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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
the foreseeability of consequences, and considering whether a defendant should be held legally responsible for such consequences. Skinner v Square D Co, 445 Mich 153, 163-164; 516 NW2d 475 (1994). Deciding proximate cause is a policy determination of the courts:
"Proximate cause"-in itself an unfortunate term-is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would "set society on edge and fill the courts with endless litigation. As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy. [Prosser & Keeton, Torts (5th ed), § 41, p 264.]
To be allocated as "fault" for the purposes of comparative negligence under MCL 600.6304, a plaintiff's negligence must be a proximate cause of the plaintiff's damages. The majority does not offer any analysis regarding why it is appropriate to consider plaintiff's pretreatment negligence as a proximate cause of her death, but simply states that it may be considered.
I note that all the other state courts that have considered the question whether a patient's own pretreatment negligence could be considered a proximate cause of the patient's damages for purposes of comparative negligence have ultimately decided that it should not.
Owens v Stokoe, 115 Ill 2d 177, 183; 503 NE2d 251 (1987) (dental patient's failure to obtain second option, prior poor oral hygiene, and alleged refusal to permit X-ray to be taken of his teeth were insufficient to raise issue of contributory negligence because parasthesia was proximately caused by damage to the left interior alveolar nerve during surgery and conduct of patient did not prevent surgeon from properly performing surgery); Eiss v Lillis, 233 Va 545, 553-554; 357 SE2d 539 (1987) (the plaintiff's negligently taking aspirin along with heart medicine before the physician's alleged negligence was not a proximate cause of the plaintiff's death); Jensen v Archbishop Bergan Mercy Hosp, 236 Neb 1, 15-16; 459 NW2d 178 (1990) (although the plaintiff's failure to lose weight may have been causally related to his injury, his conduct regarding his weight problem merely furnished an occasion or condition for the medical care that was the basis of the medical malpractice action, and it was improper to instruct the jury to consider whether the plaintiff had been contributorily negligent); Harding v Deiss, 300 Mont 312, 318; 3 P3d 1286 (2000) (the plaintiff's negligence in riding a horse when she had asthma and was allergic to horses could not be compared to physician's failure to immediately intubate her upon her arrival at the hospital); DeMoss v Hamilton, 644 NW2d 302, 307 (Iowa, 2002) (the plaintiff's failure to stop smoking, have regular follow-up examinations, lose weight, and begin an exercise program after a heart attack provided the occasion for medical treatment, but was irrelevant to the question of defendant's medical negligence). See also Harvey v Mid-Coast Hosp, 36 F Supp 2d 32, 37-38 (D Me, 1999), Spence v Aspen Skiing Co, 820 F Supp 542, 544 (D Colo, 1993), Van Vacter v Hierholzer, 865 SW2d 355, 359 (Mo App, 1993), and Nelson v McCreary, 694 A2d 897 (DC App, 1997).
In holding t
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