The Limited Role of Comparative Fault in NH Medical Negligence Cases

The Limited Role of Comparative Fault in New Hampshire Medical Negligence Cases
Kevin F. Dugan and Holly B. Haines

I. Introduction:
Medical negligence defendants often seek to deflect blame by alleging comparative fault on the part of the patient. Under settled New Hampshire law, such claims should often be dismissed by the trial judge and withdrawn from the jury’s consideration. The following is a general review of comparative fault law in New Hampshire and elsewhere as it applies in the medical malpractice context.

II Discussion:
A. Comparative Fault:
Comparative fault is an affirmative defense and the defendant has the burden of proving each element of the claim.[1] In order to establish legal fault on the part of the patient, a defendant must prove that the patient owed a duty of care, that she acted unreasonably; and that her unreasonable conduct was a proximate cause of some harm.[2]
Because of the danger of an unfair assessment of fault, our Supreme Court has cautioned that “some tangible evidence of the plaintiff’s comparative fault must be introduced before the question can be submitted to the jury.”[3] Evidence of patient negligence cannot be created by asking the jury to disbelieve the patient’s testimony.[4] “In the absence of evidence, the mere possibility, which exists in every case, that the plaintiff may have been guilty of negligence, cannot be made the basis of a ruling against her.”[5]

B. Patient’s Duty of Care:
Whether a particular duty exists is a question of law to be determined by the Court.[6] Our Supreme Court has recognized that a special relationship between the parties is highly significant in establishing the existence and the scope of their duties.[7] The physician-patient relationship is an example of a special relationship:

The physician-patient relationship differs substantially from that
of the ordinary plaintiff and defendant. Due to the great disparity
in medical knowledge between doctor and patient, the patient is
entitled to rely upon the assurances made by the doctor and,
generally, need not seek the opinions and services of others.[8]

In its landmark decision inHalverson v. Zimmerman,[9] the North Dakota Supreme Court arrived at the same conclusion:

A patient has a right to rely on the professional skill of his physician,
without calling others in to determine whether he really possesses such
skill or not. The patient is not bound to call in other physicians, unless
he becomes fully aware that the physician has not been, and is not,
giving him proper treatment.[10]

This view is shared by many other courts.[11]

In New Hampshire, our Supreme Court has recognized that a special relationship may justify heightened reliance on the part of one party.[12] The Court has also specifically held that the special nature of the physician-patient relationship entitles the patient to rely on her doctor’s assurances. In McKee v. Riordan[13], the Court acknowledged “thenecessary reliance of the layman on the professional in his field and the mystery to the layman of the professional’s work.”[14] One year later, in Brown v. Mary Hitchcock Memorial Hospital[15], the Court held that a patient reasonably relied upon the assurances of her doctors in failing to discover her cause of action until after the limitations period had run.[16]

The special relationship between doctor and patient has frequently caused courts to limit the legal duties to which the patient will be held. The general rule is set forth in the seminal Halverson decision:

It is not part of the duties of a patient to distrust his physician,
or to set his judgment against that of the expert whom he has
employed to treat him, or to appeal to other physicians to
ascertain if the physician is performing his duty properly.[17]

Accordingly, “it would indeed require an unusual state of facts to render a person who is possessed of no medical skill guilty of contributory negligence because he accepts the word of his physician and trusts in the efficacy of the treatment prescribed by him.”[18]

The case of Fairchild v. Brian[19] is particularly instructive. In Fairchild, the plaintiff was told by the defendant that she had a cataract in her right eye. She was told that if it worsened it could be removed surgically. Following the visit, the blurring in her right eye increasingly got worse. Finally, nearly two and a half months after the cataract diagnosis, she could no longer see out of the eye. When she saw a different doctor, she was told that she did not have a cataract; she in fact had a detached retina which required immediate surgery.[20]

The defendants claimed that the patient was contributorily negligent in failing to seek proper medical attention when her vision worsened after the cataract diagnosis. The court held that she was not at fault “because she had been reassured as to what her trouble was and had been led to believe that a qualified medical doctor had diagnosed her problem to be cataract which could become progressively worse and eventually be corrected by surgery.”[21]

Courts generally agree that comparative fault has a narrow application in the medical negligence context. For instance, the Minnesota Supreme Court has recognized that “the availability of a contributory negligence defense in a malpractice case is limited because of the disparity in medical knowledge between the patient and his doctor and because of the patient’s right to rely on the doctor’s knowledge and skill in the course of medical treatment.”[22] Similarly, the District of Columbia’s highest court has remarked that “In the context of medical malpractice, the superior knowledge of the doctor with his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the defense, i.e., knowledge and appreciation of the risk.”[23] The bottom line is that “a patient’s duty to exercise ordinary care in a patient-doctor relationship is extremely limited. ‘[T]he very patient-doctor relation assumes trust and confidence on the part of the patient and would require an unusual set of facts to render a patient guilty of contributory negligence when the patient relies on the doctor.’”[24]

