Medical Malpractice: Can Negligent Providers of Medical Care Defend Themselves by the Patient’s Comparative Negligence?

P.W. v. Children’s Hospital Colorado, — P.3d — (Colo. 2016), 2016 WL 297287

This new decision of the Colorado Supreme Court provides a clear restatement of the principle that denies a tort defendant the comparative negligence and assumption of risk defenses that purport to shift to the victim the duty to eliminate or reduce the risk that the defendant was obligated to guard against. This principle has important implications for medical malpractice law, and the case at bar unfolds one of them.

In that case, the defendant hospital admitted a known suicidal patient to its secure mental health unit and placed him under high suicide-risk precautions. The hospital’s staff failed to follow those precautions by allowing the patient to be alone in a bathroom for twenty minutes. During these twenty minutes, the patient hanged himself with his scrub pants and suffered a devastating anoxic brain injury.

In the ensuing malpractice suit, filed by the patient’s father, the trial court granted the plaintiff’s motion for summary judgment and dismissed the hospital’s comparative negligence and assumption of risk defenses. The hospital’s appeals brought the case to the Colorado Supreme Court that ruled for the plaintiff. The Court decided that neither of the two defenses was available to the hospital because the hospital had a duty to protect the patient against his own suicide.

In the Court’s words,

“If the defendant’s duty to protect the plaintiff contemplates, encompasses, and thereby subsumes the plaintiff’s duty not to act in a certain way, then the plaintiff cannot be faulted for acting in that way. …. When a hospital admits a person into its custody who the hospital knows is actively suicidal, and when the admission is for the purpose of preventing that person’s self-destructive behavior, the hospital assumes a duty to use reasonable care in preventing the patient from engaging in such behavior. …. [T]his duty subsumes any fault attributable to the plaintiff for harm suffered as a result of those self-destructive acts.”

This was a first-impression decision that set a precedent for Colorado law. In making this decision, the Court relied on precedents from other states that included an important medical-malpractice decision of the Minnesota Supreme Court, Tomfohr v. Mayo Foundation, 450 N.W.2d 121 (Minn. 1990).

The “overlapping duty” test, followed by this and many other courts across the United States, is not always easy to apply. Courts applying this test refuse to discount the negligent defendant’s liability by the victim’s comparative negligence upon finding that the defendant’s duty to the victim included an obligation to prevent the specific self-destructive behavior that injured the victim. It is, however, the plaintiff’s burden to prove that such overlapping duty existed. Consider a psychiatric patient who doesn’t swallow the antidepressants his doctors give him. Instead, he hides them in his mouth and then throws them away. Under any such scenario, the plaintiff would only be able to negate the defendant’s comparative negligence defense if he shows that the defendant had an obligation to verify the pill’s swallowing by the patient. The defendant’s general duty as a provider of psychiatric care will not always include this specific obligation.