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A Chink in the Armor: Virginia Supreme Court Upholds Viability of Contributory Negligence Defense in Medical Malpractice Case

March 21, 2017

Although contributory negligence (negligent action by the plaintiff) has long been the law in Virginia, its viability as a defense in medical malpractice cases has been limited by Virginia case law. A recent decision helped bolster the important principle that a patient’s failure to act reasonably can be fatal to his malpractice claim.

In an order dated February 1, 2017, the Virginia Supreme Court has declined to hear an appeal from a Roanoke Circuit Court decision to allow a contributory negligence instruction in a medical malpractice case, finding “no reversible error in the judgment complained of.” The Virginia Supreme Court’s denial to hear Harris v. Schirmer1 on appeal breathes life back into the application of contributory negligence in the medical malpractice context. In Harris, the trial court held that an inaccurate history given to an ED physician by his patient with the intent to mislead can suffice to allow the jury to consider whether the patient was contributorily negligent.

THE PAST: A BRIEF OVERVIEW OF THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE

The doctrine of contributory negligence is a precept of English common law that remains the law Virginia. Often deemed an ancient legal precept by its critics, the doctrine of contributory negligence has fallen out of favor in a majority of states. Virginia, however, is one of five remaining states that continues to recognize the doctrine of pure contributory negligence.2

In Virginia, two main limitations to application repeatedly arise in the medical malpractice context—contemporaneousness and knowledge disparity. Courts have held that the plaintiff’s alleged negligence must be contemporaneous with the alleged negligence of the defendant. If the two acts are not concurrent, then there is no contributory negligence. And, when weighing whether a patient’s actions were unreasonable and thus negligent, the court recognizes that there is a disparity of medical knowledge between physician and patient. Given the disparity, a plaintiff-patient is generally not contributorily negligent for having relied on the diagnosis, information, and advice given by the physician.

In looking at the pre-Harris history of contributory negligence in the medical malpractice context, the Virginia Supreme Court has found error in each of the last seven cases it considered. A brief sampling of those cases follows:

  • Lawrence v. Wirth3

The Supreme Court first addressed the issue of contributory negligence in a medical malpractice case in Lawrence v. Wirth. In Lawrence, the plaintiff-patient sought treatment by the Defendant-physician after discovering a lump on the lower part of her left breast. The Defendant failed to locate the lump on her lower left breast, and instead, removed tissue from the upper part of her breast. This tissue turned out to be benign. Thereafter, plaintiff continued to feel the lump on her lower left breast. On two separate occasions she inquired about it; both times defendant did not respond to her inquiry. Two months later, plaintiff sought a second opinion and it was determined that the lump was malignant ductal cancer requiring immediate surgery.
The defendant-physician argued that the plaintiff’s delay in obtaining a second opinion constituted contributory negligence. The trial court gave the contributory negligence instruction to the jury.

On appeal, the Virginia Supreme Court held that giving the contributory negligence instruction was error. The court reasoned that, first, given the disparity in medical knowledge between physician and patient, the patient was entitled to rely upon assurances made by the physician. Second, the purported contributory negligence was not contemporaneous because it occurred after the defendant’s negligence.

  • Eiss v. Lillis4

In Eiss v. Lillis, the Virginia Supreme Court considered a contributory negligence instruction that had been given in a matter involving a prescription. The decedent had been admitted to Loudon Memorial Hospital and treated by the defendant-physician for chest pains. The defendant-physician prescribed a blood thinner, the dosage of which required individualization and stabilization. The physician failed to properly stabilize the dosage before discharging the decedent. After discharge, a separate physician prescribed aspirin for leg pain. Thereafter, the decedent was readmitted to Loudon Memorial Hospital for bleeding and treated conservatively by the defendant-physician until the medications led to intracranial hemorrhage and death.

The plaintiff alleged that the defendant-physician was negligent in failing to treat the decedent when he was readmitted to the hospital, thereby causing his death. Defendant argued that the decedent was contributorily negligent in taking the aspirin, and the trial judge gave the jury a contributory negligence instruction. The defendant prevailed at trial.

