 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
ubsequent damages were the "natural and probable consequence" of his own conduct, will § 6304 require that the trier of fact determine whether such conduct "contributed" to the plaintiff's injury and subsequent damages, thereby offsetting to some degree the defendant's exclusive liability.
Further, section 6304 does not require a trier of fact to consider when the fault occurred, but merely whether the fault was "a proximate cause of damage sustained by a party." That is, contrary to the beliefs of the trial court, Court of Appeals, and plaintiff, § 6304 does not apparently distinguish between a plaintiff's "pre-treatment" and "post-treatment" negligence by providing that only the latter may be considered in apportioning fault and determining damages. Rather, § 6304 specifically requires that a trier of fact be permitted to consider the negligence of "each plaintiff," be it pre-treatment or post-treatment negligence, if such negligence was "a proximate cause" of the plaintiff's injury and subsequent damages.
Concern has been expressed at argument that, if a plaintiff's pre-treatment conduct may be considered under § 6304, this will enable a negligent doctor to avoid, at least in part, liability for his malpractice. For example, assume that a plaintiff, whose doctor has negligently failed to diagnosis her impending heart attack, files a medical malpractice action against the doctor on the basis of such negligence. At trial, the defendant attempts to offset a portion of his fault by introducing evidence that the plaintiff herself was a proximate cause of her heart attack because she had eaten a bag of potato chips daily for the past twenty years. In my judgment, the plaintiff's injuries and subsequent damages in such a circumstance would be far "too insignificantly related to" and "too remotely affected" by such conduct, and thus wholly inadequate to establish "a proximate cause" relationship between the plaintiff's conduct and her injury and damages. See Davis v Thornton, 384 Mich 138, 145; 180 NW2d 11 (1970). It is simply not a foreseeable, natural, or probable consequence that such conduct will result in a heart attack. The instant case is clearly distinguishable because plaintiff here failed to regularly take medication that was prescribed by her doctor in order precisely to prevent the specific fatal injury that she suffered. That is, there is a far closer and more direct connection between plaintiff's negligent conduct and her injury, and thus I believe that such conduct may reasonably be considered by a trier of fact as "a proximate cause" of her injury and subsequent damages.
In summary, in a medical malpractice action in determining whether the plaintiff's own negligence has been "a proximate cause" of her injury and damages, I believe that the trial court must ensure that the defendant has sustained its burden of proof in presenting relevant evidence, that such evidence is sustained by either scientific or other reliable and verifiable findings, and that such evidence demonstrates that the plaintiff's specific injury and damages were a genuinely foreseeable, natural, and probable consequence of her negligence. In cases such as this, in which a plaintiff's allegedly negligent conduct relates to a specific diagnosed condition, combined with a failure to comply with a doctor's prescribed regimen for that specific condition, I agree with the majority that a question of fact for the jury regarding whether plaintiff's own conduct constitutes a sufficiently "proximate cause" of her own injury has been presented. Because in most instances I do not believe that such matters bear a "proximate cause" relationship to injuries and damages suffered by a medical malpractice plaintiff, I do not
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Michigan DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|