Patient fails to return as directed — Is that an adequate defense?
April 1, 2000 34 minutes read
Patient fails to return as directed — Is that an adequate defense?
In this month’s issue, we consider the effect that a patient’s failure to return as directed for follow-up care may have on that patient’s subsequent malpractice lawsuit against the original treating physician. Most physicians probably correctly recognize that responsibility for a patient’s medical outcome is not an entirely one-way street. That is, the responsibility for the result is not exclusively the physician’s. Rather, the patient shares the responsibility for his or her care. This patient responsibility includes, for example, responsibility to provide an honest and complete history, to cooperate during examination, to be compliant with the physician’s treatment plan, and to follow the physician’s instructions, including when to return for follow-up.
Many physicians have also probably heard the term "contributory negligence" and might understand that it refers to a defense that the physician may assert in answer to a claim of malpractice. In essence, contributory negligence is an assertion that the bad outcome was not the defendant physician’s fault; rather, it was actually caused by the negligence of the patient. For example: "If she had taken the medication as directed, everything would have been fine;" or "If he had returned for a recheck in two days as I instructed him, we would have detected the complication at an early stage, and we would have been able to treat it such that everything would have been fine."
Most states no longer follow the unduly harsh doctrine of contributory negligence that serves to deny a plaintiff any recovery if the patient has been at all negligent, however minor that negligence might have been. The doctrine of contributory negligence has now largely been replaced by the comparative negligence rule, whereby damages are prorated among all parties whose negligence collectively resulted in the injury. For example, if a defendant was 10% responsible for plaintiff’s injury, that defendant will be held responsible for 10% of the total damages.
Another legal doctrine, avoidable consequences, is theoretically quite different than contributory/comparative negligence but is, in practice, not so clearly distinct. While less often invoked than contributory/comparative negligence, it may more accurately describe a patient’s responsibility for failure to return for follow-up as directed by a physician. In this article, we will discuss cases involving each of those doctrines.
Contributory Negligence
Contributory negligence is a defense to a negligence action in which the defendant asserts that the plaintiff’s own negligence was a contributing cause to his or her injury. In a medical malpractice action, the physician’s conduct will be based upon the standard of care for like physicians and will require expert testimony. On the other hand, the plaintiff’s contributory negligence will be judged on a reasonable person standard (i.e., what a reasonable person would do in a similar circumstance), and the jury will be allowed to decide this without benefit of expert testimony.
Case No. 1: Jones v. Angell.1 In this case, the Indiana Supreme Court considered the defendant’s contributory negligence defense — specifically, a patient’s failure to return for further treatment as directed by his physician. The court was explicit in its strict application of the doctrine of contributory negligence, as was the usual practice at the time.
The plaintiff had sued Dr. Angell for malpractice and claimed that the doctor had improperly reduced and treated his fractured arm. Dr. Angell had apparently reduced and treated the patient’s fractured arm with the assistance of another physician, Dr. Richardson. After treating the fracture, Dr. Angell instructed the patient to return for further treatment promptly if he began to suffer pain. The patient did begin to suffer pain in his arm, but contrary to Dr. Angell’s instructions, did not return for further treatment until a week had passed. The case report does not indicate exactly what damage the patient ultimately suffered as a result of Dr. Angell’s alleged negligence.
At trial, the court instructed the jury that it could consider whether the plaintiff had contributed to his injury and, if the plaintiff had, there could be no recovery from Dr. Angell. The jury returned a defense verdict and the plaintiff appealed. Among the errors claimed by the plaintiff on appeal was the trial court’s instruction to the jury that any contributory negligence on the part of the plaintiff would necessitate a verdict for the defense.
Commentary: The Indiana Supreme Court, in upholding the lower court’s verdict, endorsed that court’s jury instructions regarding contributory negligence: "If you find that the injuries of which plaintiff complains were caused wholly or in part by his own acts or negligence, then he can not [sic] recover."2 The key words are "or in part." While it is certainly understandable that, if the plaintiff was wholly (or even largely) responsible for his or her injury, the physician should not be held liable, the inclusion of "or in part" means that, according to the doctrine of contributory negligence, if the plaintiff’s injury was caused in any way by the plaintiff’s own negligent conduct, the plaintiff recovers nothing. The rule is strict. That is, the relative degree of responsibility of the parties does not matter. For example, if the patient suffers an injury that is 95% caused by the physician’s negligence and only 5% by the patient’s own negligence, the patient cannot recover anything from the physician. As stated by the court: "A party seeking to recover for an injury must not have contributed to it in any degree. . . . If the contributory negligence of the patient united in producing the injuries complained of, the physician is not liable for damages therefor."3
Case No. 2: Serafino Pantaleo v. Our Lady of the Resurrection Medical Center.4
In this case, the plaintiff, who was the deceased patient’s father, brought suit against the hospital, Our Lady of the Resurrection Medical Center ("OLRMC") in Chicago, and the emergency physician, Dr. Alison Smith, for the alleged wrongful death of his son, Joseph. A contributory negligence defense resulted in a dramatic reduction in the damages awarded to the parents.