On appeal, the Virginia Supreme Court reversed, holding that the decedent’s alleged acts of contributory negligence occurred before the defendant’s purported negligence, thereby failing to meet the requirement of contemporaneousness. By the time the decedent was readmitted, he had already taken the aspirin and was already bleeding. Thus, the aspirin was merely a factor that the defendant-physician had to take into consideration in treating the decedent. The defendant-physician could not successfully argue that he was not liable on the basis that had the decedent not taken the aspirin, the decedent would not have needed a doctor.

  • Diehl v. Butts 5

In Diehl v. Butts, the Virginia Supreme Court held that a contributory negligence instruction should not have been given to the jury because the evidence did not support the argument that the decedent was negligent in caring for his own health. In Diehl, the decedent had suffered a bicycle accident and thereafter experienced a number of headaches. The plaintiff sought treatment with defendant-physician, and the physician instructed the plaintiff to watch for worsening symptoms, without explaining to the decedent the extent of his injuries—subdural hematoma and a cranial skeletal fracture. Later, decedent was found unresponsive and died thereafter.

The Supreme Court found the contributory negligence instruction that was given to the jury was error because there was no evidence that the decedent did not rely on or follow the defendant’s medical advice.

  • Chandler v. Graffeo6

In Chandler v. Graffeo, the court found that a contributory negligence instruction was improper where there was no evidence of negligence by the decedent, a disparity of medical knowledge existed, and the alleged negligence by the decedent was not contemporaneous. Here, the decedent was admitted to the hospital complaining of sharp, mid-sternal chest pain, abdominal pain, and numbness in his legs. He returned less than a week later with worsening symptoms and was diagnosed with a thoracoabdominal aortic aneurysm. He was instructed to follow up with a certain nephrologist the following day. Decedent could not get an appointment with the nephrologist until the following week, and died in the interim. Defendant alleged that the decedent was negligent for not seeing the nephrologist the following day, as instructed by his health care provider. A contributory negligence instruction was given.

On appeal, the Virginia Supreme Court found the instruction was in error, holding that there was no evidence of negligence on the behalf of the decedent that was contemporaneous with the defendant’s decision to discharge him from the hospital. Further, the Court explained that the decedent, a patient, lacked knowledge that his condition was life threatening.

THE PRESENT: HARRIS V. SCHIRMER

As is evidenced by the above-described case history, several of the cases before Harris v. Schirmer demonstrated that although the Virginia Supreme Court had not abolished the doctrine of contributory negligence in the medical malpractice context conceptually, it was committed to limiting its application. The Court’s decision to uphold Harris, however, signifies that under the right set of facts, the doctrine is alive and well.

Factual Background

On April 6, 2011, Mark Harris (“Harris”) was admitted to the emergency department at Carilion Stonewall Jackson Hospital in Lexington, Virginia, with symptoms that included tremors, fever, diaphoresis, nausea, palpitations, restlessness, myalgias, and a headache. Just prior to his admission, Harris had taken 600 mg of Dextromethorphan, an over-the-counter cough medication.

While attempting to treat Harris, the defendant-emergency room physician, Patricia Schirmer (“Schirmer”), became aware that Harris had been admitted to the same ED approximately two weeks earlier for an apparent overdose of Selegiline, a chemical inhibitor used to treat depression, and Vyvanse, an amphetamine used to treat attention-deficit hyperactivity disorder. Based on this information, Schirmer asked Harris whether he had taken either Selegiline or Vyvanse, to which Harris initially stated he hadn’t taken either in “months” and then later qualified that he hadn’t taken either since his hospitalization two weeks earlier. Based on Harris’ denials, the treating physician concluded that an interaction between Dextromethorphan, an over-the-counter cough medication, and Selegiline, was one of the less likely causes of Harris’s symptoms. When taken together, the two substances can cause the potentially fatal condition serotonin syndrome. Harris died the following day.

It later became apparent that Harris was, in fact, suffering from serotonin syndrome caused by an interaction between Selegiline and Dextromethorphan. As recently as April 3, 2011, Harris had ingested Selegiline. The Selegiline was still in his system at the time of his admission on April 6, 2011, and facts were presented that supported Harris’s knowledge that Selegeline was still present in his system.

