The 'Culpable Conduct' Defense

Blameworthy conduct by the plaintiff in a medical malpractice action can take the form of failing to follow medical advice, refusing or neglecting recommended treatment, or intentionally providing an incomplete or misleading medical history. In those few states that still follow a doctrine of pure comparative negligence, a finding of culpable conduct will bar the plaintiff's recovery altogether. In states that follow a doctrine of pure or modified comparative fault, negligent conduct by a patient can be used to reduce the plaintiff's recovery by the percentage of liability attributed to the patient. And if it can be shown that the patient's conduct broke the chain of causation flowing from the defendant's alleged negligence, then recovery may be precluded even in a comparative negligence state.

Since adverse outcomes are often multifactorial, careful attention needs to be paid to developing any evidence of culpable conduct that may benefit the defense. While it may not be within the comfort zone of defense counsel to prove an affirmative case while being accused of “blaming the victim,” the proper representation of a medical malpractice defendant requires the ability to plead and prove the culpable conduct defense.

Where Culpable Conduct May Be Found

Negligence in failing to follow medical advice, resulting in an apportionment of liability to the patient and a corresponding reduction in the amount of damages the plaintiff recovers, can consist of something as simple as ignoring advice to stop smoking. In Healthsouth Sports Medicine and Rehabilitation Center of Boca Raton, Inc. v. Roark, 723 So.2d 314 (Fla. 4th DCA 1998), the plaintiff underwent surgery for a broken ankle, which involved the use of a metal plate and screws. Several weeks later, during the course of physical therapy, one of the screws became exposed. As a result, the plaintiff developed osteomyelitis, an infection in the bone that required four additional surgeries. The defendants asserted a defense of comparative negligence based on the fact that the patient had been instructed to stop smoking, but did not do so.

At trial, the defendants offered expert testimony that smoking delays the healing of wounds, and the plaintiff was found 20% at fault. After the trial court set the apportionment of liability aside, the appellate court reversed, holding that while conduct that occurred prior to the conduct at issue could not be used to reduce the plaintiff's recovery, where the defendant was able to present expert testimony that the plaintiff's failure to follow medical advice was a contributing cause to the injury, that evidence could support a finding of comparative negligence.

Similarly, in Elkins v. Ferenc, 263 AD2d 372 (1st Dept. 1999), where the plaintiff alleged that the defendant failed to diagnose and treat severe periodontal disease, resulting in the loss of several teeth, the appellate court held that the plaintiff's failure to give a complete and adequate history before treatment, as well as her heavy use of prescription drugs and tobacco and her undue delay in securing treatment of a complicating condition, all constituted comparative negligence. The same court had found one year earlier that a patient's smoking and use of medications constituted culpable conduct that merited the jury's consideration even in the presence of incomplete expert disclosure. Gallo v. Linkow, 255 AD2d 113 (1st Dept. 1998).

In Moller v. Lipov, 856 N.E.2d 664 (Ill. Ct. App. 2006), a wrongful death action alleging a failure to diagnose, treat and refer a young mother with regard to her breast cancer, the jury apportioned 50% of the liability to the decedent, based on evidence that she failed to follow instructions to return for a further examination if a mass in her breast grew larger, or if her breast pain increased. The appellate court affirmed, noting that there was some evidence to support the decedent's contributory negligence in that she continued to experience pain after a mammogram and ultrasound, and should have followed the defendant's instructions to inform him of that fact. Had she done so, he might have referred her at a point where her condition would still have been curable.

Although the culpable conduct defense is often limited to the period after the treatment at issue, in Shinholster v. Annapolis Hosp, 685 N.W.2d 275 (Mich. 20049), the court held that, under the applicable state law, the jury was permitted to consider a patient's pre-treatment negligence in offsetting a defendant's fault, “where reasonable minds could differ with regard to whether such negligence constituted 'a proximate cause' ' a foreseeable, natural and probable consequence ' of the plaintiff's injury and damages.” The court went on to find that the plaintiff's decedent's pre-treatment negligence in failing to take prescribed blood pressure medications during the year preceding her fatal stroke could constitute a proximate cause of her death, and that the defendants' percentage of liability could be reduced accordingly.

