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Cutler v. Jim Gilman Excavating11/18/2003
Candice was negligent should not have been submitted to the jury, as Candice's conduct before she was rendered unconscious was irrelevant to whether the Doctors were later negligent in her medical care. Harding, 7.
The District Court in Harding gave two jury instructions (numbered 11 and 12) that related to comparative negligence. Harding, 7. Instructions 11 and 12 were identical in substance to Instructions 17 and 39 in the instant case. We considered Instructions 11 and 12 and concluded that:
omparative negligence as a defense does not apply where a patient's pre-treatment behavior merely furnishes the need for care or treatment which later becomes the subject of a malpractice claim. . . . Acceptance of [the Doctors'] argument (that Candice's act of riding a horse while having asthma is a negligent act which should be offset against any negligent act by [the Doctors] in her treatment) would lead to an absurd result. Under such a theory, in any case where the patient was responsible for events that led to her hospitalization, the treating physician would not be liable for negligent treatment. We hold that in medical malpractice actions, jury instructions on a patient's comparative negligence are appropriate only where the patient's negligent conduct occurs contemporaneous with or subsequent to treatment. We conclude that because Candice's allegedly negligent acts were pre-treatment conduct, the District Court's issuance of jury instructions on comparative negligence was an abuse of discretion.
[Emphasis added.]
Harding, 16.
In this case, Cutler's allegedly negligent conduct (of driving while under the influence of alcohol) clearly occurred prior to the Respondents' treatment of him at the accident scene. Although this is not, strictly speaking, a medical malpractice case (Cutler alleges the Officers assaulted him in their attempts to test him for intoxication, and that the ambulance personnel failed to render careful treatment of him given his injuries), it is nonetheless analogous to Harding. Here, the pre-treatment accident simply furnished the need for the subsequent attention of the police and ambulance personnel. Therefore, pursuant to Harding, jury instructions on comparative negligence were inappropriate in the instant situation. Accordingly, we hold the District Court abused its discretion when it issued Jury Instructions 17 and 39 at Cutler's trial.
Aggravating matters, the District Court also gave the following two jury instructions pertaining to Cutler's conduct prior to the accident:
No. 18: Montana law provides that it is a criminal act for a person who is under the influence of alcohol to drive a vehicle on the highways of this state. Plaintiff Cutler was intoxicated at the time of the accident, and his blood alcohol level an hour after the accident was .202. You are instructed that such conduct by Plaintiff Cutler was negligent as a matter of law. Plaintiff's negligence does not affect his ability to recover unless it caused, or was a substantial factor in causing, his injury.
No. 19: Every person operating or driving a vehicle of any character on a public highway of this state shall drive it in a careful and prudent manner, and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of traffic, condition of brakes, weight of vehicle, grade and width of highway, condition of surface, and freedom of obstruction to view ahead, and he shall drive it so as not to unduly or unreasonably endanger the life, limb, property, or rights of a person entitled to the use of the street or highwa
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