§47.3 Allocation of Fault to Medical Negligence Plaintiff for Pre-Injury Conduct

The Case: Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121 (Tenn. 2004).

The Basic Facts: Plaintiff, conservator for her brother, brought a medical malpractice claim against Defendants hospital, nurse, and therapist after her brother suffered severe brain damage after undergoing a CT scan. Plaintiff's brother initially presented to the hospital after being involved in a single car accident. The brother's estimated B.A.C. at the time of the accident was .20.

The Bottom Line:

• "The first issue we must address in this appeal is the propriety of the trial court's ruling that Vanderbilt was 100% at fault and therefore responsible for the full amount of the damages found by the jury. The plaintiff argues that the jury should not have been charged on the issue of comparative fault." 134 S.W.3d at 127.
• "Significantly, no other jurisdiction appears to utilize this indivisible/separate injury approach in determining whether principles of comparative fault or contributory negligence apply to medical malpractice actions. To the contrary, most jurisdictions have held that a patient's negligence that provides only the occasion for medical treatment may not be compared to that of a negligent physician. See, e.g., Harvey v. Mid-Coast Hosp., 36 F. Supp. 2d 32 (D. Me. 1999) (holding that patient's intentional or negligent ingestion of a drug may not be compared with the defendant physician's subsequent, negligent treatment); Shinholster v. Annapolis Hosp., 660 N.W.2d 361 (Mich. Ct. App. 2003) (holding that patient's failure to regularly take her blood pressure medication in the year before her death could not be compared with the defendant physician's negligent treatment and diagnosis of her condition); Harding v. Deiss, 3 P.3d 1286 (Mont. 2000) (holding that patient's negligence in riding a horse when she had asthma and was allergic to horses could not be compared to the defendant physician's failure to immediately intubate her upon her arrival at the hospital); Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178 (Neb. 1990) (holding that patient's failure to lose weight could not be compared with defendant physician's negligence); Eiss v. Lillis, 357 S.E.2d 539 (Va. 1987) (holding that patient's negligent ingestion of aspirin and heart medication could not be compared with the defendant physician's negligence). Several of these jurisdictions have concluded that a patient's negligence in causing a motor vehicle accident may not be compared with the defendant physician's subsequent, negligent treatment of the injuries that the patient sustained in the accident.See, e.g., Martin v. Reed, 409 S.E.2d 874 (Ga. Ct. App. 1991); Fritts v. McKinne, 934 P.2d 371 (Okla. Ct. App. 1996);Sendejar v. Alice Physicians & Surgeons Hosp. Inc., 555 S.W.2d 879 (Tex. Civ. App. 1977); Rowe v. Sisters of the Pallottine Missionary Soc'y, 560 S.E.2d 491 (W. Va. 2001). These jurisdictions conclude that a health care provider may not reduce or avoid liability for negligent treatment by asserting that the patient's injuries were originally caused by the patient's own negligence. The [RESTATEMENT OF TORTS] reiterates this view. According to the [Restatement], 'in a case involving negligent rendition of a service, including medical services, a factfinder does not consider any plaintiff's conduct that created the condition the service was employed to remedy.' [Restatement (Third) of Torts: Apportionment of Liability § 7 cmt. m (2000)]. The reporter's note to this comment explains that it would be unfair to allow a defendant doctor to complain about the patient's negligence because this negligence caused the very condition the doctor undertook to treat. [Restatement (Third) of Torts: Apportionment of Liability § 7 reporter's note to cmt. m (2000)]." Id. at 128-29.
• "A majority of jurisdictions have allowed a patient's fault to be considered in medical malpractice cases only under very limited circumstances. See Fritts, 934 P.2d at 374. For example, some jurisdictions have allowed juries to apportion fault to a patient who delays in seeking or returning for medical treatment, see LeBlanc v. N. Colfax County Hosp., 672 P.2d 667, 669-70 (N.M. Ct. App. 1983), who fails to follow a physician's advice or instructions, see Musachia v. Rosman, 190 So. 2d 47, 50 (Fla. Dist. Ct. App. 1966), who furnishes false, incomplete, or misleading information to his or her physician, see Rochester v. Katalan, 320 A.2d 704, 708 (Del. 1974), or who attempts to treat his or her own injury before seeking medical attention, see Sales v. Bacigalupi, 117 P.2d 399, 402 (Cal. Dist. Ct. App. 1941). In Volz v. Ledes, this Court upheld the jury's allocation of fault to the patient who delayed in returning for a follow-up examination with his physician. 895 S.W.2d 677, 678, 680 (Tenn. 1995). As such, Volz falls into the category of cases in which a patient delays seeking or returning for medical treatment. Consequently, our decision in Volz did not dictate the result in Gray, and Volz does not control the present case." Id. at 129.
• "Although we recognize that Gray [v. Ford Motor Co., 914 S.W.2d 464 (Tenn. 1996)] is supported by the principle of stare decisis, we conclude that the majority of jurisdictions have adopted the better-reasoned view. As one court has aptly stated,

  It would be anomalous to posit, on the one hand, that a health care provider is required to meet a uniform standard of care in its delivery of medical services to all patients, but permit, on the other hand, the conclusion that, where a breach of that duty is established, no liability may exist if the patient's own preinjury conduct caused the illness or injury which necessitated the medical care.

  Harvey , 36 F. Supp. 2d at 38." Id. at 129-30
• "We also agree that ''patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.'' Fritts, 934 P.2d at 374 (quoting Martin, 409 S.E.2d at 877). We therefore hold that a patient's negligent conduct that occurs prior to a health care provider's negligent treatment and provides only the occasion for the health care provider's subsequent negligence may not be compared to the negligence of the health care provider. To the extent that Gray holds otherwise, it is hereby overruled." Id. at 130.
• "In the present case, Qualls's negligence merely provided the occasion for the medical care, attention, and treatment that gave rise to this medical malpractice action. We therefore hold that the principles of comparative fault do not apply so as to allow fault to be assessed to Qualls. We recognize that Qualls's medical treatment was complicated by his alcohol withdrawal and that evidence concerning his alcohol consumption was clearly relevant to his treatment and to Vanderbilt's theory of causation. We hold, however, that Qualls's antecedent negligence should not have been considered by the jury in assessing fault." Id.

Other Sources of Note: White v. Lawrence , 975 S.W.2d 525, 531 (Tenn. 1998) (holding that a defendant physician's liability may not be reduced by comparing his negligent conduct of prescribing medication "with the decedent's intentional act of committing suicide since the intentional act was a foreseeable risk created by the defendant's negligence.").