Position Paper 1 with 600 words minimum

Ostrowski v. Azzara (Week 5)

D.CONTRIBUTORY FAULT OF THE PATIENT

Patients through their own mistakes or lifestyle often enhance, or even cause, their injuries. People don’t take their doctor’s advice; they fall off their diets, stop exercising, start smoking, or act in a variety of ways counterproductive to their health. Very few tort cases have raised a patient’s lifestyle choice as a defense to a malpractice claim. Consider the following case.

Ostrowski v. Azzara

Supreme Court of New Jersey, 1988. 111 N.J. 429, 545 A.2d 148 .

O’Hern, J.

This case primarily concerns the legal significance of a medical malpractice claimant’s pre-treatment health habits. Although the parties agreed that such habits should not be regarded as evidencing comparative fault for the medical injury at issue, we find that the instructions to the jury failed to draw the line clearly between the normal mitigation of damages expected of any claimant and the concepts of comparative fault that can preclude recovery in a fault-based system of tort reparation. Accordingly, we reverse the judgment below that disallowed any recovery to the diabetic plaintiff who had bypass surgery to correct a loss of circulation in a leg. The need for this bypass was found by the jury to have been proximately caused by the physician’s neglect in performing an improper surgical procedure on the already weakened plaintiff.

I

As noted, the parties do not dispute that a physician must exercise the degree of care commensurate with the needs of the patient as she presents herself. This is but another way of saying that a defendant takes the plaintiff as she finds her. The question here, however, is much more subtle and complex. The complication arose from the plaintiff’s seemingly routine need for care of an irritated toe. The plaintiff had long suffered from diabetes attributable, in unfortunate part perhaps, to her smoking and to her failure to adhere closely to her diet. Diabetic patients often have circulatory problems. For purposes of this appeal, we shall accept the general version of the events that led up to the operation as they are set forth in defendant-physician’s brief.

On May 17, 1983, plaintiff, a heavy smoker and an insulin-dependent diabetic for twenty years, first consulted with defendant, Lynn Azzara, a doctor of podiatric medicine, a specialist in the care of feet. Plaintiff had been referred to Dr. Azzara by her internist whom she had last seen in November 1982. Dr. Azzara’s notes indicated that plaintiff presented a sore left big toe, which had troubled her for approximately one month, and calluses. She told Dr. Azzara that she often suffered leg cramps that caused a tightening of the leg muscles or burning in her feet and legs after walking and while lying in bed. She had had hypertension (abnormally high blood pressure) for three years and was taking a diuretic for this condition.

Physical examination revealed redness in the plaintiff’s big toe and elongated and incurvated toenails. Incurvated toenails are not ingrown; rather, they press against the skin. Diminished pulses on her foot indicated decreased blood supply to that area, as well as decreased circulation and impaired vascular status. Dr. Azzara made a diagnosis of onychomycosis (a fungous disease of the nails) and formulated a plan of treatment to debride (trim) the incurvated nail. Since plaintiff had informed her of a high blood sugar level, Dr. Azzara ordered a fasting blood sugar test and a urinalysis; she also noted that a vascular examination should be considered for the following week if plaintiff showed no improvement.

Plaintiff next saw Dr. Azzara three days later, on May 20, 1983. The results of the fasting blood sugar test indicated plaintiff’s blood sugar was high, with a reading of 306. The urinalysis results also indicated plaintiff’s blood sugar was above normal. At this second visit, Dr. Azzara concluded that plaintiff had peripheral vascular disease, poor circulation, and diabetes with a very high sugar elevation. She discussed these conclusions with plaintiff and explained the importance of better sugar maintenance. She also explained that a complication of peripheral vascular disease and diabetes is an increased risk of losing a limb if the diabetes is not controlled. The lack of blood flow can lead to decaying tissue. The parties disagree on whether Dr. Azzara told plaintiff she had to return to her internist to treat her blood sugar and circulation problems, or whether, as plaintiff indicates, Dr. Azzara merely suggested to plaintiff that she see her internist.