The decisions of our Supreme Court demonstrate that a plaintiff’s legal duties are often narrowly circumscribed. In Thibeault v. Campbell[25], the Court faced the question whether a plaintiff’s failure to wear a seat belt could be considered comparative fault. The Court concluded that a plaintiff has no legal duty to wear a seat belt because the accident-causing negligence of another driver is not a readily foreseeable danger.[26] In support of this determination, the Court quoted from an earlier case which held that “[i]t is not negligent for one to assume that another will do his duty when there is no occasion to assume otherwise.”[27] The mere possibility that another might act negligently does not make one responsible for anticipating the other party’s negligence and guarding against it.[28] If a plaintiff has no legal duty to do something as simple as fasten a seat belt in response to the very real danger of a negligent driver causing an accident, it follows that a patient cannot have a legal duty to second-guess her physician on the more remote possibility that he was wrong in his unequivocal diagnosis.

In a different context, our Supreme Court held that reasonable reliance on the part of a plaintiff may absolve him of any liability for contributory negligence. InCurrier v. Grossman’s of New Hampshire, Inc.[29], the Court determined that a plaintiff could not be held contributorily negligent if he reasonably relied on a hand signal from the other driver.[30] If reliance on the signals given by a stranger in traffic can absolve a driver of comparative fault, a patient’s reliance on her doctor must do the same.[31]

C. Causation:
Even in those limited circumstances where a patient owed a legal duty of care and arguably acted unreasonably, a defendant claiming comparative fault in a medical negligence case still has the burden of proving that the harm claimed by the plaintiff probably would have been avoided had she acted reasonably.[32]

In Brann v. Exeter Clinic, Inc.[33], the plaintiff claimed that the defendant failed to timely diagnose and treat a mole that later became malignant and took her husband’s life. Despite the fact that the defendants did not raise comparative fault as a defense in the pleadings or request an instruction at trial, the jury apportioned 51% of the fault to the decedent. On appeal, the Supreme Court held that the trial court erred in submitting the issue to the jury because “[t]here is no expert testimony in the record from which a jury could reasonably infer that it was more likely than not that the decedent’s delay in seeking treatment caused his death.”[34] Specifically, the court observed that “[n]one of the expert witnesses testified as to the likelihood that the decedent’s cancer would have taken a different course if he had consulted a doctor [sooner].”[35]
D. Timing of Plaintiff’s Conduct:

To constitute comparative negligence, the plaintiff’s fault must be simultaneous and cooperating with the fault of the defendant, it must have entered into the creation of the cause of action, and it must have been an element in the transaction which constituted it.[36] Thus, plaintiff conduct that takes place either before or after the defendant’s negligence cannot be the basis for a comparative fault claim.

It is well-settled that “in a medical malpractice action, the defense of contributory negligence 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 or when the patient’s conduct contributes to an illness or condition for which the patient seeks the medical attention, care, or treatment on which a subsequent medical malpractice claim is based.”[37] On the other hand, “[w]here the fault of the patient was subsequent to the fault of the physician and merely aggravated the injury inflicted by the physician, it only affects the amount of damages recoverable by the patient.”[38]

III. Conclusion:

The concept of comparative fault can be difficult for juries to apply as is demonstrated by recent cases in which plaintiff’s recoveries were cut nearly in half or barred altogether by an apportionment of fault that was subsequently found by our Supreme Court to be legally unfounded.[39] It is critical, therefore, that plaintiffs’ counsel carefully scrutinize such claims, especially in the medical negligence context, and move to strike those that do not meet the narrow criteria for presentation to the jury.


