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Medical Malpractice and Contributory Negligence

Just as in other negligence-based torts, a patient’s contributory negligence can bar him from recovering damages in a medical malpractice claim in North Carolina. When North Carolina courts have examined the issue of contributory negligence in a medical malpractice claim, they have held that the patient’s negligence must join with the negligence of the health care provider and occur simultaneously or successively to constitute contributory negligence. If a patient’s negligence occurs subsequent to the negligence of the health care provider, it goes to the issue of mitigation of damages rather than contributory negligence.

The North Carolina Supreme Court addressed the issue of contributory negligence in a medical malpractice claim in 1993 in McGill v. French. In that case, the patient saw a urologist for a possible prostatic enlargement detected by his internist. The urologist performed a test which showed a mild prostatic enlargement. The urologist tried to contact the patient with these results but was unable to reach him for several weeks to a month. The next time the urologist saw the patient was in the ER. A pathology report during this visit showed that the patient had prostate cancer. The urologist did not inform the patient of this diagnosis during this hospital visit because it was not included in the patient’s chart at the time of his discharge. The patient was not informed of his diagnosis until two weeks later in the urologist’s office. The patient then had a follow-up appointment with the urologist, but he returned a week earlier than scheduled. At that time, the patient did not complain of any symptoms related to his prostate cancer. The urologist explained to the patient that the course of treatment would not alter his life expectancy or his quality of life because the cancer was advanced and the patient was asymptomatic. The patient missed his next appointment, scheduled for several months later.

Almost a year after the initial diagnosis, the patient experienced stomach pain and returned to the hospital. The patient claimed that he was not made aware of his prostate cancer diagnosis until this hospital visit. The urologist was called in as a consulting physician during this visit and started the patient on estrogen therapy. A follow-up appointment was made with the urologist, which the patient did not keep. The patient sought treatment at another hospital, but the cancer had spread to his bones. He was in poor condition at the time of trial and died before the appeal.

The defendant argued that the patient’s own negligence was a proximate cause of his injury. The Court defined the patient’s injury as the spread of his cancer, rather than the contraction of it. The plaintiff argued that the defendant was required to provide expert testimony regarding the patient’s contributory negligence, just as a plaintiff is required to do regarding a defendant’s negligence in a medical malpractice claim. The Court disagreed, reasoning that

Since the standard of care by which the usual plaintiff is to be judged in medical malpractice cases is simply that of a person of ordinary prudence acting under the same or similar circumstances, in the case sub judice we are even more convinced that the jury, based on its own knowledge and experience, i.e., common sense, could understand and determine that had plaintiff followed the advice of defendant and either returned for follow-up care or called, his treatment could have begun earlier and thus the rate of spread of his disease might have lessened. Therefore, we conclude that medical expert testimony, although useful, is not required to show the causal connection between plaintiff's alleged contributory negligence and his injuries.

The plaintiff next argued that a previous court of appeals case, Powell v. Shull (1982), addressed the same issue of contributory negligence in the plaintiff’s favor. In Powell, the doctor negligently treated the plaintiff’s fractured arm. Following the doctor’s negligent treatment, the plaintiff failed to keep her follow-up appointment. The court of appeals held that the plaintiff’s negligence in keeping her follow-up appointments did not proximately cause her injuries and therefore was not contributory negligence. The Court in McGill distinguished Powell mainly based on the “[o]ne critical difference … that unlike the plaintiff in Powell, Mr. McGill failed to keep his appointments during a crucial time of his illness.” The Court emphasized that “the patient has an active responsibility for his own well-being.” Therefore, the issue of the patient’s contributory negligence should have been submitted to the jury.

In 1999, the North Carolina Court of Appeals distinguished the issue of a patient’s contributory negligence from the issue of mitigation of damages in Andrews v. Carr. In that case, the jury found that the defendants were negligent during a hernia surgery because “a dissection occurred outside of the operative field and into Plaintiff's penis.” On the appeal, the defendants did not contest their negligence but argued that the plaintiff was contributorily negligent after the surgery in failing to follow the defendants’ advice of refraining from exercise and sexual activity. The court held that the plaintiff’s actions did not constitute contributory negligence because they occurred subsequent to the defendants’ negligence. Instead, “[a]ny injuries Plaintiff caused to himself as a result of his failure to follow [the defendants’] post-negligence treatment advice are properly considered in mitigation of his damages and cannot constitute a bar to the claim.”

More recently, the court of appeals looked at another medical malpractice case involving a patient’s contributory negligence. In Katy v. Capriola (2013), the patient had an X-ray ordered two days after delivering twins. The X-ray showed that the patient could be suffering from pneumonia. The patient was given antibiotics and discharged from the hospital two days after the X-ray. Two days later, the patient went to the ER because she was experiencing shortness of breath. The doctors there reviewed her X-rays, diagnosed her with pneumonia and discharged her the same day. The patient returned to the ER a week later, still complaining of shortness of breath. The examining physicians both believed the patient was suffering from pneumonia, but there was no radiologist available over the weekend, so the X-ray was not reviewed by a radiologist until three days later. When the radiologist reviewed the X-ray, he believed that the patient was suffering from worsening congestive heart failure and advised that the patient see her primary care physician “ASAP.” The patient could not schedule an appointment with a cardiologist for three weeks, so the nurse suggested that the patient return to the ER. She did not do so immediately, instead waiting until the next day before returning to the hospital. At this point she received treatment, but suffered a stroke and died several days later from complications of the stroke.

The plaintiff argued that her failure to follow the nurse’s advice fell under the previous court of appeals case Andrews. The court disagreed, reasoning that the patient’s treatment was ongoing because when she was discharged from the hospital, she was “instructed to contact her doctor or return to the ER if she did not feel better or developed new symptoms. These instructions demonstrate that, unlike the plaintiff in Andrews, [the patient]'s treatment for her condition was not completed and that she potentially required further treatment if her condition either did not improve or worsened.” The court cited McGill and held that the patient’s failure “to take an active responsibility for her own care and well-being during a crucial time of her illness” was sufficient evidence to submit the issue of contributory negligence to the jury.

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