Appeal from the Superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Sr., Trial Judge)
Before Wagner,* Chief Judge, and Ferren** and Steadman, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: This is an appeal from a judgment of $650,000 for medical malpractice against appellants George Washington University ("GWU") and two doctors in that university's hospital. *fn1 The verdict was based upon the negligent failure of the defendants to diagnose appellee Murray Waas's colon cancer during a period of treatment from October 1984 to March 1985. The diagnosis of colon cancer was eventually made by a doctor in another hospital in January 1987.
At trial, considerable disputed evidence was introduced about Mr. Waas's failure to faithfully follow the instructions of his doctors (including both appellants and other doctors who treated him) and otherwise cooperate in medical treatment, both prior and subsequent to the cancer diagnosis. On appeal, GWU contends that (1) the trial court erred in giving a jury instruction that Mr. Waas's post-diagnosis non-cooperation was not evidence of contributory negligence; and (2) the trial court abused its discretion in refusing to give GWU's requested instruction that a patient has a duty to cooperate with his or her physician. Finding no reversible error, we affirm.
Although GWU's major focus of Mr. Waas's non-cooperation with his doctors was on conduct preceding the eventual discovery of the cancer, evidence of Mr. Waas's conduct following the diagnosis was also admitted into evidence over Mr. Waas's objection. However during the Discussion of jury instructions, the trial court, over GWU's objection, subsequently instructed the jury that "any behavior on Mr. Waas' part after the diagnosis of cancer in January 1987 is not evidence of contributory negligence which contributed to his result." *fn2
GWU argues that the trial court erred in giving this instruction, claiming Mr. Waas's post-diagnosis non-cooperation was direct evidence of contributory negligence which could act as a complete bar to his recovery. *fn3 GWU principally relies on Chudson v. Ratra, 76 Md. App. 753, 548 A.2d 172 (Md. Ct. Spec. App. 1988), cert. denied, 314 Md. 628, 552 A.2d 894 (Md. 1989), and Grippe v. Momtazee, 705 S.W.2d 551 (Mo. Ct. App. 1986), for the proposition that a patient's conduct occurring after a doctor's alleged negligence can properly form the basis of a finding of contributory negligence where the patient's own negligence directly contributed to the injury. GWU argues that Mr. Waas's principal injury is "the anxiety arising from his appreciation that, be cause of a delay in diagnosis, his chance of surviving without reoccurrence [of cancer] is less than what it would have otherwise been" and that any "negligence of Mr. Waas in taking steps reasonably to avoid that anxiety directly contributes to that injury."
Generally "the plaintiff is barred from recovery if his [or her] negligence was a substantial factor in causing his [or her] injury, even if the defendant was also negligent, as long as the plaintiff's negligence contributed in 'some degree' to his [or her] injury." Sinai v. Polinger Co., 498 A.2d 520, 528 (D.C. 1985). *fn4 "Moreover, it must be shown that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission." Standardized Civil Jury Instructions for the District of Columbia No. 5-11 (1981). See Dunn v. Marsh, 129 U.S. App. D.C. 245, 248, 393 F.2d 354, 357 (1968).
In dealing with medical malpractice situations where the plaintiffs alleged contributory negligence occurred subsequent to the defendant's alleged negligence, the majority of courts appear to have taken the view, at least on the specific facts presented, that to totally bar recovery, the contributory negligence of the plaintiff must be contemporaneous with the negligence of the doctor; therefore, a patient's non-cooperation with the doctor's instructions after the doctor's alleged negligent act will only reduce or mitigate the patient's damages to the extent that the patient's negligence increased the extent of the injury. See Chudson, 548 A.2d at 181-82 and cases cited therein. Accord, Blair v. Eblen, 461 S.W.2d 370, 372 (Ky. 1970) (plaintiff's failure to exercise injured hand as instructed); Leadingham v. Hillman, 224 Ky. 177, 5 S.W.2d 1044, 1045-046 (Ky. 1928) (plaintiff's failure to go to hospital to get arm rebroken and reset as instructed by defendant); Flynn v. Stearns, 52 N.J. Super. 115, 145 A.2d 33, 38 (N.J. Super. Ct. App. Div. 1958) (plaintiff's failure to continue exercises of elbow as instructed); Jenkins v. Charleston General Hospital & Training School, 90 W. Va. 230, 110 S.E. 560, 563-66 (W. Va. 1922) (plaintiffs failure to return to hospital as instructed); Williams v. Wurdemann, 71 Wash. 390, 128 P. 639, 640 (Wash. 1912) (plaintiffs failure to return to doctors for treatment "when he discovered that he was not getting along as well as he should"). "This view seems to regard the patient's subsequent negligence as simply exacerbating the damage flowing from the doctor's negligence rather then contributing to the injury caused by that negligence." Chudson, 548 A.2d at 181.
However, other courts have rejected any strict simultaneity rule and held that a plaintiffs subsequent negligence may form the basis of a finding of contributory negligence which would bar plaintiffs recovery without requiring that the plaintiffs contributory negligence be concurrent with the defendant's alleged negligence. The leading case is Chudson, 548 A.2d at 182. In Chudson, the Court of Special Appeals of Maryland specifically acknowledged the foregoing line of cases which require that plaintiffs negligence be concurrent with that of the defendant's, and observed:
In some contexts, this may be an entirely correct approach, even where contributory negligence is generally held to be a bar to any recovery. Where the injury flowing from the primary negligence is essentially complete prior, and thus without regard, to any negligence on the part of the patient, and the patient's failure to seek further advice or treatment simply enhances the injury, the distinction drawn by those cases may be appropriate. Where liability for negligence or malpractice has been incurred by a physician, subsequent negligence of the patient, which aggravates the injury primarily sustained at the hands of the physician, does not discharge the latter from liability, but only goes in mitigation of damages.
548 A.2d at 182 (citations omitted) (emphasis in original). In Chudson, the alleged negligent diagnosis occurred in January 1984, and the actual diagnosis of breast cancer in August 1984. Id. at 174-75. The key issue was whether the patient's failure to seek medical assistance during the critical period (from the date of defendant's alleged negligence to the date of diagnosis) was contributory negligence. Id. at 176. The plaintiff felt some changes in the lump in her breast in April 1984 but did not contact her physician until August 1984. Id. at 174-75. The court in Chudson went on to hold that:
The injury sued upon here was the spread of the cancer to the point of incurability and lethality, and . . . the evidence allowed a finding that [the plaintiff's] failure to seek medical assistance after January 1984, did more than simply exacerbate her injury. It directly contributed to it by precluding diagnosis and treatment at a time when the cancer was still probably curable.
Id. at 182. The court stated that this view is consistent with the general view of contributory negligence in Maryland. Id. Because contributory negligence is viewed as an aspect of the plaintiffs response to a known danger from which injury might reasonably be anticipated, the plaintiffs contributory negligence need not be congruent in time with the defendant's negligence. Id. Thus, the court stated that, particularly in cases where the injury does not manifest itself immediately, as in cancer cases, the "test is not simultaneity but whether the plaintiff's dereliction has significantly contributed to the injury for which he or she sues." *fn5 Id. at 182-83; see generally Roers v. Engebretson, 479 N.W.2d 422, 424 (Minn. Ct. App. 1992) ("The jury heard competent expert ...