The defendants presented evidence that Harris’ representations that Selegeline was not in his system on April 6, 2011 were intentionally false. Specifically, defendants pointed to Harris’ attempted suicide in March 2011; statements made at the emergency room on April 6, 2011 that “[he] got it right this time” and “[he] knew what [he] was doing”; evidence that Harris had researched an article about a young girl’s fatal drug overdose; and certain emails written by Harris that suggested his suicidal intent before he ingested the 600 mg of Dextromethorphan. Defendants argued that Harris had attempted to commit suicide, and he was contributorily negligent in that he intentionally made false representations to Schirmer to frustrate her efforts to save his life. The trial court gave a contributory negligence instruction to the jury.

The jury returned a verdict in favor of defendants. Thereafter, defendants presented a proposed order to the court, to which plaintiff raised several objections, including an objection that the court erred by giving the contributory negligence instruction when there was not a scintilla of evidence to support such an instruction. Following a hearing, the trial court overruled plaintiff’s post-trial objections and judgment on verdict was entered for defendants. In support of its decision, the trial court issued an opinion explaining its reasoning in which it recognized the Virginia Supreme Court’s reluctance to allow a contributory negligence instruction in a medical malpractice case, but nevertheless found the scintilla of evidence, the contemporaneousness, and the disparity requirements were met, and a contributory negligence instruction was proper.

“Scintilla” of Evidence

The court held that Schirmer adduced more than a scintilla of evidence in support of her contributory negligence theory. Among other things, the court pointed to evidence that Harris knew the Selegiline was still in his system; that the cause of death was serotonin syndrome caused by acute Dextromethorphan and Selegiline toxicity; that Harris had researched the interaction of Dextromethorphan and Selegiline on his computer; that Harris had researched another fatal drug overdose; Harris’ denial of having taken Selegiline to his treating physician; and his statement that he “knew what [he] was doing” and he “got it right this time.”

Contemporaneousness

The court found that Schirmer’s alleged negligence was sufficiently contemporaneous with Harris’ purported negligence. The court pointed out that Harris’ failure to disclose that he had Selegiline in his system and Schirmer’s failure to diagnose serotonin syndrome both occurred at the hospital. The court acknowledged that the failure to disclose technically preceded the failure to diagnose, but held that they were sufficiently close in time to inextricably link the two actions together. Harris’s untruthfulness led to Schirmer ruling out serotonin syndrome as a likely cause. But for Harris’s deliberate denial, Schirmer would have more strongly considered serotonin syndrome as the cause of Harris’s symptoms.

Disparity in Medical Knowledge

The court held that although defendant’s medical knowledge far outweighed that of Harris, the facts of the case mitigated the emphasis that has been traditionally placed on the disparity. The court pointed out that Harris was not wholly ignorant of what was causing his condition. Rather, Harris knew of the possible interaction between the drugs he had ingested, and he may have deliberately lied to defendant about taking Selegiline. Thus, the court held, Harris’s apparent inferiority of medical knowledge should not be given as much weight as it would otherwise.

THE FUTURE: A REVIVAL OF THE CONTRIBUTORY NEGLIGENCE DEFENSE?

Virginia Supreme Court’s endorsement of the trial court’s holding in Harris affirms that the application of the doctrine in medical malpractice is a case by case analysis, and remains a powerful defense for health care providers under the appropriate facts.

1. Harris v. Schirmer, 2016 Va. Cir. LEXIS 32 (Roanoke City 2016).
2. www.mwl-law.com/wp-content/uploads/2013/03/contributory-negligence-comparative-fault-laws-in-all-50-states.pdf.
3. Lawrence v. Wirth, 226 Va. 408 (1983)
4. Eiss v. Lillis, 233 Va. 545 (1987)
5. 255 Va. 482 (1998).
6. 268 Va. 673 (2004).

The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel, Johnson & Nagle, PC, is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel, Johnson & Nagle, PC be liable for any direct, indirect, or consequential damages resulting from the use of this material.