Most doctors have had patients who don't follow medical advice or take prescribed medications. If such non-compliance contributes to an injury that results in a malpractice suit, it can usually be introduced as evidence in the doctor's defense.

But suppose the patient's condition was caused, in part, by noncompliance with previous advice or treatment recommendations. Shouldn't that also be cited as evidence of the patient's "contributory negligence?"

While simple fairness might suggest that it should, most states don't allow defendant physicians to introduce evidence of pretreatment noncompliance to establish a patient's "comparative fault" in a malpractice case. The legal principle involved is that each doctor must take a patient as he finds him, regardless of previous treatment or compliance.

Betty Shinholster came to the ED at Annapolis Hospital in Wayne, MI, on April 7, 1995, and again three days later, complaining on both visits of dizziness and other symptoms. Emergency physician Dennis Adams examined her both times, found elevated blood pressure, and prescribed medication for it. Shinholster showed up again with the same symptoms on April 14. On that visit, she was examined by emergency physician Mary Ellen Flaherty, who discharged her with instructions to continue the blood pressure medication, and to see her own doctor. Two days later, Shinholster suffered a massive stroke. She remained in a coma for several months, then died at the age of 61.

Shinholster's husband, Johnnie, sued Adams and Flaherty for malpractice, and sued the hospital for vicarious liability as their employer. The suit accused the doctors of negligence for failing to recognize that Shinholster's dizziness had been evidence of transient ischemic attacks that often precede a full-blown stroke. After a trial, the jury found the defendants liable, and awarded Shinholster a total of $1.14 million.

But the jury also concluded that Betty Shinholster's own negligence—in failing to follow instructions from Adams and Flaherty—made her 20 percent responsible for her own death. On that basis, the trial judge reduced the total award to $916,480. (That sum was later reduced further because of the state's cap on noneconomic damages.)

The defendants appealed the damage award, claiming that the judge had been wrong in limiting the jury's consideration of Shinholster's "comparative fault" only to the period following her first ED visit. They cited evidence that her own internist had prescribed blood pressure medication at least a year before the first ED visit and that Shinholster hadn't been taking it regularly. That failure was a contributing cause of her fatal stroke, they claimed. The appellate court rejected that argument, and affirmed the trial judge's ruling.

The state Supreme Court overrules

Last year, however, Michigan's Supreme Court reversed that decision, citing a law passed by the state legislature as part of a tort reform package in 1986. According to the high court's interpretation, that law is "unambiguous" in requiring the jury to assess "the total fault of all persons that contributed to the death or injury, including each plaintiff."

Based on that law, the high court ruled that a jury in a malpractice case must consider a plaintiff's pretreatment negligence if there's a question of whether it "constituted 'a proximate cause' . . . of the plaintiff's injury and damages." Since the trial judge had ruled that the jury could not consider Shinholster's pretreatment contributory negligence, the court held that the defendants had not received a fair trial with regard to the apportionment of damages.