On Nov. 18, 1988, at approximately 3 a.m., Mr. Serafino Pantaleo brought his 17-year-old son, Joseph, to OLRMC’s emergency department because he was complaining of pains in his right shoulder and in the right axilla. Mr. Pantaleo was also concerned because he had noticed "a red mark under Joseph’s right armpit."5
After their arrival at OLRMC, nurse Terri Aquino examined Joseph. She recounted at trial that "Joseph’s vital signs were normal, and he did not have a fever."6 According to the nurse, Joseph’s only complaint was pain in the right axilla. Nurse Aquino testified that she examined Joseph, including an inspection of his right extremity "from his fingertips up to his shoulder."7 During this examination, she did not notice anything that would have indicated to her that there was an "infectious disease process."8 In particular, nurse Aquino testified that she "did not notice a reddened or infected cut on Joseph’s right hand."9
Joseph was next examined by Dr. Smith, a board-certified emergency physician. At trial, Dr. Smith testified that Joseph had told her that he was "having pains in his right armpit, right shoulder, and right upper arm."10 In conducting a physical examination of Joseph, Dr. Smith noted that he did not have a fever and that his vital signs were all normal. In particular, Dr. Smith did not notice "a wound on Joseph’s right hand that was reddened, tender, or swollen, or which would have suggested an infection."11 As a result, Dr. Smith testified that she ruled out the possibility of infection as an etiology of Joseph’s pain and did not do any "work-up" for the possibility of infection. Dr. Smith’s diagnosis was "shoulder strain." She prescribed pain and anti-inflammatory medications for the shoulder strain and discharged Joseph in the care of his parents. At the time of discharge, Dr. Smith instructed Joseph and his father "to return to the emergency room if Joseph experienced any increased pain, numbness, or weakness."12
Joseph’s mother, Antoinette Pantaleo, recounted the events that occurred on the days following Joseph’s release from the emergency department. She had not accompanied Joseph and his father to the hospital originally because she had been working. She testified that when she returned home from work after Joseph and his father had returned from the hospital, her husband told her that "everything was fine and that Joseph would feel better in a few days."13
During the next few days, Joseph complained of fever, chills, and pain in his right arm. Mrs. Pantaleo testified at trial that, despite those complaints, she did not realize that Joseph might be seriously ill until he was admitted to Gottlieb Hospital in Melrose Park, IL, on Nov. 21, 1988, three days after his original emergency department evaluation at OLRMC.
Mr. Pantaleo also testified as to the events that transpired between Joseph’s emergency department visit on Friday and his subsequent admission to Gottlieb on the following Monday. He testified that on Saturday he had noticed "a redness on Joseph’s chest."14 Joseph also complained of increasing pain in his right arm over the weekend. It was Mr. Pantaleo’s testimony that Joseph had no vomiting, diarrhea, chills, or fever, and it was apparently on this basis that he had concluded that there was nothing seriously wrong with his son. As the weekend progressed, Mr. Pantaleo noticed that the redness on Joseph’s chest had extended to his face and, by early Monday morning, he noticed "a red line going up Joseph’s right arm and Joseph [was] crying in pain."15 It was at this point that he took Joseph to the emergency room at Gottlieb Hospital.
After their arrival at the Gottlieb Hospital emergency room on Nov. 21, 1988, Joseph was examined by Dr. Fred Fishman, a board-certified emergency physician, at approximately 6 a.m. He was found to have lymphangitis extending from his right thumb to his forearm. Importantly, Joseph gave a history of "an infection on his right thumb of approximately five to six days" — that is, beginning two or three days prior to his evaluation at OLRMC the previous Friday. Dr. Fishman’s examination of Joseph’s thumb revealed that it "was reddened, swollen, and warm with crusty areas surrounding the infection and these observations were consistent with the history Joseph had given him."16 It was Dr. Fishman’s conclusion that the pain that Joseph was complaining of in his right axilla was directly related to the infection in his hand and forearm: axillary lymphadenopathy. Dr. Fishman consulted Dr. Donna Hanlon, an infectious disease specialist.
Dr. Hanlon examined Joseph at approximately 9 a.m. and made the diagnosis of streptococcal toxic shock syndrome that had originated in the right thumb wound. At trial, Dr. Hanlon testified that streptococcal toxic shock syndrome was a very rare diagnosis in 1988 and that there was, to her knowledge, only one published medical article on it. Dr. Hanlon’s consultation included a notation that Joseph told her that "his thumb was painful and red on Nov. 16 [two days prior to his evaluation at OLRMC], and that he had cut his right thumb about one week prior to that date."17 It was her conclusion that "Joseph was an accurate historian" and therefore, "if it [the thumb] was painful and red on the 16th and again on the 21st when I saw him, it probably was also [painful and red] on the 18th."18 Dr. Hanlon subsequently diagnosed Joseph as having cellulitis of the arm, lymphangitis, hypotension, and renal failure.
At approximately 5 p.m. that day, Dr. Hanlon again examined Joseph. She found him to be conscious but intermittently confused. His temperature was 99.8°F, and the pain in his axilla was increasing.
On Tuesday at 4 a.m., the day following his admission, Joseph’s temperature was up to 104.2°F and he was "confused." At 6 a.m., Joseph was in renal failure and he had developed a severe metabolic acidosis. At 8 a.m., Joseph was intubated and placed on mechanical ventilation. Joseph became hypotensive, suffered a cardiac arrest, and died at 5 p.m. on Nov. 23, two days after his admission. Dr. Hanlon’s final diagnosis was "streptococcal toxic shock syndrome, secondary to cellulitis lymphangitis of the right upper extremity, and acute renal failure, secondary to sepsis."19
At trial, the plaintiff called an infectious disease expert who opined that there must have been signs of infection on Nov. 18 when Joseph was seen by Dr. Smith at OLRMC. This was supported by Dr. Hanlon who, as mentioned above, opined that because the thumb was painful and red on Nov. 16 and it was also painful and red on Nov. 21, it must have been painful and red on Nov. 18 when he was seen by Dr. Smith at OLRMC. The plaintiff’s experts also testified that, had Joseph received appropriate antibiotics on Nov. 18 or Nov. 19, he might have lived.
