Dr. W was devastated to hear of her patient’s death, and felt guilty, in hindsight, for not considering diabetes since she was aware that the young man had a family history of the disease. She was too distraught to see patients and asked a colleague to cover for her while she took a little time off.

Shortly after returning to practice, she was notified that she was being sued by Mr. K’s family. The physician met with the defense attorney provided by her insurance company. She explained what had happened, ending with “I don’t know what to say…I made a mistake. I should have considered diabetes, and I should have done a blood test.”

The attorney considered what she had said, but advised her not to lose heart regarding the case. “You told the patient to get a blood test and he didn’t,” said the attorney. “In effect, he contributed to his own poor outcome. We will ask the judge to give the jury an instruction about contributory negligence and that may avoid or reduce liability.”


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The case reached trial, and as expected the attorney asked that the jury be instructed that they should consider the young man’s contributory negligence because he had not followed up on the physician’s suggestion that he have blood work done. The judge so instructed the jurors, much to the defense attorney’s satisfaction. The jury ultimately ruled against the physician, but also found that the patient was contributorily negligent, and reduced the monetary award to a pittance based on the percentage of his supposed negligence. 

The plaintiffs appealed, asking the higher court to overturn the lower court judge’s jury instructions on contributory negligence.

Legal Background

The Superior Court agreed with the plaintiffs, and found that there was no basis for the jury to consider contributory negligence at all. The court noted that patients can be contributorily negligent if they do not report their symptoms accurately or completely, but that if a patient seeking a diagnosis accurately reports symptoms, asks necessary questions, and listens to the physician’s answers, the duty of the patient is satisfied. Patients are entitled to rely on their healthcare providers’ diagnoses and directions.

The Court found that the patient had not been negligent in failing to have fasting blood work done prior to his death because: 1) the physician did not order the testing or communicate urgency, and instead suggested he get it within a month, and 2) less than a month had elapsed when the patient died.