Ostrowski v. Azzar

Facts

OSTROWSKI V. AZZARA

545 A.2d 148 (1988)

NATURE OF THE CASE: Ostrowski (P) appealed from an affirmation of a judgment in favor of Azzara (D), in P's malpractice action.

FACTS: 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. P had long suffered from diabetes attributable to her smoking and to her failure to adhere closely to her diet. Diabetic patients often have circulatory problems. P had been a heavy smoker and an insulin-dependent diabetic for twenty years. D is a doctor of podiatric medicine. P had been referred to D. P presented a sore left big toe, which had troubled her for approximately one month, and calluses. P 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. P had hypertension and was taking a diuretic for this condition. There was redness in P's big toe and elongated and incurvated toenails. Diminished pulses on her foot indicated decreased blood supply to that area, as well as decreased circulation and impaired vascular status. D made a diagnosis of onychomycosis and formulated a plan of treatment to debride (trim) the incurvated nail. Since P had informed her of a high blood sugar level, D ordered a fasting blood sugar test and a urinalysis; she also noted that a vascular examination should be considered for the following week if P showed no improvement. P's blood sugar was high, with a reading of 306, and urinalysis results also indicated it was above normal. D concluded that P had peripheral vascular disease, poor circulation, and diabetes with a very high sugar elevation. She explained the importance of better sugar maintenance and that a complication of peripheral vascular disease and diabetes is an increased risk of losing a limb if the diabetes is not controlled. P saw her internist and that the internist had increased her insulin and told her to return to D for further treatment. P lied and had not seen the internist. A finger-stick glucose test administered to measure P's nonfasting blood sugar yielded a reading of 175. D's proposed course of treatment was to avulse or remove, all or a portion of the toenail. D informed P of both the risks and complications of the procedure, including non-healing and loss of limb, as well as the risks involved with not treating the toe. P executed a consent form and the nail was cut out. P saw her internist four additional times and he felt the toe was much improved. P also saw D. The toe was healing slowly. P continued to smoke despite advice to the contrary. Her internist testified that smoking accelerates and aggravates the 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. P's toe became more painful and discolored. P had to have bypass surgery to prevent the loss of the extremity. She had to have two additional bypass surgeries which, in the opinion of her treating vascular surgeon, directly and proximately resulted from the unnecessary toenail removal procedure. 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. P sued D for malpractice. D showed that P had smoked cigarettes and had failed to maintain her weight, diet, and blood sugar at acceptable levels. The court allowed P's pre-treatment health habits to go to the jury on the issue of proximate cause. D elicited admissions from Ps 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. No medical expert for either side testified that P's post-treatment habits could have caused her need for bypass surgery six weeks after D's toenail removal. P argued that the court wrongly permitted this evidence to be considered on the issue of comparative negligence that could bar recovery rather than reduce her damages. The jury found that D acted negligently but found P’s fault to be 51% and thus P would not recover. The appeals court affirmed. P appealed. Since the trial, P's left leg has been amputated above the knee.

ISSUE In the field of professional health care, given the difficulty of apportionment, does sound public policy require that the professional bear the burden of demonstrating the proper segregation of damages in the aggravation context?

RULE OF LAW: 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.