Plaintiff’s emergency medicine expert opined that Dr. Smith had deviated from the applicable standard of care in her treatment of Joseph for the following reasons:
• failure to properly examine and evaluate Joseph upon his initial presentation;
• failure to take a proper history;
• failure to do a proper examination based upon knowledge of Joseph’s history;
• failure to diagnose infection that existed in his extremity at the time of his examination;
• failure to treat the infection;
• failure to admit him to the hospital.20
It was also the emergency medicine expert’s opinion that Dr. Smith’s deviations from the standard of care were the proximate cause of Joseph’s death.
The defense called experts in emergency medicine, orthopedics, and infectious diseases. The emergency medicine expert testified that, based principally on the normal vital signs and the absence of any indication in the medical record that there was an infection on Nov. 18, Dr. Smith had complied with the standard of care. On cross-examination, however, he conceded that, "if [Mr. Pantaleo] was correct about the red spot under Joseph’s armpit on Nov. 18 [the day he was seen at OLRMC], then the standard of care would have called for a more vigorous consideration of the possibility of infection.’"21 He also conceded that "if Joseph’s thumb was red and swollen when Dr. Smith examined him on Nov. 18, then a failure to work-up’ the possibility of infection would constitute a deviation from the applicable standard of care."22
It is not difficult to understand that the jury found the plaintiff’s expert’s testimony more compelling than the defense’s experts, particularly when Dr. Hanlon’s testimony supported the plaintiff’s theory. There was credible evidence that the thumb was infected on Nov. 16 and Nov. 21. The jury apparently agreed with the plaintiff’s theory that the thumb must, therefore, have been infected on Nov. 18.
Our particular interest in this case relates to the contributory negligence defense raised on the eve of the trial. At the conclusion of the trial, two counts were submitted to the jury: a "survival count" which represented the damages to Joseph; and a wrongful death count which represented damages to the parents for the loss of their son. The jury returned a verdict for the plaintiff on the survival count in the amount of $1,000,000 for pain and suffering and $250,000 for disability. The jury also returned a verdict for the plaintiff on the wrongful death count. However, the jury awarded zero damages to Joseph’s parents because it found them to have been contributorily negligent for the death of their son. On motion of the defendants, the court, in keeping with the contributory negligence rule, vacated the judgment for plaintiff on the wrongful death count and entered judgment for the defendants on this count.
The defense appealed the survival count judgment and the plaintiff appealed the wrongful death judgment. On appeal, the Appellate Court of Illinois defined contributory negligence as "the failure to exercise that care which, under the circumstances presented by the evidence, a reasonably prudent person would take to avoid injury."23 Because application of this rule involves a judgment as to what a "reasonably prudent person" would have done, expert testimony is not required to assist the jury in its determination.
The court held that the jury’s finding that the parents were contributorily negligent, and that such negligence was the proximate cause of Joseph’s death, was reasonable. According to the court, Joseph’s father was told to "return to the hospital with Joseph if Joseph experienced any increased pain, numbness, or weakness."24 However, even though both parents testified that Joseph complained of increasing pain in his arm over the weekend, they did not take him back to the hospital until Monday, three days after his initial evaluation. The court also noted that the plaintiff’s own expert established proximate cause in testifying that, had Joseph been brought back to the hospital on Saturday, he probably would have survived.
Commentary: In this case, contributory negligence on the part of the parents defeated their claim for wrongful death, but not the patient’s survival claim for pain and suffering and disability. The discharge instructions were quite reasonable, but still did not serve to save the defendants from all liability. The case was, undoubtedly, very difficult for the defense because there was credible evidence that there were signs of infection on Nov. 16 and Nov. 21 and, therefore, the jury could reasonably conclude that there must have been signs of infection on Nov. 18, as well.
This case provides three lessons of general applicability in the emergency department. First, take a careful and complete history from the patient and anyone else who might have relevant information — in this case, the father. Second, while it is not necessary, or logistically possible, to perform a complete physical on every patient who presents to the emergency department, your examination must not be so narrowly focused that reasonably likely causes of the patient’s complaint are overlooked. For example: a patient with a complaint in his or her extremity must, at a minimum, have the entire extremity examined, a patient with lower chest pain should have the abdomen examined, and a patient with upper abdominal pain should have his or her chest examined, etc. Third, always add time specificity to your discharge instructions. I recommend that discharge instructions contain specific advice to: 1) return immediately if x, y, or z occurs; and 2) return for reevaluation if you are not completely better in x number of days. The later instruction might have resulted in Joseph’s parents returning him to the hospital before Monday, at which time the outcome might have been different.
Case No. 3: Lauderdale v. United States of America.25
In this case, the care provided at a military medical facility was alleged to have been negligent. Events of this case began in the emergency department, but the primary events that led to the lawsuit occurred at the base family practice clinic. During August of 1984, Mr. Lauderdale, a 51-year-old retired staff sergeant, began experiencing shortness of breath during his normal activities. He noticed that, after going to bed at night, he would experience "wheezing in his lungs, which would be relieved only if he got up during the night and went back to sleep in a sitting position in a chair."26
Mr. Lauderdale first sought treatment for this problem on Aug. 7, 1984, when he went to the emergency room at the Maxwell Air Force Base hospital in Montgomery, AL. The physician who examined him that evening told him he suspected a "mild infection or flu," and prescribed an antibiotic. During the next month, Mr. Lauderdale’s problems continued, and he returned to the emergency room on Sept. 10 for reevaluation. At that time, he complained to the examining physician that his lungs were congested and that for the last four or five days he had been "unable to sleep, unless sitting up."27 In addition, he said that he was experiencing "shortness of breath with normal activity." The examining physician noted "fluid in both of Lauderdale’s lungs [rales/crackles?], which he suspected was caused by a virus."28 He ordered laboratory studies and an X-ray, and referred Mr. Lauderdale to the family practice clinic at the base for an appointment the following day.