In any event, plaintiff came back to Dr. Azzara on May 31, 1983, and, according to the doctor, reported that she had seen her internist and that the internist had increased her insulin and told her to return to Dr. Azzara for further treatment because of her continuing complaints of discomfort about her toe. However, plaintiff had not seen the internist. Dr. Azzara contends that she believed plaintiff’s representations. A finger-stick glucose test administered to measure plaintiff’s non-fasting blood sugar yielded a reading of 175. A physical examination of the toe revealed redness and drainage from the distal medial (outside front) border of the nail, and the toenail was painful to the touch. Dr. Azzara’s proposed course of treatment was to avulse, or remove, all or a portion of the toenail to facilitate drainage.

Dr. Azzara says that prior to performing the removal procedure she reviewed with Mrs. Ostrowski both the risks and complications of the procedure, including nonhealing and loss of limb, as well as the risks involved with not treating the toe. Plaintiff executed a consent form authorizing Dr. Azzara to perform a total removal of her left big toenail. The nail was cut out. (Defendant testified that she cut out only a portion of the nail, although her records showed a total removal.)

Two days later, plaintiff saw her internist. He saw her four additional times in order to check the progress of the toe. As of June 30, 1983, the internist felt the toe was much improved. While plaintiff was seeing the internist, she continued to see Dr. Azzara, or her associate, Dr. Bergman. During this period the toe was healing slowly, as Dr. Azzara said one would expect with a diabetic patient.

During the time plaintiff was being treated by her internist and by Dr. Azzara, she continued to smoke despite advice to the contrary. Her internist testified at the trial that smoking accelerates and aggravates peripheral vascular disease and that a diabetic patient with vascular disease can by smoking accelerate the severity of the vascular disease by as much as fifty percent. By mid-July, plaintiff’s toe had become more painful and discolored.

At this point, all accord ceases. Plaintiff claims that it was the podiatrist’s failure to consult with the patient’s internist and defendant’s failure to establish by vascular tests that the blood flow was sufficient to heal the wound, and to take less radical care, that left her with a non-healing, pre-gangrenous wound, that is, with decaying tissue. As a result, plaintiff had to undergo immediate bypass surgery to prevent the loss of the extremity. If left untreated, the pre-gangrenous toe condition resulting from the defendant’s nail removal procedure would have spread, causing loss of the leg. The plaintiff’s first bypass surgery did not arrest the condition, and she underwent two additional bypass surgeries which, in the opinion of her treating vascular surgeon, directly and proximately resulted from the unnecessary toenail removal procedure on May 31, 1983. In the third operation a vein from her right leg was transplanted to her left leg to increase the flow of blood to the toe.

At trial, defense counsel was permitted to show that during the pre-treatment period before May 17, 1983, the plaintiff had smoked cigarettes and had failed to maintain her weight, diet, and blood sugar at acceptable levels. The trial court allowed this evidence of the plaintiff’s pre-treatment health habits to go to the jury on the issue of proximate cause. Defense counsel elicited admissions from plaintiff’s internist and vascular surgeon that some doctors believe there is a relationship between poor self-care habits and increased vascular disease, perhaps by as much as fifty percent. But no medical expert for either side testified that the plaintiff’s post-treatment health habits could have caused her need for bypass surgery six weeks after defendant’s toenail removal. Nevertheless, plaintiff argues that defense counsel was permitted to interrogate the plaintiff extensively on her post-avulsion and post-bypass health habits, and that the court allowed such evidence of plaintiff’s health habits during the six weeks after the operation to be considered as acts of comparative negligence that could bar recovery rather than reduce her damages. The jury found that the doctor had acted negligently in cutting out the plaintiff’s toenail without adequate consideration of her condition, but found plaintiff’s fault (fifty-one percent) to exceed that of the physician (forty-nine percent). She was therefore disallowed any recovery. On appeal the Appellate Division affirmed in an unreported decision. We granted certification to review plaintiff’s claims.[ ] We are told that since the trial, the plaintiff’s left leg has been amputated above the knee. This was foreseen, but not to a reasonable degree of medical probability at the time of trial.