In Rochester v. Katala, 320 A.2d 704 (Del. 1974), the plaintiff's decedent's contributory negligence in falsely stating to an emergency room doctor that he was a heroin addict and had participated in a methadone program, faking the symptoms of heroin withdrawal, and not disclosing that he had consumed a quantity of alcohol, as well as several tablets of Librium before being brought to the emergency room, was held to bar any recovery under the state law at the time. While few cases will present a comparable fact pattern to that in Rochester v. Katalan, the point is that culpable conduct may be found if a defendant can prove that: 1) a patient failed to disclose a relevant aspect of his or her medical history or the circumstances of an injury; and 2) that if the information had been provided, the outcome would likely have been different.

Culpable conduct may be found even where injury or death is alleged to have occurred as a result of a practitioner's use of unconventional or alternative therapies ' which, by definition, constitute a variance from prevailing medical standards ' on a theory that the patient assumed the risks of such treatment. For example, in a case where the patient died as an alleged consequence of the defendant doctor's use of non-conventional therapies to treat non-Hodgkin's lymphoma, the court held that “the jury was correctly instructed to consider whether plaintiff's decedent's acceptance of and adherence to defendant's non-conventional therapies was culpable conduct that implicitly assumed the risk entailed thereby, and if so, the degree to which such conduct contributed to her injuries and death. Gray v. Gonzalez, 290 AD2d 292 (1st Dept. 2002), citing Charell v. Gonzalez, 251 AD2d 72 (1st Dept. 1998), lv denied 92 NY2d 816 (1998). A 51% apportionment of liability to the patient was upheld.

While expert testimony will often be required to support a culpable-conduct defense, in an appropriate case, culpable conduct may be found even in the absence of expert testimony if the subject matter is within the knowledge and experience of lay jurors. In Tenney v. Bedell, 624 F.Supp. 305, 307 (S.D.N.Y. 1985), aff'd 800 F2d 1128 (2d Cir. 1986), a pure informed consent case, the plaintiff alleged that she did not understand the risk of fecal incontinence as a potential complication of the treatment at issue. The trial court sustained a 50% allocation of damages to culpable conduct on the part of the patient and her husband, citing evidence that the plaintiffs “failed to use due care in seeking treatment and in complying with the instructions for care given to [the patient].” The court went on to conclude: “The chronology of events and subsequent treatment was sufficient to supply evidence of increased damages resulting from [the plaintiffs'] conduct, even absent expert testimony on the subject. The finding of the jury will not be set aside.” (Emphasis added).

Recently, a state's highest court upheld a culpable-conduct reduction by a jury that awarded damages against a family physician accused of undue familiarity with his adult female patient. Although the patient's expert witness opined that “eroticized transference” negated the patient's volition in the matter, the court found that the trial record supported the jury's finding that the patient bore a part of the responsibility for engaging in a sexual relationship with her doctor. Dupree v. Giuglian, 20 NY3d 92 (2012).

As demonstrated, whether the plaintiff's negligent act occurred prior to, contemporaneous with, or subsequent to the claimed malpractice is not controlling with regard to whether the patient's culpable conduct will reduce the award of damages. Likewise, the variety of acts of negligence on the part of the patient that can serve as a basis for a finding of culpable conduct is seemingly without limit.

Where Culpable Conduct Affects Infants' Claims

It has long been the law that a young child who is non sui juris is incapable of being negligent. See, e.g., Verni v. Johnson, 295 NY 436 (1946). Courts also generally hold that the negligence of a parent or custodian may not be imputed to an infant who has been injured by the negligence of a third party. How, then, can there be negligent conduct of a custodian or parent that has any influence on the damages exposure of a medical malpractice defendant?

In point of fact, the negligence of the plaintiff (or the plaintiff's parent) can preclude any award against the defendant by defeating the argument that there is liability on the defendant's part.

Liability of a medical malpractice defendant requires proof of: 1) a physician-patient relationship in which 2) there was a departure from generally accepted standards of practice; and 3) that departutre caused injury to the patient. See, e.g., Koehler v. Schwartz, 48 NY2d 807, 809 (1979). Therefore, if it may be possible to establish that, because of the patient's or parent's negligence, no physician-patient relationship was ever formed; or that there was no departure and the patient's or parent's subsequent conduct was the cause of the injury. When these things can be shown, the defendant will likely prevail.