On Sept. 11, the following day, Mr. Lauderdale was examined by a family practitioner at the base clinic. Mr. Lauderdale was still complaining of shortness of breath and an inability to sleep unless he was sitting up. In addition, the physician noted that Mr. Lauderdale was also suffering from "chills, night sweats, and wheezing."29 The physician "tentatively" diagnosed Mr. Lauderdale’s condition as "either walking pneumonia’ . . . or tuberculosis."30 The results of tests to differentiate the two possibilities were, according to the physician, inconclusive. Mr. Lauderdale was again given antibiotics with directions to return in three days.
Mr. Lauderdale was unable to schedule an appointment for Sept. 14, but he returned anyway to the clinic as a "walk-in" patient. He saw the same physician that he had seen on his previous visit and told the doctor that he was now "feeling better and that he had slept all night the night before."31 The physician reported being "uncertain of his diagnosis" after examining Mr. Lauderdale but was of the impression that he had "a form of pneumonia or bronchitis."32 At trial, the physician admitted that "something didn’t fit’ about his diagnosis" — "while Lauderdale’s symptoms were consistent with pneumonia, the test results indicated that it would have to be an atypical strain of pneumonia for that to be the answer."33 Mr. Lauderdale was continued on antibiotics and told to "return the next week for a follow-up exam."34
Mr. Lauderdale returned to the family practice clinic 11 days later, Sept. 25. At that time he complained of "nocturnal wheezing," but the treating physician found his lungs to be clear. The doctor did note that his weight had increased by six pounds and that he had edema in his feet and ankles. For the first time an "unusual heart sound" was noted. It was at this time that a diagnosis of congestive heart failure was first suspected.
The physician felt that, because of Mr. Lauderdale’s age, long history of smoking, and the "unusual heart sound" that the doctor felt was "consistent with a weakening of the heart muscle," Mr. Lauderdale must have been suffering from atherosclerotic cardiomyopathy and, therefore, prescribed digoxin. He then made a note on the chart to "recheck next week."35 It was this advice, and Mr. Lauderdale’s failure to follow it, if it was ever actually communicated to him, that made contributory negligence an issue in this case.
The doctor testified that "as far as he could remember, he told Lauderdale to come back to the clinic in a week for another follow-up appointment."36 There was, however, no proof in the medical record that this advice had ever been communicated to Mr. Lauderdale. The court noted that there was "no evidence that an appointment was scheduled for a follow-up visit for Lauderdale after Sept. 25, or for any tests to determine the cause of his suspected heart condition."37
On Oct. 10, 1984, Mr. Lauderdale was brought by ambulance to the Maxwell Air Force Base hospital emergency department complaining of shortness of breath. His condition deteriorated rapidly, and he died in the emergency room. The cause of death was "congestive heart failure, triggered by a malfunction of the mitral valve of the left atrium of his heart [presumably mitral insufficiency]."38 The family brought suit alleging a failure to properly diagnose the cause of Mr. Lauderdale’s congestive heart failure and negligent treatment with digoxin. It was apparently the plaintiff’s theory that it was negligent care not to have referred him for possible surgical repair of his mitral valve.
The defense asserted that Mr. Lauderdale had been contributorily negligent because he failed to return to the family practice clinic as directed one week after his Sept. 25 appointment as, the defense claimed, his physician had advised. All experts agreed that, had Mr. Lauderdale returned to the clinic within a week after his Sept. 25 appointment, "and if the doctor had then conducted the requisite tests to determine the cause of his heart problem and treated it accordingly, Lauderdale would probably not have died."39
In concluding that Mr. Lauderdale’s failure to return did not constitute contributory negligence, the court found that even if the physician had actually instructed Mr. Lauderdale to return in one week (and there was no evidence in the record that he had), the physician had failed to make it clear to Mr. Lauderdale that there was "any newly realized sense of jeopardy to be associated with his troubled sleep" reported to the doctor on Sept. 25.40 In addition, no appointment was scheduled for the recheck, and no mention was made in the record or to Mr. Lauderdale of any tests to be conducted to elucidate the cause of his congestive heart failure. In short: "There was nothing that would have distinguished in Lauderdale’s mind the importance of his return to the clinic the next week."41 The court concluded that, based upon the medical record, it would have been Mr. Lauderdale’s impression that he would need to return to the clinic only if he developed additional distress; otherwise he need not return in one week."42 The contributory negligence defense was, therefore, dismissed.
Commentary: In this case, there was a note in the chart for the patient to "recheck next week." There was, however, not sufficient evidence that this instruction was ever communicated to the patient. There was also nothing in the record to indicate that the physician had told Mr. Lauderdale of the importance of returning in one week for re-evaluation. The lesson of this case is that it should always be clear in the medical record that the patient received and understood his or her discharge instructions. In the emergency department, it is standard to read discharge instructions to the patient and have the patient sign them. This documentation at least provides evidence of the patient’s receipt of the instructions, if not his or her understanding of them. In the case of clinic visits, it is not routine to have discharge instructions signed after each visit. The clinic should, however, have given Mr. Lauderdale an appointment for his recheck before he left on Sept. 25.
