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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
ake no mistake, allowing a jury to consider a plaintiff's pretreatment negligence in a medical malpractice action is a sweeping new decision, with no basis in this Court's prior rulings.
It is an axiom of tort law that the defendant takes the plaintiff as he finds her. Wilkinson v Lee, 463 Mich 388, 396; 617 NW2d 305 (2000). Potentially eviscerating a defendant's liability or reducing a plaintiff's damages on the basis of a condition that a plaintiff brings to the table ignores this foundational principle of tort law. It also opens the door to scrutiny of a medical malpractice plaintiff's pretreatment health habits and lifestyle in nearly every medical malpractice action. " hatever the wisdom or folly of our lifestyles, society, through its laws, has not yet imposed a normative life-style on its members." Ostrowski v. Azzara, 111 NJ 429, 444; 545 A2d 148 (1988). Today's majority imposes a judicially created normative lifestyle on the citizens of this state.
The majority also subverts the text of MCL 600.6304 when it holds that § 6304 requires the trier of fact to determine the comparative negligence of all who are a proximate cause of the plaintiff's injury. The statute actually states: "'fault' includes an act . . . that is a proximate cause of damage sustained by a party." MCL 600.6304(8) (emphasis added). While the majority focuses on plaintiff's injury, its attention would be more properly focused on the plaintiff's damage.
The plaintiff's damage in a medical malpractice action is determined by the difference between the decedent's hypothetical life without the negligence of the doctor and the actual result. In this case, the damage plaintiff claims is the difference between the life of a woman who suffered a mini-stroke that was properly treated and a dead woman. The majority potentially eliminates all doctors' liability for all negligent behavior by mischaracterizing the damage. It is absurd to assert that plaintiff's pretreatment behavior can be considered the proximate cause of the damage inflicted by the doctor's malpractice.
"As a general rule, negligence by a patient that occurred before the malpractice and provided the occasion for the treatment that is the subject of the malpractice claim cannot give rise to a defense of comparative negligence." Moore & Gaier, A Plaintiff's Culpable Conduct, NY Law J 3 (Mar 3, 1998). Comment m to Restatement Torts, 3d, Apportionment of Liability, § 7, provides that the jury in a medical malpractice action cannot consider the plaintiff's conduct that created the condition that the doctor was employed to remedy. So, in this case, the trial court was correct to prevent the jury from considering plaintiff's failure to regularly take her medication.
In addition to the Restatement, I am persuaded by the wealth of authority from other jurisdictions that have refused to allow juries to consider a plaintiff's pretreatment negligence in medical malpractice actions. For example, the Florida Court of Appeals, in Matthews v Williford, 318 So 2d 480, 483 (1975), persuasively held that "conduct of a patient which may have contributed to his illness or medical condition . . . simply is not available as a defense to malpractice which causes a distinct subsequent injury . . . ." See, also, Mercer v Vanderbilt Univ, Inc, 134 SW3d 121, 129-130 (Tenn, 2004); DeMoss v Hamilton, 644 NW2d 302, 306-307 (Iowa, 2002); Harding v Deiss, 300 Mont 312, 318; 3 P3d 1286 (2000); Smith v Kennedy, 2000 US Dist LEXIS 9897, 11-12 (D Kan, 2000); Harvey v Mid-Coast Hosp, 36 F Supp 2d 32, 37-38 (D Me, 1999); Durphy v Kaiser Foundation Health Plan of Mid-Atlantic States, Inc, 698 A2d 459, 465-467 (DC App, 1997); Fritts v McKinne, 934 P2d 371, 374 (
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