing dizzy condition could not be relied upon for comparative negligence instruction where emergency medical technician injured patient's arm in administ
Page 1 2 3 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|