There was testimony at the trial from the family practitioner that physicians at Maxwell were scheduled to see 25-45 patients per day, and that this was "too many patients for a doctor to handle," and that this adversely affected the physicians’ ability to effectively follow up on their patients and have adequate time to talk to their patients regarding their treatment. In addition, the physician testified that "the system by which the clinic operated at Maxwell limited the doctors’ power over scheduling of follow-up appointments."43 Each physician was only allowed to schedule two patients for follow-up reevaluations. All other appointments had to be scheduled through a central office that had a three-week to three-month backlog generally. The only alternative was for the patient to return as a "walk-in."
This testimony by the physician was certainly forthright. However, this testimony served only to make the plaintiff’s case. As emergency physicians, we are frequently too busy to provide the level of care we might be more comfortable providing. That is not the patient’s fault and, baring a true disaster situation, will not provide a meaningful defense for a physician’s negligence. In such cases, the plaintiff will likely make a persuasive argument that, if it was too busy for one physician, then a second physician should have been scheduled. We all know why that is not always practical. Juries, however, may interpret our failure to "adequately" staff the department as a conscious decision, motivated by economic self-interest.
It is also noteworthy that this is yet another case involving repeat visits. This patient was labeled as having an infectious process on the first visit, and it was not until the fourth visit that the correct diagnosis of congestive heart failure was finally entertained. The brief facts given in the case suggest that, from the start, this patient’s symptoms were suggestive of congestive heart failure (shortness of breath, paroxysmal nocturnal dyspnea, and orthopnea). It is always important to review a patient’s history, including his recent visits. The challenge is to not allow yourself to be unduly influenced by the previous physician’s impressions and to always take a "fresh look" at all patients, no matter how many times they may have been seen.
Avoidable Consequences
Similar to the doctrine of contributory negligence is the rule of "avoidable consequences." Like contributory negligence, this rule bars, at least in part, a plaintiff’s recovery of damages when such damages could have been avoided by the plaintiff’s reasonable conduct. Both of those common law rules are based upon a policy of denying recovery to a plaintiff who contributed to his own injury. The two are, in theory, quite different. In a jurisdiction that follows the doctrine of contributory negligence, the plaintiff’s negligence will be a complete defense to the plaintiff’s negligence claim. That is, the plaintiff will recover nothing. Avoidable consequences, contrary to the doctrine of contributory negligence, is a rule of damages and has nothing to do with a plaintiff actually causing his or her injury. Avoidable consequences operates to reduce the amount of damages awarded to a plaintiff, not to eliminate an award of damages.
The legal distinction between the two is relatively easy to see in the case of an automobile accident, but, as the following case demonstrates, is much less clear in the medical malpractice context. It is generally explained that, contributory negligence is negligence on the part of the plaintiff before any damage has occurred and acts to totally bar the plaintiff’s recovery. On the other hand, the avoidable consequences rule states that negligence on the part of the plaintiff after the plaintiff’s injury, but while some additional injuries might yet be averted by the plaintiff should reduce (not totally bar) plaintiff’s recovery. It is really a failure on the part of the plaintiff to mitigate his or her damage. For example, when a plaintiff is injured in an automobile accident in which the plaintiff was also negligent, and then he or she fails to make a reasonable effort to obtain medical care for his injury. The doctrine of contributory negligence, if applicable, would totally bar any recovery by plaintiff. However, the avoidable consequences rule would only result in a reduction in his damages to the extent that the plaintiff’s negligent failure to seek care for his injury aggravated it.
There is nothing simple about differentiating contributory negligence and avoidable consequences in medical malpractice cases, and we will happily leave further consideration of the difference to the Socratic interactions of law professors and students. The bottom line is that it is much less of an issue now that the doctrine of contributory negligence has largely been abandoned in favor of comparative negligence.
(Editor’s note: After reading the facts in the following case, and before reading on, consider whether you think the emergency physician was negligent and, if so, should have been held liable.)
Case No. 4: Dallas McKain v. Kenneth Bisson, MD.44 At approximately 11 p.m. on June 1, 1989, Mr. McKain, a truck driver, left his home near Louisville, KY, on a trip to Michigan. At about 6 a.m. the following morning, June 2, he began to experience diplopia and chest pain. He stopped his truck in Angola, IN, and was transported by ambulance to a hospital in Angola, where he arrived in the emergency department at 9:20 a.m.
The medical record indicated that Mr. McKain had begun suffering "chest pain which radiated to both arms around 6 a.m., with shortness of breath and sweatiness."45 It was also noted on the record that he had undergone triple bypass surgery in 1985. Shortly after arriving in the emergency department, Dr. Kenneth Bisson, the emergency physician, ordered nitroglycerin, "presuming that McKain may have been having heart problems."46 The nitroglycerin gave Mr. McKain some relief and he was able to sleep. Dr. Bisson ordered a number of tests, "the results of which Dr. Bisson did not interpret as indicating that McKain was having a heart attack."47 Dr. Bisson diagnosed Mr. McKain’s condition as "noncardiac chest pain, anxiety, and vestibular neuronitis." It was not clear from the record in the trial court whether Mr. McKain had told Dr. Bisson just prior to his discharge that he still had chest pain.
Dr. Bisson’s written instructions were to "use medication as directed" and "return if pain or weakness worsens."48 Both Mr. McKain and Dr. Bisson signed the emergency department record just below the discharge instructions. Mr. McKain, however, testified that he did not remember signing the emergency department record, did not receive a copy of the discharge instructions, and was not told by Dr. Bisson to return if his pain worsened.