II

Several strands of doctrine are interwoven in the resolution of this matter. The concepts of avoidable consequences, the particularly susceptible victim, aggravation of preexisting condition, comparative negligence, and proximate cause each play a part. It may be useful to unravel those strands of doctrine for separate consideration before considering them in the composite.

Comparative negligence is a legislative amelioration of the perceived harshness of the common-law doctrine of contributory negligence. * * *

Comparative negligence was intended to ameliorate the harshness of contributory negligence but should not blur its clarity. It was designed only to leave the door open to those plaintiffs whose fault was not greater than the defendant’s, not to create an independent gate-keeping function. Comparative negligence, then, will qualify the doctrine of contributory negligence when that doctrine would otherwise be applicable as a limitation on recovery. * * *

* * * The doctrine [of avoidable consequences] proceeds on the theory that a plaintiff who has suffered an injury as the proximate result of a tort cannot recover for any portion of the harm that by the exercise of ordinary care he could have avoided.[ ] * * * Avoidable consequences, then, normally comes into action when the injured party’s carelessness occurs after the defendant’s legal wrong has been committed. Contributory negligence, however, comes into action when the injured party’s carelessness occurs before defendant’s wrong has been committed or concurrently with it.[ ]

A counterweight to the doctrine of avoidable consequences is the doctrine of the particularly susceptible victim. This doctrine is familiarly expressed in the maxim that “defendant ‘must take plaintiff as he finds him.’ ”[ ] * * * It is ameliorated by the doctrine of aggravation of a preexisting condition. While it is not entirely possible to separate the doctrines of avoidable consequence and preexisting condition, perhaps the simplest way to distinguish them is to understand that the injured person’s conduct is irrelevant to the consideration of the doctrine of aggravation of a preexisting condition. Negligence law generally calls for an apportionment of damages when a plaintiff’s antecedent negligence is “found not to contribute in any way to the original accident or injury, but to be a substantial contributing factor in increasing the harm which ensues.” Restatement (Second) of Torts, § 465 at 510–11, comment c. Courts recognize that a defendant whose acts aggravate a plaintiff’s preexisting condition is liable only for the amount of harm actually caused by the negligence.[ ] * * *

Finally, underpinning all of this is that most fundamental of risk allocators in the tort reparation system, the doctrine of proximate cause. * * *

We have sometimes melded proximate cause with foreseeability of unreasonable risk. * * *

We have been candid in New Jersey to see this doctrine, not so much as an expression of the mechanics of causation, but as an expression of line-drawing by courts and juries, an instrument of “overall fairness and sound public policy.”[ ] * * * [ ]

III

Each of these principles, then, has some application to this case. 3 Plaintiff obviously had a preexisting condition. It is alleged that she failed to minimize the damages that she might otherwise have sustained due to mistreatment. Such mistreatment may or may not have been the proximate cause of her ultimate condition.

But we must be careful in reassembling these strands of tort doctrine that none does double duty or obscures underlying threads. In particular, we must avoid the indiscriminate application of the doctrine of comparative negligence (with its fifty percent qualifier for recovery) when the doctrines of avoidable consequences or preexisting condition apply.

The doctrine of contributory negligence bars any recovery to the claimant whose negligent action or inaction before the defendant’s wrongdoing has been completed has contributed to cause actual invasion of plaintiff’s person or property. By contrast,

“[t]he doctrine of avoidable consequences comes into play at a later stage. Where the defendant has already committed an actionable wrong, whether tort or breach of contract, then this doctrine [avoidable consequences] limits the plaintiff’s recovery by disallowing only those items of damages which could reasonably have been averted * * * [.]” “[C]ontributory negligence is to be asserted as a complete defense, whereas the doctrine of avoidable consequences is not considered a defense at all, but merely a rule of damages by which certain particular items of loss may be excluded from consideration * * *.”

