How do I blame thee? Let me count the ways
Trial; May, 2006
Lynn R. Laufenberg’s article discussing the "blame the patient" defense in medical malpractice litigation is divided into three categories, each one relates to a different way the plaintiff can be blamed for the negligent care received. The author describes each one and offers suggestions on how to counter-act this type of affirmative defense through discovery, pretrial motions, and jury instructions.
Laufenberg first discusses contributory negligence and offers the example of a past case in which Susan, a life-long smoker, sought treatment from a new primary care physician for a chronic cough. Chest films reviewed by a radiologist revealed an abnormality in the upper lobe of Susan’s right lung and recommended a comparison with prior films. The comparison was never done and when Susan presented with persistent cough and shortness of breath to another doctor in the same group two years later, a CT scan was ordered. The scan revealed a four-centimeter mass in the upper lobe of the right lung. The malignant mass was too far advanced to be removed and chemotherapy and radiation treatment were unsuccessful. Susan died a year later.
During litigation the defense asserted contributory negligence as an affirmative defense saying that Susan’s doctor had repeatedly explained the risks of smoking, that she caused her cancer by smoking and continuing to smoke after being diagnosed with lung cancer. The plaintiff filed pretrial motions to preclude mention of contributory negligence at trial on the basis that case law "recognizes that the plaintiff seeks compensation only for those injuries that the failure or delay caused. The physician’s duty is to accurately diagnose and properly treat the outpatient’s condition, regardless of the circumstances that produced it." The author continues by saying most courts dictate that a patient’s conduct must be concurrent or contemporaneous with the physician’s negligence to be considered contributory.