HOLDING AND DECISION: (O'Hern, J.) In the field of professional health care, given the difficulty of apportionment, does sound public policy require that the professional bear the burden of demonstrating the proper segregation of damages in the aggravation context? Yes. The concepts of avoidable consequences, the particularly susceptible victim, aggravation of a preexisting condition, comparative negligence, and proximate cause each play a part. Comparative negligence is a legislative amelioration of the perceived harshness of the common-law doctrine of contributory negligence. The bar is presented when the plaintiff's fault contributed to the accident. 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. The main difference is in pre-incident conduct vs. post-incident conduct. Avoidable consequences, then, normally comes into action when the injured party's carelessness occurs after the defendant's legal wrong has been committed. In some cases, carelessness that aggravates an injury (although not causing it) may precede the injury itself. Contributory negligence, however, comes into action when the injured party's carelessness occurs before the defendant's wrong has been committed or concurrently with it. The doctrine of the particularly susceptible victim comes into play as 'defendant 'must take the plaintiff as he finds him.'' It is ameliorated by the doctrine of aggravation of a preexisting condition. A defendant whose acts aggravate a plaintiff's preexisting condition is liable only for the amount of harm actually caused by the negligence. Mix all this together and you are left with the determination of proximate causation. Proximate cause in part is determined by the foreseeability of an unreasonable risk. P must first prove that D's conduct constituted a cause in fact of his injuries and loss. Then the issues of whether D’s acts were a substantial factor and how foreseeable were the results from those acts come into play to determine proximate cause. P had a preexisting condition. P also 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. 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 conditions 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 causing an actual invasion of the plaintiff's person or property. The doctrine of avoidable consequences limits the plaintiff's recovery by disallowing only those items of damages that could reasonably have been averted. Contributory 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. The analysis of what bars recovery or what diminishes recovery is a matter of degree. Post-operative conduct can be so extreme that it effectively bars any recovery as well. The confusion between the existence of a cause of action and the diminution of damages has been the result of the melding of these principles in some jurisdictions under the Uniform Comparative Fault Act (U.C.F.A.). The U.C.F.A. states that such post-event fault 'diminishes proportionately the amount awarded as compensatory damages * * * but does not bar recovery.' The Act, therefore, covers the concept of avoidable consequences and provides that for a particular injury that could have been avoided by the plaintiff or for the diminution of damages that he could have affected by the exercise of reasonable care, the amount will be diminished proportionately according to the comparative fault of the parties.' 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. A defendant bears the burden of proving the causal link between a plaintiff's unreasonable conduct and the extent of damages. The parties agree that the pre-treatment health habits of a patient are not to be considered as evidence of fault that would have otherwise been pled in a bar to a claim of injury due to the professional misconduct of a health professional. Even so, the pre-event health of the patient cannot be ignored or even divorced from the actual results obtained. The law can justly expect the patient to cooperate with the health care provider in their mutual interests. P asserts that D did not present proof, to a reasonable degree of medical probability, that her post-treatment conduct was a proximate cause of the resultant condition. P asserts that the only evidence given to support D'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. This 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. On retrial, this issue must be carefully monitored by the trial court as to the proofs presented by each side. The instructions to the jury did not adequately separate or define the concepts that were relevant to the disposition of P's case. The instructions given had the capacity to bring about an unjust result, i.e., one that would not have been reached at common law since neither the doctrine of mitigation of damages nor of avoidable consequences would have caused an injured plaintiff to lose any recovery were the patient responsible only for a portion of the resulting damages. Reversed and remanded. 

LEGAL ANALYSIS: We bolded additional rules of law in the holding. 

This case severely limited and circumscribed the defense strategy of alleging comparative negligence by the patient. Doctors, not patients have the burden of proving what if any percentage causation from a pre-existing disease can be deducted from their damage share. 

This case also places a burden on the plaintiff that she can be expected to cooperate with post-operation instructions. 

Contributory or comparative negligence is generally not applicable to a patient’s recovery mainly because the doctor also takes the patient as she finds her. But then the issue of aggravation comes into play as the doctor can only be responsible for an increased level of harm from the patient’s present state upon starting treatment. 

Mitigation of damages is a post-event determination. 

Here is the crux of the holding: When there are serious pre-event health conditions and those pre-event health conditions may also have an effect on the mitigation of damages there must be expert proof as to their contribution to the damages suffered by the plaintiff. 

Here P’s inability to stop smoking and her diabetes and weight problems were both pre and post-condition events. D must come in with expert testimony to show how P’s standard of living essentially aggravated what should have occurred had she stopped her bad habits. D can assume that P would cooperate with post-operative instructions and when she doesn’t, D can use that against P to mitigate any damages liability. 

Here is what we feel is highly relevant: D made a recommendation for treatment based on the assumption that P would cooperate, which P did not do. The real issue to us is, would D have made the recommendation if she knew that P would not cooperate, or must D take the possibility of non-cooperation into account as well in making her recommendation? This brings into focus the ability of people to quit smoking, stop bad eating habits, and exercise. Common sense tells you that D should have refused to treat P or even accept her as a patient because you are going to get sued as the chances of cure are extremely remote. This brings into focus another issue about helping people with extreme health conditions. 

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Issues

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Holding and Decision

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