The case of Miller v. Sullivan, 214 AD2d 822 (3d Dept. 1995), involved a situation in which the survivors of a dentist brought a lawsuit against his friend, a physician whom the decedent called when he was experiencing cardiac symptoms. The patient went on to suffer cardiac arrest, from which he sustained hypoxic brain damage, contributing to his death three years later. While the appellate court acknowledged that a physician-patient relationship could be created by a single telephone call, it found as a matter of law that there was no physician-patient relationship between the patient and the physician, and sustained the dismissal of the complaint. The doctor had told the patient to “come over and see him right away,” and since the patient pursued a different course that was not foreseeable to the doctor as a matter of law, the evidence was insufficient to establish a physician-patient relationship.

Consideration-of-Damages

The importance of this decision rests in the fact that the culpable conduct of the decedent was not limited to the consideration-of-damages issues, but served to defeat the liability claim. So, where the conduct of the patient, or even the parents of the patient, serves to defeat an element of the cause of action against the defendant, the culpability of the parents does not have to be imputed to the child in order to preclude recovery on behalf of an infant plaintiff.

In Rivera v. Kleinma, 67 AD3d 482 (1st Dept. 2009), aff'd 16 NY3d 759 (2011), the parents of the infant patient had been told to have orthopedic hardware removed 18 to 24 months after it was surgically placed. Although the child had suffered the consequences of infection at the site of the hardware, the appellate court concluded that proximate cause could not be established because the parents had delayed for more than a year in having the hardware removed. The negligence of the plaintiff or parents can thus constitute a supervening or intervening cause, which breaks the causal connection between the act or omission of the defendant and the damages of the patient.

Another notable case in this regard is Vaughan v. St. Francis Hospital, 29 AD3d 1133, which involved a 26-month-old child who was clearly non sui juris. His mother had delayed two days in taking the child to his pediatrician for follow-up care after an emergency room visit during which the child had never actually been seen by a physician.

The toddler contracted bacterial meningitis, which left him with significant injuries. In reversing the lower court's decision to preclude evidence of the mother's failure to follow the instructions, the appellate court explained that it agreed with counsel for the defendant that the evidence was admissible, not because the parent's negligence could be imputed to the child, but because the hospital could prove that it satisfied the standard of care (thus negating the element of departure from accepted practice) by showing that the mother was properly instructed at the time she left the emergency room with the child plaintiff.

As demonstrated, even if the culpable conduct of a parent or custodian may not be imputable to an infant plaintiff for purposes of reducing damages, in Miller , culpable conduct defeated the physician-patient duty; in Vaughan, it bore on whether there was a departure from accepted practice; and in Rivera, it defeated the required element of proximate cause. Given the significant exposure that often attends malpractice claims advanced on behalf of infants, it is therefore obvious why defense counsel must evaluate parental negligence carefully.

Practice Considerations

Appellate courts frequently address claims that procedural issues in the trial court should have precluded consideration of the culpable conduct defense. Since culpable conduct is an affirmative defense, the burden of pleading and proving the patient's negligence falls upon the defendant. Similarly, defense counsel must provide bills of particulars and respond to the plaintiff's discovery demands regarding a culpable conduct defense in an adequate and timely manner. At trial, defense counsel must adduce sufficient evidence to establish the patient's negligence, or the trial court's refusal to submit the issue to the jury will be sustained on appeal. Unless the patient's negligence would be readily apparent to the lay jurors on the basis of their own common knowledge and experience, expert testimony will be necessary to support a culpable conduct defense.

In sum, the approach to the culpable-conduct defense has to be timely and consistent. Where there is merit to the defense it has to be pleaded, particularized and developed during discovery, and then supported by appropriate proof at trial. But where the defense is carefully advanced, it can be of significant value to the defense whether it is used to disprove liability on the part of the defendant or reduce the damages awarded to the patient.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg , a member of this newsletter's Board of Editors, is a partner practicing in the firm's New York office, where she is Head of the Appellate Department.