Hence, it would be the bitterest irony if the rule of comparative negligence, designed to ameliorate the harshness of contributory negligence, should serve to shut out any recovery to one who would otherwise have recovered under the law of contributory negligence. Put the other way, absent a comparative negligence act, it would have never been thought that “avoidable consequences” or “mitigation of damages” attributable to post-accident conduct of any claimant would have included a shutout of apportionable damages proximately caused by another’s negligence. * * *

* * *

In this context of post-injury conduct by a claimant, given the understandable complexity of concurrent causation, expressing mitigation of damages as a percentage of fault which reduces plaintiff’s damages may aid juries in their just apportionment of damages, provided that the jury understands that neither mitigation of damages nor avoidable consequences will bar the plaintiff from recovery if the defendant’s conduct was a substantial factor without which the ultimate condition would not have arisen.

* * * In the field of professional health care, given the difficulty of apportionment, sound public policy requires that the professional bear the burden of demonstrating the proper segregation of damages in the aggravation context.[ ] The same policy should apply to mitigation of damages.[ ] Hence, overall fairness requires that juries evaluating apportionment of damages attributable in substantial part to a faulty medical procedure be given understandable guidance about the use of evidence of post-treatment patient fault that will assist them in making a just apportionment of damages and the burden of persuasion on the issues. This is consistent with our general view that a defendant bear the burden of proving the causal link between a plaintiff’s unreasonable conduct and the extent of damages.[ ] Once that is established, it should be the “defendant who also has the burden of carving out that portion of the damages which is to be attributed to the plaintiff.”[ ]

IV

As noted, in this case the parties agree on certain fundamentals. The pre-treatment health habits of a patient are not to be considered as evidence of fault that would have otherwise been pled in bar to a claim of injury due to the professional misconduct of a health professional. This conclusion bespeaks the doctrine of the particularly susceptible victim or recognition that whatever the wisdom or folly of our life-styles, society, through its laws, has not yet imposed a normative life-style on its members; and, finally, it may reflect in part an aspect of that policy judgment that health care professionals have a special responsibility with respect to diseased patients.[ ]

This does not mean, however, that the patient’s poor health is irrelevant to the analysis of a claim for reparation. While the doctor may well take the patient as she found her, she cannot reverse the frames to make it appear that she was presented with a robust vascular condition; likewise, the physician cannot be expected to provide a guarantee against a cardiovascular incident. All that the law expects is that she not mistreat such a patient so as to become a proximate contributing cause to the ultimate vascular injury.

However, once the patient comes under the physician’s care, the law can justly expect the patient to cooperate with the health care provider in their mutual interests. Thus, it is not unfair to expect a patient to help avoid the consequences of the condition for which the physician is treating her. * * *

Hence, we approve in this context of post-treatment conduct submission to the jury of the question whether the just mitigation or apportionment of damages may be expressed in terms of the patient’s fault. If used, the numerical allocation of fault should be explained to the jury as a method of achieving the just apportionment of the damages based on their relative evaluation of each actor’s contribution to the end result—that the allocation is but an aspect of the doctrine of avoidable consequences or of mitigation of damages. In this context, plaintiff should not recover more than she could have reasonably avoided, but the patient’s fault will not be a bar to recovery except to the extent that her fault caused the damages.

An important caveat to that statement would be the qualification that implicitly flows from the fact that health care professionals bear the burden of proving that their mistreatment did not aggravate a preexisting condition: that the health care professional bear the burden of proving the damages that were avoidable.

Finally, before submitting the issue to the jury, a court should carefully scrutinize the evidence to see if there is a sound basis in the proofs for the assertion that the post-treatment conduct of the patient was indeed a significant cause of the increased damages. Given the short onset between the contraindicated surgery and the vascular incident here, plaintiff asserts that defendant did not present proof, to a reasonable degree of medical probability, that the plaintiff’s post-treatment conduct was a proximate cause of the resultant condition. Plaintiff asserts that the only evidence given to support the defense’s theory of proximate cause between plaintiff’s post-treatment health habits and her damages was her internist’s testimony regarding generalized studies showing that smoking increases vascular disease by fifty percent, and her vascular surgeon’s testimony that some physicians believe there is a relationship among diabetes, smoking, and vascular impairment. Such testimony did not address with any degree of medical probability a relationship between her smoking or not between May 17, 1983, and the plaintiff’s need for bypass surgery in July 1983. Defendant points to plaintiff’s failure to consult with her internist as a cause of her injury, but the instruction to the jury gave no guidance on whether this was to be considered as conduct that concurrently or subsequently caused her injuries.[ ]

V

We acknowledge that it is difficult to parse through these principles and policies in the course of an extended appeal. We can well imagine that in the ebb and flow of trial the lines are not easily drawn. There are regrettably no easy answers to these questions.

