517. Affirmative Defense - Patient's Duty to Provide for His or Her Own Well-Being

A patient must use reasonable care to provide for his or her own well-being. This includes a responsibility to [follow a [insert type of medical practitioner]'s instructions] [seek medical assistance] when a reasonable person in the same situation would do so.

[Name of defendant] claims that [name of plaintiff]'s harm was caused, in whole or in part, by [name of plaintiff]'s negligence in failing to [follow [name of defendant]'s instructions] [seek medical assistance]. To succeed, [name of defendant] must prove both of the following:

1. That [name of plaintiff] did not use reasonable care in [following [name of defendant]'s instructions] [seeking medical assistance]; and

2. That [name of plaintiff]'s failure to [follow [name of defendant]'s instructions] [seek medical assistance] was a substantial factor in causing [his/her] harm.

Directions for Use

It is error to give this type of instruction absent evidence that the patient was contributorily negligent. (LeMons v. Regents of Univ. of California (1978) 21 Cal.3d 869, 874 [148 Cal.Rptr. 355, 582 P.2d 946].) At least one court has held that it is error to give this kind of instruction absent expert testimony that the plaintiff was negligent. (Bolen v. Woo (1979) 96 Cal.App.3d 944, 952 [158 Cal.Rptr. 454].)

Read this instruction in conjunction with basic comparative fault and damages instructions (CACI Nos. 405, 406, and 407).

Sources and Authority

The defendant has the burden of proving that the plaintiff was contributorily negligent and that this negligence was a cause of the harm. (Maertins v. Kaiser Foundation Hospitals (1958) 162 Cal.App.2d 661, 666-667 [328 P.2d 494].)

Mere refusal to follow instructions is not sufficient to show contributory negligence or failure to mitigate damages. The failure must e unreasonable. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 422-423 [175 P.2d 607].)

The issues of contributory negligence and mitigation of damages can become confused in cases involving a patient's failure to follow instructions. (LeMons, supra, 21 Cal.3d at pp. 874-875.) However, because contributory negligence is no longer a complete bar to recovery, the distinction may be less critical today.

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1382, pp. 852-853

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.61 (Matthew Bender)

California Tort Guide (Cont.Ed.Bar 1996) § 9.66

25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.14 (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons (Matthew Bender)

(New September 2003)