Blameworthy conduct by the plaintiff in a medical malpractice action can take the form of failing to follow medical advice, refusing or neglecting recommended treatment, or intentionally providing an incomplete or misleading medical history. In those few states that still follow a doctrine of pure comparative negligence, a finding of culpable conduct will bar the plaintiff's recovery altogether. In states that follow a doctrine of pure or modified comparative fault, negligent conduct by a patient can be used to reduce the plaintiff's recovery by the percentage of liability attributed to the patient. And if it can be shown that the patient's conduct broke the chain of causation flowing from the defendant's alleged negligence, then recovery may be precluded even in a comparative negligence state.

Since adverse outcomes are often multifactorial, careful attention needs to be paid to developing any evidence of culpable conduct that may benefit the defense. While it may not be within the comfort zone of defense counsel to prove an affirmative case while being accused of “blaming the victim,” the proper representation of a medical malpractice defendant requires the ability to plead and prove the culpable conduct defense.

Where Culpable Conduct May Be Found

Negligence in failing to follow medical advice, resulting in an apportionment of liability to the patient and a corresponding reduction in the amount of damages the plaintiff recovers, can consist of something as simple as ignoring advice to stop smoking. In Healthsouth Sports Medicine and Rehabilitation Center of Boca Raton, Inc. v. Roark , 723 So.2d 314 (Fla. 4th DCA 1998), the plaintiff underwent surgery for a broken ankle, which involved the use of a metal plate and screws. Several weeks later, during the course of physical therapy, one of the screws became exposed. As a result, the plaintiff developed osteomyelitis, an infection in the bone that required four additional surgeries. The defendants asserted a defense of comparative negligence based on the fact that the patient had been instructed to stop smoking, but did not do so.

At trial, the defendants offered expert testimony that smoking delays the healing of wounds, and the plaintiff was found 20% at fault. After the trial court set the apportionment of liability aside, the appellate court reversed, holding that while conduct that occurred prior to the conduct at issue could not be used to reduce the plaintiff's recovery, where the defendant was able to present expert testimony that the plaintiff's failure to follow medical advice was a contributing cause to the injury, that evidence could support a finding of comparative negligence.

Similarly, in Elkins v. Ferenc , 263 AD2d 372 (1st Dept. 1999), where the plaintiff alleged that the defendant failed to diagnose and treat severe periodontal disease, resulting in the loss of several teeth, the appellate court held that the plaintiff's failure to give a complete and adequate history before treatment, as well as her heavy use of prescription drugs and tobacco and her undue delay in securing treatment of a complicating condition, all constituted comparative negligence. The same court had found one year earlier that a patient's smoking and use of medications constituted culpable conduct that merited the jury's consideration even in the presence of incomplete expert disclosure. Gallo v. Linkow , 255 AD2d 113 (1st Dept. 1998).

In Moller v. Lipov , 856 N.E.2d 664 (Ill. Ct. App. 2006), a wrongful death action alleging a failure to diagnose, treat and refer a young mother with regard to her breast cancer, the jury apportioned 50% of the liability to the decedent, based on evidence that she failed to follow instructions to return for a further examination if a mass in her breast grew larger, or if her breast pain increased. The appellate court affirmed, noting that there was some evidence to support the decedent's contributory negligence in that she continued to experience pain after a mammogram and ultrasound, and should have followed the defendant's instructions to inform him of that fact. Had she done so, he might have referred her at a point where her condition would still have been curable.

Although the culpable conduct defense is often limited to the period after the treatment at issue, in Shinholster v. Annapolis Hosp , 685 N.W.2d 275 (Mich. 20049), the court held that, under the applicable state law, the jury was permitted to consider a patient's pre-treatment negligence in offsetting a defendant's fault, “where reasonable minds could differ with regard to whether such negligence constituted 'a proximate cause' ' a foreseeable, natural and probable consequence ' of the plaintiff's injury and damages.” The court went on to find that the plaintiff's decedent's pre-treatment negligence in failing to take prescribed blood pressure medications during the year preceding her fatal stroke could constitute a proximate cause of her death, and that the defendants' percentage of liability could be reduced accordingly.