* * *

[The court noted the factual complexities of the case, and concluded that “the instructions to the jury in this case did not adequately separate or define the concepts that were relevant to the disposition of the plaintiff’s case.” The case was remanded for a new trial.]

Notes and Questions

1.Do you advocate applying contributory negligence, or comparative negligence (depending upon the jurisdiction), to situations such as that of Ostrowski? Such cases raise fundamental questions about the limits of medicine and the role of patients in their own illnesses. Can a smoker easily stop? Is it fair to bar his recovery when his smoking is not a simple, easily abandoned, choice? See Sawka v. Prokopowycz, 104 Mich.App. 829, 306 N.W.2d 354 (1981) , where the plaintiff sued the defendant for his failure to diagnose lung cancer. The court rejected the claim that the plaintiff’s continued smoking and failure to return for further examination as instructed were contributory negligence.

2.Should a doctor be able to argue that a patient’s negligent pre-treatment conduct as contributory negligence? See for example Cavnes v. Zabrerdac, 849 N.E.2d 526 (Indiana 2006) , where a patient being treated for severe asthma had an attack. She took several doses of her medication in the course of the morning before going to the hospital emergency room, where she went into cardiac arrest and died. Defendant argued that Peggy “improperly used her medications in excess of their prescribed doses, which probably aggravated her condition, and that Peggy unreasonably delayed seeking medical treatment and emergency room care, which decreased her chances of surviving.” The Court rejected the defendant’s arguments:

It is people who are sick or injured that most often seek medical attention. Many of these infirmities result, at least in part, from the patients’ own carelessness (e.g. negligent driving or other activities, failure to regularly exercise, unhealthy diet, smoking, etc.). To permit healthcare providers to assert their patients’ pre-treatment negligent conduct to support a contributory negligence defense would absolve such providers from tort responsibility in the event of medical negligence and thus operate to undermine substantially such providers’ duty of reasonable care.

3.If a patient continues to refuse to take steps to reduce his health care risks, over a period of time, he may be held liable in comparative negligence. In Striff v. Luke Medical Practitioners, 2010 WL 5296941 (Ohio App. 3 Dist. 2010) , the plaintiff Striff had a fatal heart attack. He suffered from coronary artery disease, and the defendants claimed that they followed the standard of care, but that “Striff was completely responsible for his medical condition due to his life-style choices and, more importantly, his failure to follow through with the recommendations and follow-up treatments ordered by Appellees. Mr. Striff was overweight, smoked a pack of cigarettes a day, and drank several alcoholic beverages every day. Mr. Striff also failed to obtain a lipid profile to measure his cholesterol and did not see a cardiologist, as he was instructed to do on many occasions.” The jury found that 100% of the negligence that caused Striff’s death was attributable to him, and the verdict was upheld on appeal.

4.See the reporters’ note on Restatement Torts, 3d, Apportionment of Liability, § 7, comment m, p. 83:

. . .  the best explanation of pre-presentment negligence is that the consequences of the plaintiff’s negligence—the medical condition requiring medical treatment—caused the very condition the defendant doctor undertook to treat so it would be unfair to allow the doctor to complain about that negligence.

5.Would you treat an overzealous jogger who had cardiac arrest while running in the same way as a chain smoking or obese sedentary patient? How much of your decision is based on your desire to punish the smoker or glutton for immoral or irresponsible behavior which may be virtually impossible to control? Blaming the victim, or scapegoating, is a frequent argument used by employers, insurers and the government to reduce obligations to insure, pay benefits, or, as in Ostrowski, to pay damages for patient injury. See Robert Schwartz, Life Style, Health Status, and Distributive Justice, 3 Health Matrix 195, 198 (1993) (“If all of those whose life style choices have health consequences were required to bear the full burden of those consequences, there would be few of us (and few diseases or injuries) that would not be implicated.”)