Mr. McKain was discharged at 11:20 a.m. and taken to a local hotel by the police. There was no taxi service in town. Mr. McKain was then picked up by relatives at 5 p.m. and driven to Indianapolis where his son lived. Mr. McKain continued to have chest pain during the trip and his son was going to take him to a hospital in Fort Wayne, IN, but Mr. McKain insisted on seeing his own doctor in Louisville. Mr. McKain’s girlfriend picked him up in Indianapolis to take him on to Louisville. She also attempted to get Mr. McKain to stop at a hospital enroute, but Mr. McKain refused. Mr. McKain was finally admitted to a hospital in Louisville at 1:29 a.m. on June 3 where it was determined that "he had suffered a heart attack at some point on June 2."49
At trial, there was conflicting expert testimony as to whether Dr. Bisson’s alleged negligence was a proximate cause of Mr. McKain’s injury, an acute myocardial infarction (AMI). While it was established that the AMI had occurred on June 2, it was not clear whether it had occurred prior to, during, or after Mr. McKain’s treatment in the emergency department in Angola. Importantly, the plaintiff was unable to establish that the damage he suffered had not occurred prior to Dr. Bisson’s treatment in the emergency department. As a result, Mr. McKain was unable to prove that Dr. Bisson’s alleged negligence could have caused his injury and the trial court verdict was for the defense.
Among other alleged errors, the plaintiff appealed the trial court’s avoidable consequences instruction to the jury, which included an instruction that the jury could consider the defendant’s assertion that: "As a proximate result of Dallas McKain’s alleged unreasonable failure to follow the discharge instructions of Doctor Bisson, he sustained damages which could have reasonably been avoided if the instructions had been followed."50 That is, Mr. McKain was responsible for his injury because he could have avoided it. The defense argued that if Mr. McKain was suffering continued chest pain, he should have returned to the emergency department, or another hospital before June 3 and, had he done so, the damage to his heart would have been less. The Seventh Circuit Court of Appeals upheld this instruction and noted that Indiana "follows the general rule that a plaintiff’s recovery for damages may be reduced if he fails to obey his physician’s instructions and thereby exacerbates or aggravates his injury."51
The court then addressed the defendant’s contributory negligence defense. Interestingly, the substance of the defense had nothing to do with Mr. McKain’s actions in the period of time immediately surrounding his AMI. Rather, the claim was that Mr. McKain had been negligent in continuing to smoke cigarettes after his 1985 bypass surgery. That practice, of course, was contrary to his physician’s advice. The trial court had granted the plaintiff’s motion for summary judgment on this defense after the close of evidence. The Appeals Court rejected the plaintiff’s appeal that the judge’s preliminary instruction to the jury, which described this defense and Mr. McKain’s smoking at the beginning of the trial was prejudicial error. The defense verdict was upheld.
Commentary: In this case, the avoidable consequences rule was held applicable for the plaintiff’s actions after his emergency room visit and AMI. That was the time at which he became responsible for a failure to mitigate his damages by promptly returning to a hospital. Contributory negligence was not at issue during that time period because, according to the court, the damage was already done. If that’s not perfectly clear, it is certainly understandable. Distinguishing the two rules is often confusing.
Case No. 5: Quinones v. City of New York52
The various states differ in their handling of negligence on the part of the plaintiff and the distinction between contributory negligence and avoidable consequences is not always clear. In this case, the New York Appellate Division considered a case in which the defendant physicians claimed a defense of contributory negligence based upon the plaintiff’s failure to return for a follow-up appointment.
The plaintiff had apparently suffered a fractured ankle that was casted and treated by the defendant physicians. It was the plaintiff’s contention that: "[I]n April of 1964 the cast was removed while there was a nonunion of the fracture and that he was advised to put weight on his leg. That as a result of this advice and the removal of the cast, that he was caused to sustain an aggrevation [sic] or an exacerbation of the original injury, which resulted in the necessity of undergoing two operative procedures resulting in the fusion of his left ankle."53
The defendants asserted the affirmative defense of contributory negligence. They claimed that "if any subsequent [poor] result occurred, it was [because of] the failure of the plaintiff to come back or there was a broken appointment in June of that year."54
In the instructions to the jury, the judge told them that, if they concluded that the physicians had been negligent in failing to keep the leg immobilized and instructing the patient to put weight on it, they could consider the defendant’s contributory negligence defense. If the jury did not find the physicians negligent, there would be no reason to consider the issue of contributory negligence, of course. The judge then instructed the jury on the strict application of the doctrine of contributory negligence. That is, even if the defendants were negligent, if the plaintiff was at all negligent, the verdict must be for the defendants: "[I]f you find that the plaintiff was negligent, then your verdict will be for the defendant even though you find the defendant was also negligent."55 Moreover, the judge instructed the jury that they were prohibited from weighing the degree of negligence, defendant vs. plaintiff. That is, even if the physicians were grossly negligent and the plaintiff’s negligence was slight, the verdict must be for the defense, because contributory negligence is a total defense.