In Rochester v. Katala , 320 A.2d 704 (Del. 1974), the plaintiff's decedent's contributory negligence in falsely stating to an emergency room doctor that he was a heroin addict and had participated in a methadone program, faking the symptoms of heroin withdrawal, and not disclosing that he had consumed a quantity of alcohol, as well as several tablets of Librium before being brought to the emergency room, was held to bar any recovery under the state law at the time. While few cases will present a comparable fact pattern to that in Rochester v. Katalan, the point is that culpable conduct may be found if a defendant can prove that: 1) a patient failed to disclose a relevant aspect of his or her medical history or the circumstances of an injury; and 2) that if the information had been provided, the outcome would likely have been different.

Culpable conduct may be found even where injury or death is alleged to have occurred as a result of a practitioner's use of unconventional or alternative therapies ' which, by definition, constitute a variance from prevailing medical standards ' on a theory that the patient assumed the risks of such treatment. For example, in a case where the patient died as an alleged consequence of the defendant doctor's use of non-conventional therapies to treat non-Hodgkin's lymphoma, the court held that “the jury was correctly instructed to consider whether plaintiff's decedent's acceptance of and adherence to defendant's non-conventional therapies was culpable conduct that implicitly assumed the risk entailed thereby, and if so, the degree to which such conduct contributed to her injuries and death. Gray v. Gonzalez , 290 AD2d 292 (1st Dept. 2002), citing Charell v. Gonzalez , 251 AD2d 72 (1st Dept. 1998), lv denied 92 NY2d 816 (1998). A 51% apportionment of liability to the patient was upheld.

While expert testimony will often be required to support a culpable-conduct defense, in an appropriate case, culpable conduct may be found even in the absence of expert testimony if the subject matter is within the knowledge and experience of lay jurors. In Tenney v. Bedell , 624 F.Supp. 305, 307 (S.D.N.Y. 1985), aff'd 800 F2d 1128 (2d Cir. 1986), a pure informed consent case, the plaintiff alleged that she did not understand the risk of fecal incontinence as a potential complication of the treatment at issue. The trial court sustained a 50% allocation of damages to culpable conduct on the part of the patient and her husband, citing evidence that the plaintiffs “failed to use due care in seeking treatment and in complying with the instructions for care given to [the patient].” The court went on to conclude: “The chronology of events and subsequent treatment was sufficient to supply evidence of increased damages resulting from [the plaintiffs'] conduct, even absent expert testimony on the subject. The finding of the jury will not be set aside.” (Emphasis added).

Recently, a state's highest court upheld a culpable-conduct reduction by a jury that awarded damages against a family physician accused of undue familiarity with his adult female patient. Although the patient's expert witness opined that “eroticized transference” negated the patient's volition in the matter, the court found that the trial record supported the jury's finding that the patient bore a part of the responsibility for engaging in a sexual relationship with her doctor. Dupree v. Giuglian , 20 NY3d 92 (2012).

As demonstrated, whether the plaintiff's negligent act occurred prior to, contemporaneous with, or subsequent to the claimed malpractice is not controlling with regard to whether the patient's culpable conduct will reduce the award of damages. Likewise, the variety of acts of negligence on the part of the patient that can serve as a basis for a finding of culpable conduct is seemingly without limit.

Where Culpable Conduct Affects Infants' Claims

It has long been the law that a young child who is non sui juris is incapable of being negligent. See, e.g., Verni v. Johnson , 295 NY 436 (1946). Courts also generally hold that the negligence of a parent or custodian may not be imputed to an infant who has been injured by the negligence of a third party. How, then, can there be negligent conduct of a custodian or parent that has any influence on the damages exposure of a medical malpractice defendant?

In point of fact, the negligence of the plaintiff (or the plaintiff's parent) can preclude any award against the defendant by defeating the argument that there is liability on the defendant's part.

Liability of a medical malpractice defendant requires proof of: 1) a physician-patient relationship in which 2) there was a departure from generally accepted standards of practice; and 3) that departutre caused injury to the patient. See, e.g., Koehler v. Schwartz , 48 NY2d 807, 809 (1979). Therefore, if it may be possible to establish that, because of the patient's or parent's negligence, no physician-patient relationship was ever formed; or that there was no departure and the patient's or parent's subsequent conduct was the cause of the injury. When these things can be shown, the defendant will likely prevail.

