When implementing a treatment plan for a patient, physicians often rely in part on a patient’s rendition of their medical history.  If a patient provides incomplete or inaccurate information to their physician, this may have an impact on a physician’s treatment decisions.  In addition, physicians often rely upon patients to abide by follow up care instructions.  If a bad outcome ensues, there is an issue of whether the patient should be held accountable for their injuries based upon their failure to provide their physician with accurate information or their failure to follow their physician’s treatment plan.  Although physicians may want to blame the patient for their unfortunate outcome when faced with a medical malpractice lawsuit, this can be difficult to do in a court of law.    

    In the case of In Gravitt v. Ward, the Supreme Court of Virginia recently considered whether a patient could be held contributorily negligent regarding her physician’s alleged failure to diagnose breast cancer.  Ms. Gravitt presented for treatment at the Fuller-Roberts Clinic on July 26, 1993 with complaints of a bruise and a sunken-in spot on her left breast.  Her recent mammogram showed no abnormalities.  Dr. Ward examined Ms. Gravitt at the clinic and found a little glandular area adjacent to her nipple.  Dr. Ward did not find any redness or gross tenderness on exam.  Dr. Ward concluded that the area in question was not cancerous. 

                On October 18, 1993, Ms. Gravitt contacted the clinic for an appointment stating she had found a lump in her left breast in early October.  Ms. Gavitt claimed that when she was examined by Dr. Ward in October, she told him that she had a lump.  In response, she claims Dr. Ward told her it was merely a cyst .  Dr. Ward on the other hand described Ms. Gavitt’s chief complaint as premenstrual tenderness of the left breast. Dr. Gavitt concluded that the tenderness that Ms. Gravitt was experiencing resulted from fibrocystic changes associated with her menstrual cycle.

                On May 11, 1994, Ms. Gavitt made an appointment for a physical exam and a mammogram.  At that time, she was experiencing pain in her arm.  A biopsy performed on May 18, 1994 revealed that Ms. Gravitt had breast cancer and that the cancer had spread to her lymph nodes and throughout her body. 

                Ms. Gavitt brought a medical malpractice lawsuit against Dr. Ward claiming he failed to diagnose her breast cancer in a timely manner.  At trial, Ms. Gavitt presented an expert who testified that Dr. Ward deviated from the standard of care by failing to order a mammogram in both July and October of 1993.  Dr. Ward presented another expert who testified that Dr. Ward’s treatment decision was within the standard of care.  Dr. Ward also submitted a jury instruction which stated that it was his burden to prove that Ms. Gravitt was contributorily negligent on October 18, 1993 by failing to tell him about the lump in her breast and that this negligence was a proximate cause of her injuries. 

                The jury returned a verdict in favor of Dr. Ward.  Ms. Gravitt appealed on the grounds that the trial court made an error by instructing the jury about contributory negligence.  Ms. Gravitt argued that the jury instruction should not have been given because the testimony at trial did not support Dr. Ward’s claim for contributory negligence. 

                The Supreme Court  of Virginia reviewed the evidence at trial and concluded that although there was evidence that Ms. Gravitt advised Dr. Ward about the lump, there was no evidence that directly refuted this fact.  The Court concluded that there was no more than a scintilla of evidence that Ms. Gravitt failed to inform Dr. Ward about the lump. The Court reversed the judgment in favor of the defendants and remanded the case for a new trial.  When the case is re-tried, the jury will address the sole issue of whether Dr. Ward’s failure to order a mammogram was a deviation from the standard of care. 

                The Wisconsin Court of Appeals considered whether a patient could be held contributorily negligent for failing to obtain the information necessary for her to give her informed consent to having a bilateral mastectomy.  In Brown v. Dibbell, the patient presented with tenderness in her breast.  Although no precise area of abnormality could be detected, her primary care physician recommended a bilateral mastectomy based upon the fact that the patient, who had breast implants, had a twin sister died of breast cancer.  The patient met with a reconstructive surgeon regarding the proposed mastectomy.  During this meeting, the surgeon never discussed other possible treatment options. 

                Following the surgery, the patient experienced decreased sensation and scarring.  The patient filed an informed consent malpractice suit claiming that the surgeon failed to provide adequate information about other treatment options and information about scarring.  The surgeon claimed that the patient was partially responsible for any claimed lack of consent based upon her failure to make inquiry.  Although the trial court found the patient fifty percent negligent, the Appeals Court ruled that in Wisconsin a patient has no affirmative duty to investigate or seek information from a physician.  As a result, the Court overturned the jury’s verdict.          

                In defending medical malpractice cases, there can be obstacles which prevent a physician from blaming patient for their alleged injuries.  Defense attorneys often find it difficult to place blame upon a seriously injured patient in front of a jury.  Rather than relying solely on the patient to take charge of their own health, a physician should have mechanisms in place to open the channels of communication with their patients.  They should implement a system to determine if follow up care plans were ever initiated.  It is also important for a physician to fully document all steps taken to open the lines of communications with their patients. When implementing such a system, a physician should anticipate that their patients will be non-complaint and will fail to fully communicate.     

                When a physician encounters a non-compliant patient who refuses recommended treatment, a physician should try to maintain an ongoing conversation with the patient concerning what the treatment entails, why the treatment is being recommended, the risks and benefits of the treatment, the risks of foregoing treatment, and the possible alternatives.  All aspects of such a conversation should be fully documented.  In order to determine what type of efforts are reasonable when confronted with a non-complaint patient, a physician needs to consider the importance of a test, the severity of the patient’s condition, and the risks associated with a missed appointment.      

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    Contributory Negligence of the Patient

    by Attorney Frank E. Reardon

    February 2000

    REARDON LAW OFFICE

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