Comparative Negligence

COMPARATIVE NEGLIGENCE IN MEDICAL MALPRACTICE CASES

Anthony Viorst, Esq.

In medical malpractice cases, the defendant, a doctor or other medical provider, will occasionally allege that the plaintiff-patient was comparatively negligent in creating the condition that required the allegedly negligent medical treatment. For instance, it has been alleged that the plaintiff's intoxication, suicide attempt, or unnecessarily dangerous conduct, which created the occasion for the medical care which later is the subject of a medical malpractice claim, should be considered an act of comparative negligence in relation to the malpractice of the treating medical provider. As shown below, Colorado state and federal courts have almost uniformly rejected this contention.

In Blackman v. Rifkin, a case more than 30 years old, the patient was intoxicated and presented for care for a scalp laceration from a head injury. At the hospital, the patient was unable to provide the medical staff with an adequate history to aid in its diagnostic efforts, and the patient also engaged in combative and obstructive behavior which interfered with those efforts. At trial, both parties introduced evidence concerning the degree of plaintiff's intoxication on the night in question, as well as evidence of the standards that should be followed in diagnosing and treating intoxicated persons. At the close of evidence, the trial court rejected the plaintiff's proposed instruction that her act of becoming intoxicated could not be considered a cause of her brain damage. Affirming this ruling, the Colorado Court of Appeals stated that " the evidence of plaintiff's intoxication here was neither remote nor distinct from the issues of malpractice. "

No Colorado appellate case issued since Blackman has authorized a medical provider accused of malpractice to assert a comparative negligence defense against the plaintiff-patient. On the contrary, only two cases have mentioned the Blackman comparative-negligence holding, and both have found it distinguishable.

In Spence v. Aspen Skiing Co., a Colorado medical malpractice case filed in federal Court, Judge Edward Nottingham distinguished Blackman, because in Blackman the patient "was unable to provide an adequate history and . . . her obstreperous behavior interfered with diagnosis and treatment. " In Spence, Judge Nottingham cited myriad cases, from across the country, supporting the proposition that a jury in a medical malpractice case should not be permitted to consider the alleged negligence of the plaintiff-patient. Judge Nottingham concluded that these cases were consistent with Colorado law, stating as follows:

. . . Persons providing medical treatment-whether they be hospitals, doctors, nurses, or EMT's-should expect to treat not only patients who fall ill or are injured through no fault of their own, but also those whose own neglect or intentional conduct has placed them in the precarious position of requiring medical treatment. Indeed, the latter category of patients is probably as numerous as the former category. All patients, regardless of how they sustain an illness or injury, may reasonably expect competent treatment from those into whose hands they have placed themselves. (Citation omitted). It would be inconsistent with the reasonable and normal expectations of both parties for the court to excuse or reduce the provider's liability simply because it was the patient's own fault that she required care in the first place.

Thereafter, in Kildahl v. Tagge, the Colorado Court of Appeals concluded that Blackman was limited to situations in which the patient hinders the defendant-doctor in the performance of his or her professional duties. In Kildahl, there was "no evidence suggesting that decedent failed to provide an adequate medical history or that she failed to cooperate in the context of the proposed treatment by defendants. " Because the decedent's conduct did not "prevent[] defendants from properly diagnosing and treating her condition, " the Court of Appeals held that the trial court erred in allowing the jury to consider the defense of comparative negligence. Since the issuance of the Kildahl decision, Colorado appellate courts have adopted its interpretation of Blackman, and have found that Blackman is limited to situations in which the plaintiff-patient fails to provide an adequate medical history or fails to cooperate with treating medical providers. And, absent such misconduct by the plaintiff-patient, a medical provider accused of malpractice is legally prohibited from interposing a comparative negligence defense against a patient.

In Fried v. Leong, the Court of Appeals cited Kildahl for the proposition that it was "error to submit [a] comparative negligence instruction in [a] malpractice case when plaintiff's conduct created only the occasion for malpractice. " Based upon the precedent set by Kildahl, the Fried Court stated further that "when a plaintiff seeks damages for the aggravation of a pre-existing condition, conduct that merely created the condition cannot be prorated. "

In P.W. v. Children's Hosp. Colo., the Colorado Supreme Court held that a known suicidal patient admitted to a secure mental health unit of a hospital and placed under high suicide-risk precautions could not be subject to a comparative negligence defense when the patient attempted suicide while in the hospital's custody. In reaching this conclusion, the P.W. Court stated that:

. . . [W]hen a defendant assumes a duty to a plaintiff, "what counts as contributory negligence is determined largely by the scope of the defendant's duty." Dan B. Dobbs, The Law of Torts § 200, at 500 (2000). If the defendant's duty to protect the plaintiff contemplates, encompasses, and thereby subsumes the plaintiff's duty not to act in a certain way, then the plaintiff cannot be faulted for acting in that way.

In P.W., supra, the Colorado Supreme Court also addressed the argument that prohibiting a comparative negligence defense would "create a rule that no patient can be comparatively negligent in a medical malpractice case. " The Court stated that no such blanket rule existed, because under Kildahl "a plaintiff's failure to provide an adequate medical history or cooperate in treatment can provide a basis for comparative negligence. "

In Blatchley v. Cunningham , a Colorado case filed in federal court, Judge Wiley Daniel granted summary judgment in favor of plaintiffs with regard to the defendant's affirmative defense of comparative negligence. In Blatchley, the plaintiff fell and sustained a leg fracture while snowboarding in Colorado. As a result of the substandard medical care that he received at the hospital, he subsequently developed compartment syndrome, resulting in permanent tissue and muscle death in that leg. The defendant hospital raised an affirmative defense of comparative negligence, asserting that the plaintiff's compartment syndrome was caused by him engaging in a dangerous snowboarding maneuver. In granting summary judgment as to this defense, Judge Daniel stated as follows:

The defense of contributory negligence in a medical malpractice action is inapplicable when a patient's conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim. Spence v. Aspen Skiing Co., 820 F.Supp. 542, 544 (D. Colo. 1993). Following the rationale in Spence, I am persuaded that a jury should not be instructed on contributory negligence or allowed to consider contributory negligence in a case against a hospital and, or in addition to, a doctor, where a plaintiff has alleged that the defendants were negligent in providing care and treatment. Id. at 543. I find this to be the case even where a plaintiff has done something negligent to place himself in the situation where hospitalization and medical care are required. See id. As the Court in Spence reasoned, "[p]ersons providing medical treatment- whether they be hospitals, doctors, nurses, or EMT's-should expect to treat not only patients who fall ill or are injured through no fault of their own, but also those whose own neglect or intentional conduct has placed them in the precarious position of requiring medical treatment." Id. at 544. Further, "[a]ll patients, regardless of how they sustain an illness or injury, may reasonably expect competent treatment from those into whose hands they have placed themselves." Id. (Citations omitted). "It would be inconsistent with the reasonable and normal expectations of both parties for the court to excuse or reduce the provider's liability simply because it was the patient's own fault that she required care in the first place." Id.

Recently, in Panczner v. Fraser, a Colorado federal diversity case, the plaintiff-patient alleged that the defendant-doctor failed to properly treat his frostbite, and the defendant-doctor asserted a defense that the plaintiff was comparatively negligent in contracting the frostbite in the first place. After examining the Kildahl, Spence, P.W., and Blatchley cases cited above, Judge William Martinez granted the plaintiff's motion for summary judgment as to the defendant's comparative negligence defense. In granting this motion, Judge Martinez stated:

. . . To hold otherwise would be a sea change in the very notion of the medical standard of care. It would endorse the idea that medical professionals may lawfully give otherwise substandard care to those who "deserve it" because they cause their own injuries. The Court is aware of no jurisdiction that would allow its medical professionals to implement such a draconian standard, much less a jurisdiction where the highest court would endorse such a standard for purposes of tort liability.

The cases cited above follow the universal rule regarding comparative negligence in medical practice cases, which is set forth in Restatement (Third) of Torts: Apportionment of Liability §7 comment M (June 2018). Comment M states that "in a case involving negligent rendition of a service, including medical services, a factfinder does not consider plaintiff's conduct that created the condition the service was employed to remedy." As examples of this principle, the Restatement presents several pertinent examples:

8. A negligently injures himself in an automobile accident. A seeks medical treatment from B, who negligently aggravates A's injury. In a suit in which A seeks to recover from B for the part of A's injuries caused by B's medical malpractice, the factfinder does not consider A's negligence in causing the accident. A's negligence produced the very condition B undertook to treat.

9. A is injured in an automobile accident but negligently delays seeking medical treatment from B, making that treatment riskier. B aggravates A's injuries by negligently providing medical treatment. In a suit in which A seeks to recover from B for the part of A's injuries caused by B's medical malpractice, the factfinder does not consider A's negligence in delaying seeking medical treatment. A's negligence produced the very condition that B undertook to treat.

10. A seeks medical treatment from B. B aggravates A's condition because B negligently fails to properly diagnose A's problem. B's failure to diagnose A's condition was due in part to A's negligent failure to provide accurate answers to B's questions. In a suit in which A seeks to recover from B the part of A's injuries caused by B's negligence, the factfinder does consider A's negligence in failing to accurately answer B's questions. That conduct was not a cause of the condition B undertook to treat.

11. A seeks medical treatment from B. B negligently provides medical treatment and injures A. A's injuries are aggravated by A's negligent failure to follow B's instructions about taking medicine. A seeks to recover damages caused by B's medical negligence. The factfinder does take into account A's negligent failure to follow B's directions with respect to taking the medicine. That conduct was not a cause of the condition B undertook to treat.

As set forth above, the Restatement only permits a medical-malpractice jury to consider the plaintiff-patient's comparative negligence in situations in which the plaintiff-patient fails to provide an adequate medical history (Illustration 10) or fails to cooperate in treatment (Illustration 11).

In addition to all of the legal authorities cited above, well-settled Colorado case law states that a tortfeasor takes his victim as he finds him. This doctrine makes a tortfeasor liable for damages to the extent the tortious conduct "has increased the severity of a pre-existing . . . condition of the plaintiff. "

The above-referenced authorities clearly weigh against the presentation of a comparative negligence defense in a Colorado medical malpractice case. A practitioner faced with a comparative negligence defense in a medical malpractice case should consider moving for summary judgment.


759 P.2d 54, 56- 57 (Colo. 1988).

Id. at 56.

820 F.Supp. 542, 544 (D. Colo. 1993).

Id. at 544.

Id. at 544.

942 P.2d 1283 (Colo. App. 1996).

Id. at 1286.

Id. at 1285-1286.

946 P.2d 487 (Colo. App. 1997).

Id. at 489.

Id.

364 P.3d 891 (Colo. 2016).

Id. at 897.

Id. at 897, n.6.

Id. at 897, n.6.

15-cv-00460-WYD-NYW, 2017 WL 4333993 (D. Colo. 2017).

Id. at 2.

374 F. Supp.3d 1063 (D. Colo. 2019). Undersigned counsel represented the plaintiff in the Panczner case.

Id. at 1074.

See Fischer v. Moore, 183 Colo. 392, 517 P.2d 458, 459 (1973); McLauphlin v. BNSF Railway Co., 300 P.3d 925, 935 (Colo. App. 2012).

McLauphlin, supra, 300 P.3d at 935 (citing 2 Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts § 8.13, at 572 (2003)).