On appeal, the Appellate Division reversed. Without explicitly invoking the avoidable consequences rule, the Appellate Division seemed to draw a distinction between contributory negligence and avoidable consequences. It held that: "A patient’s failure to follow instructions does not defeat an action for malpractice where the alleged improper professional treatment occurred prior to the patient’s own negligence. Under such circumstances, damages are reduced to the degree that the plaintiff’s negligence increased the extent of the injury."56
Commentary: The court was not clear in labeling its doctrine. It based its opinion on the fact that the patient’s alleged negligence occurred after the physician’s negligence. It might have been indicating its adoption of the avoidable consequences rule, which applies to negligence on the part of the plaintiff that occurs after the injury has occurred. As discussed above, setting the cutoff time between contributory negligence and avoidable consequences is not as easy in medical malpractice actions as it is, for example, in a motor vehicle accident. If the court considered the damage to be the subsequent complications suffered by the plaintiff, then both the defendant’s and plaintiff’s alleged negligence would have occurred prior to the damage. In that case, the court would have been announcing an exception to the harsh contributory negligence rule, a step toward adopting the comparative negligence rule. The label matters less than the fact that the court held that a patient’s failure to return as directed would not be a complete defense in a medical malpractice action.
Comparative Negligence
As discussed above, contributory negligence is an extremely harsh rule that provides that, if a plaintiff’s negligence contributed to his or her injury, no matter how slight the plaintiff’s negligence might have been, the plaintiff is barred from any recovery. This common law rule was softened over the years by various doctrines and has now been abrogated in a large majority of the states. The replacement for contributory negligence is the more logical comparative negligence rule. Under the comparative negligence rule, if the defendant was negligent, the jury will decide on a figure that represents the total damages suffered by the plaintiff. The jury will then consider the relative degree of fault of all parties involved in producing the injury and will prorate the damages among all those parties who were at fault. For example, if the total damages are $1 million and the jury decides that the physician was 60% responsible and the patient was 40% responsible, the physician will be assessed $600,000 in damages. Some states follow a "partial" comparative negligence rule wherein a plaintiff is barred from any recovery if the plaintiff’s responsibility exceeds a threshold level (e.g., 49%-50%). This is somewhat of a hybrid between contributory negligence and "pure" comparative negligence. In the latter, there is not a threshold that bars a plaintiff’s recovery.
Case No. 6: Marjorie Sue Hoff v. Hal and Charlie Peterson Foundation.57 Mrs. Hoff went to the emergency room at the Sid Peterson Hospital in Kerrville, TX, on April 21, 1985, with a complaint of chest pain. She was seen by the emergency department physician, Dr. Ted Samsel. He recorded his impression of her condition as "angina versus esophagitis" based upon negative results from her electrocardiogram, cardiac enzymes, chest X-ray, and diminishing symptoms. She was released with the recommendation that she see her family physician, Dr. Dan Bacon. Mrs. Hoff returned to the hospital a week later, April 28, with the same complaint. She was again seen by Dr. Samsel, who repeated many of the same tests that he had done the week before. Dr. Samsel again discharged Mrs. Hoff with a recommendation that she see Dr. Bacon.
Mrs. Hoff went to see Dr. Bacon after this second emergency room visit. He referred her to the Scott & White Clinic in central Texas for a complete examination. She was examined at the clinic by Dr. Hajra, a cardiologist. Dr. Hajra conducted a series of tests which included an electrocardiogram and, apparently, a stress test. It was Dr. Hajra’s impression that she was "undergoing ischemic changes in her cardiovascular system" and that she had suffered a "chest wall injury."58 She was discharged on May 2, 1985.
The night after her discharge from the clinic, she again began to experience chest pain. At approximately 8:50 a.m. the next morning, May 3, as the pain continued, Mr. Hoff took his wife to the home of her friend, Mrs. Doris Wood. Mr. Hoff then went to work. Later that morning, Mrs. Hoff was taken to the emergency department at the hospital by Mrs. Wood and another friend, Mrs. Bonnie Ball.
After arrival at the hospital, it was alleged that an altercation occurred between Mrs. Hoff and a member of the hospital’s staff. According to Mrs. Hoff, she was approached by a nurse who said: "Oh its you again. Well, there isn’t anything we can do except run the same tests that we have run on you before, and they are all negative, and until we find something, there’s nothing we can do for you."59 Mrs. Hoff and her friend, Mrs. Wood, identified Mary Jean Cory as the nurse who made that statement. Nurse Cory denied making the statement. Mrs. Hoff’s other friend Mrs. Ball also testified that there was an altercation, although she identified a second nurse, Nancy Keith, as the nurse who made the statement. Nurse Keith also denied making the statement.
Mrs. Hoff waited in the emergency room for approximately 18 minutes and then left the hospital before she was examined. Mrs. Hoff stated that she did not want to be left in the hospital to die and wanted Mrs. Wood to take her home. Mrs. Hoff went with Mrs. Wood to her home where her condition worsened throughout the day.
Dr. Boyce, Dr. Bacon’s partner, testified that he was called by Mr. Hoff at approximately 5 p.m. that evening, at which time Mr. Hoff explained that his wife was having chest pains and requested that Dr. Boyce examine her. Dr. Boyce replied that his office was closed and he suggested that Mr. Hoff take his wife to the emergency room at Sid Peterson Hospital. Mr. Hoff refused and explained his wife’s prior visit to the hospital that morning. Mr. Hoff also contacted the Scott & White Clinic, but apparently he could not arrange admittance there.
Mrs. Hoff continued to deteriorate and was eventually taken to Humana Hospital in San Antonio. She arrived at the Humana Hospital at approximately 7:30 p.m. where she was diagnosed as having a "massive heart attack."60 The Hoffs subsequently sued the Sid Peterson Hospital and Dr. Samsel for malpractice. At trial there was, of course, conflicting expert testimony as to whether Dr. Samsel’s treatment of Mrs. Hoff met the applicable standard of care.
