When Does a Patient’s Responsibility Rise to Contributory Negligence?

A patient is misdiagnosed twice and doesn't get a doctor recommended blood test, the patient subsequently died. Was there contributory negligence on behalf of the patient?

In this month’s case we look at the issue of contributory negligence – or whether patients can contribute to their own poor outcome. Contributory negligence is used as a defense in cases where, for example, a patient checked himself out of the hospital against doctor’s orders, or did something else against the advice of the physician.

Dr. W, 54, was a family practitioner who shared office space with several other clinicians. She had been practicing in the same town for the last twenty years, and had now begun to see several generations of patients. One example was Mr. K, 23. Mr. K’s parents and maternal grandmother were some of the physician’s earliest patients when she opened her practice. Dr. W still saw Mr. K’s parents, and had treated Mr. K’s grandmother until her death at age 72 from a lifelong struggle with diabetes.

One afternoon Mr. K came to see Dr. W for treatment of symptoms he had been experiencing. The physician greeted him, noting that he looked thinner than she remembered, but she hadn’t seen him in over a year. 

“I haven’t felt well for several days,” said the young man, after they exchanged pleasantries. “I’ve been throwing up and I’m light-headed and can’t concentrate at work. It has really been a problem. This is a new job and I don’t want to take too much time off, but I just haven’t been well enough to work.”

The patient went on to describe his other complaints, which included dry mouth and blurred vision. Dr. W performed an exam, and noted that the young man had lost 22 pounds since his last office visit, and now weighed 144 pounds at 6’1”.

Dr. W diagnosed Mr. K as having influenza and told him to go home and rest for a few days. “I’d also like you to have a fasting blood test within the next month,” she told him, “so call the office when you’re ready to go to the lab and we’ll fax over the script.” The patient nodded and left the office.

Three weeks later, Dr. W saw the patient again. He had not yet gone for his fasting blood test. Instead, he returned to the physician’s office with continued complaints of nausea and vomiting. Again, the physician examined him. She noted that he had no fever, but that his heart rate was somewhat elevated. Dr. W diagnosed the patient with gastroenteritis and advised him to rest and drink fluids and contact her if he didn’t begin to feel better in a few days.

The physician did not hear from the patient again. He went straight home from her office to his house, where he died the next day of diabetic ketoacidosis from Type 1 diabetes. 

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