Contributory negligence is any unreasonable conduct, or absence of ordinary care on the part of the patient, or his personal attendant, which combined with the doctor’s negligence, contributed to the injury complained of, as a direct, proximate cause and without which the injury would not have occurred. These include
(1) failure to give the doctor accurate medical history. If the patient provides incomplete or inadequate information, it could result in misdiagnosis, mistreatment and harm.
(2) failure to cooperate with his doctor in carrying out all reasonable and proper instructions,
(3) refusal to take the suggested treatment,
(4) leaving the hospital against the doctor’s advice,
(5) failure to seek further medical assistance if symptoms persist.
As such, the doctor’s contributory negligence is not the direct, proximate cause (actual or legal cause) of the injury suffered by the patient. Proximate cause means, that which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury, and without which the result would not have occurred.
If the doctor and the patient are negligent at the same time, it is a good defense for the doctor. The doctor cannot plead contributory negligence, if he fails to give proper instructions. The extent of contributory negligence may vary and with it will vary the doctor’s liability, from complete non-liability to a substantial liability for damages.
Normally, contributory negligence is only a partial defense, and the Court has right to fix liability between the parties (doctrine of comparative negligence), and damages awarded may be reduced accordingly. The burden of proof lies entirely on the doctor.
If a patient consent’s to take the risk of the injurious event actually taking place, he cannot claim damages. If a doctor is not negligent, but if a patient is negligent which results in injury, it is called contributory negligence of the patient.
Good Samaritan doctrine: One who assists another who is in serious danger cannot be charged with contributory negligence, unless the assistance is reckless or rash.
LIMITATIONS TO CONTRIBUTORY NEGLIGENCE:
(a) THE LAST CLEAR CHANCE DOCTRINE: Under this rule, a person who has negligently placed himself in a position of danger may recover damages, if the doctor discovered the danger while there was still time to avoid the injury or failed to do so.
(b) THE AVOIDABLE CONSEQUENCES RULE: This is applicable where the negligence of the injured person occurs after that of the doctor being sued and increases the severity of injury. In such cases, the patient is not guilty of contributory negligence, since his actions were not a cause of the injury.
CASE: A surgeon was sued for not removing a swab from the vagina of patient. The patient complained about pain in the vagina to a nurse some time after the operation. The nurse examined the vagina and removed the swab. The patient did not inform the surgeon about the swab in the vagina. The Court held that the doctor was guilty of contributory negligence.