The jury returned a verdict for the defense. It found no negligence on the part of the hospital or Dr. Samsel, and the jury found that it was actually the negligence of Mr. and Mrs. Hoff that proximately caused the injury to Mrs. Hoff. The jury attributed 65% of the cause to Mrs. Hoff and 35% to Mr. Hoff. The plaintiffs appealed that verdict. The Court of Appeals of Texas held that there was sufficient evidence for the jury to have concluded that the Hoffs’ negligence was the proximate cause of Mrs. Hoff’s injury because "Mrs. Hoff failed to exhaust available alternatives for medical care; that she voluntarily left the hospital before receiving treatment; that Mr. and Mrs. Hoff ignored the advice of Dr. Ted Boyce to return to the [Sid Peterson Hospital] emergency room; and that they failed to obtain medical care until approximately seven hours after leaving the emergency room."61
Commentary: At the time of the Hoff trial, Texas had by statute, TEX. CIV. PRAC. & REM. CODE ANN. § 33.001 et seq., adopted comparative negligence, having abrogating the strict doctrine of contributory negligence. Under comparative negligence, damages awarded to a plaintiff are prorated among all those who negligently caused the incident. In this case, because the jury determined that the Hoffs were entitled to no damages, it can be concluded that the jury had attributed 100% of the negligence to the Hoffs.
As was discussed earlier, the difference between contributory/comparative negligence and avoidable consequences is not always clear. Texas might not have recognized the rule of avoidable consequences at the time of that case. If it did, the court apparently ruled that the relevant time of injury was when Mrs. Hoff suffered her myocardial infarction not the time of her earlier allegedly negligent emergency department treatment. In any case, this was a comparative negligence case, not one of avoidable consequences.
This case provides plenty of material for discussion and lessons to be learned. As an initial matter, I could certainly imagine another jury returning a verdict for the plaintiffs, with at least a partial award of damages. The jury either did not find the testimony as to the nurse’s alleged comments to Mrs. Hoff at the time of her second emergency department visit credible or did not find that such comments were sufficient justification for her not to return when her symptoms persisted. All emergency departments must take whatever steps necessary to ensure that such statements are never made to, or overheard by, patients. We all know patients that seem to "abuse" the emergency department and seem to come in incessantly for the same complaint. It is all too easy to be lulled into complacency with those patients. The lesson is that each patient requires a thorough evaluation each and every time he or she comes to the emergency department. There is always a possibility that the patient may have developed "real" disease, after having "cried wolf" for years.
It is easy to get frustrated with unscheduled return visits. Return visits should, however, be seen as opportunities to correct past mistakes. Every patient deserves a "fresh look" each and every time he or she comes to the emergency department. It is a recipe for disaster to blindly rely on a previous evaluation, whether you or one of your colleagues saw the patient previously.
In this case, the emergency physician discharged the patient after obviously considering the possibility that the patient was suffering from angina — his discharge diagnosis was "angina versus esophagitis." There was, apparently, no history of previous angina so, if Mrs. Hoff had been suffering from angina at the time of the first visit, it would have been, by definition, unstable angina. As such, admission would certainly have been justified. At the present time, we have no way to reliably rule out myocardial infarction or unstable angina in the emergency department and, therefore, admission in such cases is generally advised.
If you work in a teaching hospital, you no doubt have been questioned by the on-call internal medicine resident as to why you think your chest pain patient needs to be admitted. ("Do you really think he’s got it?") That is, of course, not the relevant issue for an emergency physician. If you think the patient "might have it," in the case of unstable angina or acute myocardial infarction, the patient must be admitted. You do not need any more reason to admit. Rather, in order to not admit such a patient, you need a compelling reason to discharge the patient. Follow that rule, and you will be taking an important step to reduce your malpractice risk.
Endnotes
1. 95 Ind 376 (1884).
2. Id. at 380 (emphasis added).
3. Id. at 381 (emphasis added).
4. 297 Ill. App. 3d 266, 696 N.E.2d 717 (1998).
5. 696 N.E.2d at 720.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id. at 721.
15. Id.
16. Id.
17. Id.
18. Id. (emphasis added).
19. Id.
20. Id. at 722.
21. Id.
22.Id.
23. Id. at 728.
24. Id.
25. 666 F.Supp. 1511 (M.D. Ala. 1987).
26. Id. at 1512.
27. Id.
28. Id.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id. at 1513.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
39. Id. at 1516.
40. Id.
41. Id.
42. Id.
43. Id. at 1514.
44. 12 F.3d 692 (7th Cir. 1993).
45. Id. at 693.
46. Id.
47. Id.
48. Id. at 694.
49. Id.
50. Id. at 699.
51. Id.
52. 373 N.Y.S.2d 224 (1975).
53. Id. at 225.
54. Id.
55. Id.
56. Id. at 226 (emphasis added).
57. 811 S.W.2d 187 (Texas Court of Appeals 1991).
58. Id. at 190.
59. Id.
60. Id.
61. Id. at 191.
CME Questions
1. Affirmative defenses in a medical malpractice lawsuit might include:
a. contributory negligence
b. comparative negligence
c. avoidable consequences
d. all of the above
2. Which of the following are true in the case of comparative negligence:
a. the jury will prorate the damages among all who were at fault
b. comparative negligence totally bars a plaintiff’s recovery
c. some states will bar a plaintiff’s recovery if the plaintiff is more than 50% responsible for his or her injury
d. both a and c
3. Discharge instructions must be:
a. understandable
b. provided to patients
c. time-specific
d. all of the above
4. Which of the following is true:
a. contributory negligence comes into play after a plaintiff has sustained an injury
b. avoidable consequences comes into play before a plaintiff has sustained an injury
c. most states continue to follow the doctrine of contributory negligence
d. none of the above
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