6.Providers are expected to consider the needs and limitations of their patients. Bryant v. Calantone, 286 N.J.Super. 362, 669 A.2d 286 (A.D.1996) . In Windisch v. Weiman, 161 A.D.2d 433, 555 N.Y.S.2d 731 (1990) , the court held that the failure of a physician to properly follow-up a patient, resulting in a missed diagnosis of lung cancer, may provide the basis for imposing liability even when the patient is partially responsible for the delay in diagnosis.

7.Contributory fault is typically invoked when a patient failed to follow a physician’s instructions after a procedure was performed, or while in the hospital. Musachia v. Rosman, 190 So.2d 47 (Fla.App.1966) (decedent left the hospital over the objections of, and contrary to the advice of, the defendants; and drank liquor and ignored instructions to eat only baby food. He then died from fecal peritonitis due to small perforations in the bowel, and his recovery was barred)

8.Almost all American jurisdictions have adopted comparative fault, simplifying the issue by eliminating the harsh all-or-nothing effect of contributory negligence. Courts in comparative fault jurisdictions are likely to be more willing to allow evidence of plaintiffs’ contributions to their injuries. See generally Victor Schwartz, Comparative Negligence (5th ed. 2010).

9.Assumption of the risk. The doctrine of assumption of the risk is a viable defense even in many comparative fault jurisdictions. In Schneider v. Revici, 817 F.2d 987, 995 (2d Cir.1987) , the Second Circuit considered whether a patient undergoing unconventional treatment for breast cancer after signing a consent form had waived all her rights to sue or assumed the risk of injury from the treatment. The court held that the consent form was not clear and unequivocal as a covenant not to sue, but that the doctrine of assumption of risk was available:

* * * we see no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment. While a patient should be encouraged to exercise care for his own safety, we believe that an informed decision to avoid surgery and conventional chemotherapy is within the patient’s right to “determine what shall be done with his own body,”[ ]

The court held that the jury could consider assumption of the risk as a total bar to recovery, based on the language of the signed consent form and the patient’s general awareness of the risks of treatment.

Assumption of the risk is rarely argued except in cases of obvious defects of which the patient should have been aware, such as hazards in the hospital room. See, e.g., Charrin v. Methodist Hospital, 432 S.W.2d 572 (Tex.Civ.App.1968) (plaintiff tripped over television cord in hospital room; she knew it was there, having previously pointed it out to the staff.) The problem of assumption of the risk, in the sense of a conscious explicit assumption of medical risks, blends into the issues of informed consent and waivers of liability, discussed in Chapter 4, supra.

Problem: The Difficult Patient

Alice Frost is profoundly obese. She is a smoker and drinks a bottle of gin a day. She works for the State as a disability counselor and her state health insurance coverage is excellent. She sees Dr. Wilson regularly. He has admonished her to stop smoking and cut down on her drinking, and to begin a program of exercise. He has also set up a series of monthly appointments with her to monitor her health. She fails to obtain a lipid profile to measure her cholesterol and never sees a cardiologist, even though Dr. Wilson has instructed her to do so on many occasions. She continues to smoke and drink. She also begins to miss her monthly appointments. Dr. Wilson has his nurse call her to remind her several times, but Alice never calls back. After six months of missed appointments, Alice has a heart attack and dies.

Can her estate sue Dr. Wilson?

1. V. CAUSATION PROBLEMS

Causation is often a major stumbling block for plaintiffs in complex medical malpractice cases. Plaintiffs have preexisting conditions, and it is hard to tell whether the negligent acts of the physician “caused” the bad outcome, or it would have happened in any event. Robins v. Garg, 276 Mich.App. 351, 741 N.W.2d 49 (Court of Appeals, Michigan, 2007) . Causation questions are usually left to the jury to decide. Causation is normally satisfied by a showing by substantial evidence that the injury of the plaintiff is a natural and probable consequence of the defendant’s negligence. Causation may be inferred from the facts of the case. Williams v. Daus, 114 S.W.3d 351 (Mo. App. 2003) .

