By Alex Stein
California’s Court of Appeal has recently delivered a first-impression decision on the conditions under which a patient’s own negligence can be asserted as a defense against medical malpractice allegations. Harb v. City of Bakersfield, — Cal.Rptr.3d —- (Cal.App. 5th Dist. 2015) 2015 WL 302291. Among the materials cited by this decision was my article, Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201 (2012). The court used my “timeline approach” to separate the patient’s pre-treatment negligence, upon which providers of substandard medical care cannot rely, from self-injurious behaviors that occur during and after treatment and that can properly mitigate – and in extreme cases, even eliminate – the legal consequences of medical malpractice.
The court adjudicated a series of negligence complaints that came from a doctor who suffered a hemorrhagic stroke while driving home in his car after completing a 12–hour shift at his hospital’s neonatal intensive care unit. The stricken doctor lost control over the car and drove it onto a sidewalk. Police officers and an ambulance crew that arrived at the scene mistook him for a drunk driver for no good reason. His emergency treatment consequently was delayed at a critical time. When the doctor was finally brought to the same hospital in which he worked, he suffered from a massive bleed in the brain and his physicians could not lessen the brain damage and consequent disabilities.
In the ensuing action against the municipality that employed the police and the ambulance crew, the police’s negligence and the paramedics malpractice were beyond dispute. The defendants’ principal defense was comparative negligence: they proved that, prior to the accident, the doctor systematically failed to treat his high blood pressure by medications and essentially “gambled with his own life.” Based on that defense, the jury returned a special verdict for the defendants, and the plaintiffs appealed.
The appellate court vacated this verdict and ordered a new trial. After consulting the laws of other states and relevant academic literature, it decided to adopt the “timeline approach” (see Stein, id. 1223-24). This approach does not permit negligent providers of medical care to reduce their liability for the resulting harm by alluding to the patient’s pre-treatment negligence. At the same time, defendants are free to rely on the causal consequences of that negligence in arguing about the patient’s chances to recover upon her admission to treatment. For example, by proving that those chances equaled zero, the defendant would be able to establish that the patient was incurable. This proof would causally disassociate the defendant’s malpractice from the patient’s injury. In short, doctors and other providers of medical care must take their patient as they find her and assume undiminished responsibility for failing to deliver proper treatment.