Leach v. Fletcher Allen, No. S0125-02 CnC (Norton, J., Nov. 8, 2004)

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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No. S0125-02 CnC



LEACH

v.

FLETCHER ALLEN




                                  ENTRY

       Defendant Fletcher Allen seeks to amend its answer to include the
affirmative defense of comparative negligence against plaintiff’s claim of
medical malpractice. As a negligence action, Medical malpractice is
“accompanied by the usual rules . . . plaintiff must prove negligence,
causation, and damages . . . and the defendant may defend in a proper case
by asserting contributory fault . . .” 1 D. Dobbs, The Law of Torts § 242, at
631 (2001). Nothing in either the Vermont comparative negligence statute
or the medical malpractice statute alters this standing for the defendant to
plead comparative negligence. 12 V.S.A. §§ 1036, 1908–1909.

       In at least one situation, the Vermont Supreme Court has sanctioned
comparative negligence in medical malpractice cases. In Quirion v.
Forcier, the Court affirmed an instruction that allowed a jury to find a
decedent comparatively negligent for not telling the treating physician that
he was a chronic marijuana smoker. 161 Vt. 15, 24–25 (1993). In the
context of comparative negligence, the omission in Quirion was relevant
because the defense established at trial that it was a critical factor—both for
its medical effect and psychological effect on the decedent’s disposition—
and one that hampered the doctor’s ability to evaluate the decedent for heart
trouble. Id. Moreover, it was also a conscious habit that the decedent was
aware of and chose to conceal from the doctor, despite his concern over
chronic chest pains. It is more descriptive, then to characterize the
omission as a concealment because it was the affirmative act of
purposefully withholding that, in part, made the marijuana smoking
relevant. This would be in contrast to mere error—something the patient
forget to mention—or misunderstanding—not associating the symptom
with the condition.

       In other words, a patient has a duty to disclose his proper medical
history, but that does not remove the duty from the physician to engage the
patient and ask him questions. Nor does it require the patient to reveal
every incident, especially if there is no reason for the patient to associate
the incident with his condition. See generally Annot. Patient’s Failure to
Reveal Medical History to Physician as Contributory Negligence or
Assumption of Risk in Defense of Malpractice Action, 33 A.L.R.4th 790
(1984, Supp. 2004); see also Mackey v Greenview Hospital, Inc., 587
SW2d 249 (Ky. App. 1979) (patient not under a duty to reveal medical
history without being asked was under a duty to do so where patient was
aware that the treating physician had failed to ascertain some aspect of her
medical history that she knew involved a risk of harm to herself). This is
consistent with Quirion, which again must be viewed in the context of its
facts and evidentiary foundation.

        This court views comparative negligence in a medical malpractice
case along a continuum. On one end there are easy cases such as an
affirmative action by the patient which disrupts treatment or misleads the
physician. See, e.g., Skar v Lincoln, 599 F.2d 253 (8th Cir. 1979) (patient
who refused to give accurate information to questions from physicians was
liable for harm that resulted from misinformation). On the other, there are
hard cases where the omissions do not amount to conscious concealment.
Lambert v Shearer, 616 N.E.2d 965, 976–77 (Ohio Ct. App. 1992) (patient
not under a duty to reveal everything potentially relevant to physician). In
such hard cases, the application of comparative negligence depends on the
relevance of the omitted facts, whether the omission amounts to a
concealment, and the physician’s continuing duty. As Lambert makes
clear, the last factor should not be confused, and comparative negligence
must be a proximate cause to merit a jury instruction. Id.

       Fletcher Allen’s basis for a comparative negligence defense arises
out of omitted facts about decedent’s condition that he may have told to his
wife but not his physician. Fletcher Allen frames this as a failure to
provide a complete and accurate medical history. For the liberal purposes
of V.R.C.P. 15(a), Fletcher Allen may amend its complaint to include the
defense. Bevins v. King, 143 Vt. 252, 254 (1983). By granting this
amendment, however, there is no guarantee of a jury charge on the claim.
Defense will have to present evidence that establishes the elements of
comparative negligence and demonstrate that any omission by decedent
rose to the level of an affirmative act or was of such a serious nature that its
omission was negligent. Mere evidence of omission will not, as a matter of
law, raise the issue of comparative negligence and will not interrupt the
physician’s primary duty of care.

       Based on the foregoing, defendant’s motion to amend is granted.

       Dated at Burlington, Vermont________________, 2004.




                                           ________________________
                                           Judge