[1]. R.S.A. 507:7-d; See Townsend v. Legere, 141 N.H. 593, 594 (1997) (explaining defendant’s burden of proof in comparative fault case).
[2]. See Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304 (1992).
[3]. Townsend, supra note 1, 141 N.H. at 594.
[4]. Id., 141 N.H. at 595.
[5]. Id., 141 N.H. at 596.
[6]. Walls v. Oxford Management Co., 137 N.H. 653, 656 (1993).
[7]. Id. at 656.
[8]. Lawrence v. Wirth, 309 S.E.2d 315, 317 (Va. 1983).
[9]. 232 N.W. 754 (N.D. 1930).
[10]. Id. at 759.
[11]. See Kelly v. Carroll, 219 P.2d 79, 90 (Wash. 1950); Sanchez v. S. Hoover Hosp., 553 P.2d 1129, 1135 (Cal. 1976) (“the patient is fully entitled to rely upon the physician’s professional skill and judgment while under his care, and has little choice but to do so.”); Owens v. Stokoe, 485 N.E.2d 537, 540 (Ill.App. 1985); Ware v. Gifford Memorial Hospital, 664 F. Supp. 169, 171 (D.Vt 1987); Mikkelsen v. Haslam, 764 P.2d 1384, 1388 (Utah.App. 1988); DiLeo v. Nugent, 592 A.2d 1126, 1133 (Md.App. 1991);Pedersen v. Zielski, 822 P.2d 903, 909 (Alaska 1991) (“The physician-patient relationship is one of trust. Because the patient lacks the physician’s expertise, the patient must rely on the physician for virtually all information about the patient’s treatment and health.”); Brown v. Dibbell, 220 582 N.W.2d 134, 138 (Wis. Ct. App. 1998) aff’d, 595 N.W.2d 358 (Wis. 1999);Breyne v. Potter, 574 S.E.2d 916, 920 (Ga.App. 2002) (“Patients are entitled to rely on their doctors’ diagnoses in deciding a course of treatment.”);Hardi v. Mezzanotte, 818 A.2d 974, 980 (D.C. 2003) (“The nature of the physician-patient relationship requires the patient to rely on the knowledge and skill of the doctor. At the stage where the physician is providing a diagnosis and advice for the patient’s medical care, the patient can not be expected to know that the doctor’s actions might be negligent and result in harm or to question them.”);Amburgey v. United States, 733 F.3d 633, 640 (6th Cir. 2013) (“‘patients may reasonably rely on assurances by physicians’ with respect to injuries and their causes”).
[12]. See Williams v. O’Brien, 140 N.H. 595, 599 (1995).
[13]. 116 N.H. 729 (1976).
[14]. Id. at 730-31(emphasis added).
[15]. 117 NH 739 (1977).
[16]. Id. at 744.
[17]. Halverson, 232 N.W. at 759. See Santoni v. Moodie, 452 A.2d 1223, 1228 (Md.App. 1982) (quoting Halverson); Simmons v. Urquhart, 664 A.2d 27, 33 (Md.App. 1995)(“a patient maintains no duty to either question by himself or get a second opinion regarding medical advice given to him by his physician.”).
[18]. Halverson at 759. See Santoni, 452 A.2d at 1228 (quoting Halverson); Mikkelsen, 764 P.2d at 1388 (“It is not contributory negligence to follow the advice of a physician without distrusting the physician and appealing to other physicians to check the opinion.”).
[19]. 354 So.2d 675 (La.App. 1977).
[20]. Id. at 677.
[21]. Id.
[22].Martineau v. Nelson, 247 N.W.2d 409, 415 (Minn. 1976).
[23]. Morrison v. MacNamara, 407 A.2d 555, 567–68 (D.C30.1979).
[24].Hofflander v. St. Catherine’s Hosp., Inc., 664 N.W.2d 545, 583 (Wis. 2003) (Abrahamson, C.J. concurring).
[25]. 136 N.H. 698 (1993).
[26]. Id. at 701.
[27]. Id. at 700-01(quoting Piateck v. Swindell, 84 N.H. 402, 403 (1930)).
[28]. Id. at 701.
[29]. 107 N.H. 159 (1966).
[30]. Id. at 161. See Williams, 140 N.H. at 598.
[31]. See McKee, 116 N.H. at 730-31(characterizing layman’s reliance on professional as not only reasonable, but necessary).
[32].See Brann v. Exeter Clinic, Inc., 127 N.H. 155, 159 (1985).
[33]. Supra note 32.
[34]. Id., 127 N.H. at 159.
[35]. Id. See also Hoffart v. Hodge, 567 N.W.2d 600, 609 (Neb.App. 1997)(“Without evidence to provide some basis for a jury to determine the impact of Lemon’s not returning in January on her ultimate chances of survival, her failure to return in January should not have been submitted to the jury as evidence of contributory negligence.”)
[36]. Halverson, 232 N.W. at 757.
[37]. Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178, 186-87 (Neb. 1990).
[38]. Halvorsen, 232 N.W. at 757. See also Flynn v. Stearns, 145 A.2d 33, 37 (N.J.App. 1958); Blair v. Eblen, 461 S.W.2d 370, 372 (Ky. 1970); Bird v. Pritchard, 291 N.E.2d 769, 771 (Ohio App. 1973); Sendejar v. Alice Physicians & Surgeons Hospital, Inc., 555 S.W.2d 879, 885 (Tx.App. 1977); Lawrence, supra note 6, 309 S.E.2d at 317; Forsberg v. Volkswagen of America, Inc., 769 F.Supp. 33, 36 (D.N.H. 1990)(duty to mitigate damages has been applied in New Hampshire only to a plaintiff’s acts performed subsequent to the event giving rise to her tort claim).
[39]. See Townsend, supra note 1 (40% comparative fault reversed); Brann supra note 32 (51% comparative fault reversed).