The case of Miller v. Sullivan , 214 AD2d 822 (3d Dept. 1995), involved a situation in which the survivors of a dentist brought a lawsuit against his friend, a physician whom the decedent called when he was experiencing cardiac symptoms. The patient went on to suffer cardiac arrest, from which he sustained hypoxic brain damage, contributing to his death three years later. While the appellate court acknowledged that a physician-patient relationship could be created by a single telephone call, it found as a matter of law that there was no physician-patient relationship between the patient and the physician, and sustained the dismissal of the complaint. The doctor had told the patient to “come over and see him right away,” and since the patient pursued a different course that was not foreseeable to the doctor as a matter of law, the evidence was insufficient to establish a physician-patient relationship.

Consideration-of-Damages

The importance of this decision rests in the fact that the culpable conduct of the decedent was not limited to the consideration-of-damages issues, but served to defeat the liability claim. So, where the conduct of the patient, or even the parents of the patient, serves to defeat an element of the cause of action against the defendant, the culpability of the parents does not have to be imputed to the child in order to preclude recovery on behalf of an infant plaintiff.

In Rivera v. Kleinma , 67 AD3d 482 (1st Dept. 2009), aff'd 16 NY3d 759 (2011), the parents of the infant patient had been told to have orthopedic hardware removed 18 to 24 months after it was surgically placed. Although the child had suffered the consequences of infection at the site of the hardware, the appellate court concluded that proximate cause could not be established because the parents had delayed for more than a year in having the hardware removed. The negligence of the plaintiff or parents can thus constitute a supervening or intervening cause, which breaks the causal connection between the act or omission of the defendant and the damages of the patient.

Another notable case in this regard is Vaughan v. St. Francis Hospital , 29 AD3d 1133, which involved a 26-month-old child who was clearly non sui juris . His mother had delayed two days in taking the child to his pediatrician for follow-up care after an emergency room visit during which the child had never actually been seen by a physician.

The toddler contracted bacterial meningitis, which left him with significant injuries. In reversing the lower court's decision to preclude evidence of the mother's failure to follow the instructions, the appellate court explained that it agreed with counsel for the defendant that the evidence was admissible, not because the parent's negligence could be imputed to the child, but because the hospital could prove that it satisfied the standard of care (thus negating the element of departure from accepted practice) by showing that the mother was properly instructed at the time she left the emergency room with the child plaintiff.

As demonstrated, even if the culpable conduct of a parent or custodian may not be imputable to an infant plaintiff for purposes of reducing damages, in Miller , culpable conduct defeated the physician-patient duty; in Vaughan, it bore on whether there was a departure from accepted practice; and in Rivera, it defeated the required element of proximate cause. Given the significant exposure that often attends malpractice claims advanced on behalf of infants, it is therefore obvious why defense counsel must evaluate parental negligence carefully.

Practice Considerations

Appellate courts frequently address claims that procedural issues in the trial court should have precluded consideration of the culpable conduct defense. Since culpable conduct is an affirmative defense, the burden of pleading and proving the patient's negligence falls upon the defendant. Similarly, defense counsel must provide bills of particulars and respond to the plaintiff's discovery demands regarding a culpable conduct defense in an adequate and timely manner. At trial, defense counsel must adduce sufficient evidence to establish the patient's negligence, or the trial court's refusal to submit the issue to the jury will be sustained on appeal. Unless the patient's negligence would be readily apparent to the lay jurors on the basis of their own common knowledge and experience, expert testimony will be necessary to support a culpable conduct defense.

In sum, the approach to the culpable-conduct defense has to be timely and consistent. Where there is merit to the defense it has to be pleaded, particularized and developed during discovery, and then supported by appropriate proof at trial. But where the defense is carefully advanced, it can be of significant value to the defense whether it is used to disprove liability on the part of the defendant or reduce the damages awarded to the patient.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg , a member of this newsletter's Board of Editors, is a partner practicing in the firm's New York office, where she is Head of the Appellate Department.