Where a defendant’s acts have increased the risk of harm that later materializes, courts often look to the “relative risk—the ratio of the risk with the negligent act to the risk without negligence—to decide whether the negligent acts or omissions constitute a cause in fact of the harm.” Theofanis v. Sarrafi, 339 Ill.App.3d 460, 274 Ill.Dec. 242, 791 N.E.2d 38, 48 (1 Dist. 2003) . A finding of causation rapidly becomes more complicated in the typical malpractice case due to the presence of multiple defendants, often treating a patient over time.

Joint Tortfeasors. In the typical malpractice case in which the parties acted together to commit the wrong, or the parties’ acts, if independent, unite to cause a single injury, multiple defendants are considered joint rather than separate tortfeasors. In determining whether to assess liability jointly, the courts have considered factors such as whether each defendant has a similar duty; whether the same evidence will support an action against each; the indivisible nature of the plaintiff’s injury; and identity of the facts as to time, place or result. See Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 508 A.2d 1247 (1986) .

The adoption of comparative fault in almost all American jurisdictions means that once a defendant is joined, the trier of fact will have the job of apportioning damages among defendants in conformity with the particular standards of that jurisdiction. Most negligence cases end up in the hands of the jury as a result of this move to comparative fault.

What if a doctor fails to diagnose a patient’s problem, and subsequently another doctor is negligent in treating it? The first negligent treating doctor might be liable to the injured plaintiff for all foreseeable injuries resulting from the later negligent medical treatment of a second doctor. Two or more physicians who fail to make a proper diagnosis on successive occasions are joint tortfeasors under contribution statutes. Harvey v. Washington, 95 S.W.3d 93 (Mo. Banc 2003) (two causes can satisfy “but for” causation: kidney specialist’s failure to initiate dialysis treatment was sufficient to have caused patient’s death, as was another doctor’s failure to treat the patient’s infection.). See, e.g., Gilson v. Mitchell, 131 Ga.App. 321, 205 S.E.2d 421 (1974) (“ * * * if the separate and independent acts of negligence of several persons combine naturally and directly to produce a single indivisible injury, and a rational basis does not exist for an apportionment of damages, the actors are joint tortfeasors.”)

Where an existing injury is aggravated by malpractice, the innocent plaintiffs are not required to establish that share of expenses, pain, suffering, disability or impairment attributable solely to malpractice. The burden of proof shifts to the culpable defendant, who is responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment.

For the physician who knows that his patients see alternative practitioners, or who offers such treatments as an option, what are his or her liabilities? Joint and several liability is likely to hook the physician firmly if injury is the end result of a continuum of care that includes alternative practitioners. In Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn.1998) , the plaintiff was treated by physicians and a chiropractor. He died of pneumonia, which had not been diagnosed by any provider. The court held that “* * * the participation of all potentially responsible persons as parties in the original action would have resulted in a fuller and fairer presentation of the relevant evidence and would have enabled the jury to make a more informed and complete determination of liability.”

For a critical look at alternative and complementary medicines generally, see Christopher Wanjek, Bad Medicine: Misconceptions and Misuses Revealed, From Distance Healing to Vitamin O (2002).

Where only one of several defendants could have caused the plaintiff’s injuries, but the plaintiff cannot produce evidence as to which defendant is responsible, the courts have developed special rules to protect the obviously deserving plaintiff. Cases like Ybarra v. Spangard, supra, reflect judicial attempts to use doctrines like res ipsa loquitur to cover multiple defendant/uncertain proof situations. An equitable doctrine of burden shifting is derived from the exception in the Restatement (Second) of Torts, § 433B(3) (1965):

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each actor to prove that he has not caused the harm.

The reason for this burden shift is “ * * * the injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it impossible to prove which of them has caused the harm.” Id., comment f.