Cobo v. Raba
No. COA95-170
(Filed 18 February 1997)
1. Physicians, Surgeons, and Other Health Care
Professionals § 120 (NCI4th)-- medical malpractice -- psychiatrist
-- contributory negligence
The trial court erred in a negligence action against a psychiatrist by
not instructing the jury on the issue of plaintiff Michael Cobo's contributory
negligence where the action claimed misdiagnosis and negligent treatment
and there was evidence that Michael Cobo's conduct during the time he
was being treated by the defendant joined simultaneously with the negligent
treatment of the defendant to cause Cobo's injuries. Contributory negligence
must be submitted to the jury when the trial court submits only one issue
with respect to multiple claims of negligence and defendant's contentions
concerning contributory negligence would be inappropriate as to one claim
but may not be inappropriate as to another. Further, there was evidence
that Cobo had refused to pursue a suggested course of treatment involving
medicine and requested that defendant take no notes during the sessions.
Am Jur 2d, Negligence §§ 846, 853, 1108.
2. Limitations,
Repose, and Laches § 24 (NCI4th)-- psychiatric malpractice -- statute
of limitations -- continued course of treatment
The continuing course of treatment doctrine was applicable to a malpractice
claim against a psychiatrist where plaintiff began his treatment in 1980,
the sessions after 1986 primarily dealt with plaintiff's newly diagnosed
HIV status, the doctor-patient relationship terminated in 1988, and defendant
contended that the three-year statute of limitations of N.C.G.S. § 1-15(c)
barred any actions arising out of treatment rendered before 1986. Defendant
continued to treat plaintiff after 1986 for conditions that plaintiff
alleged were caused by defendant's negligence before 1986 and the treatment
did not change in that plaintiff continued to meet with defendant four
times a week to discuss his problems and to learn how to control and
manage those problems.
Am Jur 2d, Physicians, Surgeons, and Other Healers § 320.
Judge McGEE dissenting in part and concurring in part.
NO. COA95-170
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 1997
MICHAEL COBO and VIRGINIA COBO
v.
ERNEST A. RABA, M.D.
Appeal by defendant from judgment entered 15 June 1994 in Durham County
Superior Court by Judge Henry W. Hight, Jr. Heard in the Court of Appeals
14 November 1995.
Maxwell, Freeman & Bowman, P.A., by James B. Maxwell, for plaintiff-appellees.
Anderson, Broadfoot, Johnson, Pittman & Lawrence, by Lee B. Johnson,
and Ragsdale, Liggett & Foley, by George R. Ragsdale and Kristin
K. Eldridge, for defendant-appellant.
GREENE, Judge.
Ernest Raba (defendant) appeals a judgment entered against him in the
amount of $850,000 after a jury found that Michael Cobo (Cobo) was injured
by defendant's negligence.
Defendant is a psychiatrist practicing in the Durham, North Carolina
area. Cobo began to see defendant as a patient when Cobo moved to Durham
to accept a job at Duke Medical School. Cobo had previously been diagnosed
and treated for depression during medical school and during his residency
in Miami. During treatment for depression in Miami, Cobo had been treated
with an antidepressant drug which produced adverse side effects. In late
1980 Cobo began a course of treatment with defendant who diagnosed Cobo
as suffering from chronic depression. The treatment consisted of psychoanalysis
four times a week which continued until December 1986, when Cobo tested
positive for HIV.
Cobo told defendant that he did not wish to be treated with medication
because his previous treatment with medication had "affected him
badly" and had been unhelpful. Further, during the initial sessions
defendant did not take notes pursuant to Cobo's request. Cobo was worried
about protecting his identity and keeping the treatment a secret.
During his time in psychoanalysis with defendant, Cobo's depression became
worse, which negatively affected his marriage, relationships with co-workers,
and his job to the point that he was eventually removed from Duke's tenure
track. Beginning in 1982 or 1983, he increased his abuse of alcohol and
his use of marijuana, which he had begun using before seeking treatment
from defendant. In 1981 Cobo began having sex with males "on a monthly
basis," including sex with male prostitutes. Cobo had sex with other
men before he began seeing defendant, but only infrequently. Defendant
advised Cobo that he "was making some very dangerous choices [about
sexual partners and homosexual activity] and recommended that they stop," and
talked to Cobo about the risk of sexually transmitted diseases.
After Cobo was diagnosed with HIV, defendant began to treat him in a
more supportive manner, offering more practical feedback and suggestions
on ways to deal with his HIV status, including getting medical care,
his substance abuse and how to tell his wife. After being diagnosed with
HIV, defendant prescribed a medication for Cobo to treat his anxiety
as well as depression and continued to see defendant four times a week.
In December 1988 the doctor-patient relationship between Cobo and defendant
was terminated and Cobo began seeing another psychiatrist who prescribed
an antidepressant medication. Once the medication took effect, Cobo's
depression improved.
Dr. John Monroe, Jr., an expert in the field of psychiatry, testified
that "major depression," from which Cobo was suffering, was
a "biologic disregulation" that has to do with "chemical
imbalances."
Cobo and his wife Virginia Cobo (collectively plaintiffs) filed a complaint
against defendant seeking damages and alleging misdiagnosis and negligent
treatment. Plaintiffs' complaint also alleged that "early on in
the treatment" defendant "discouraged the use of any medications" and "failed
to prescribe appropriate medications," continued to treat Cobo with
psychotherapy when he knew or should have known that it was less effective
than other methods, including prescribing medications, and defendant "failed
to keep notes on his sessions with [Cobo] in order to follow the course
and effect, or lack thereof, of his therapy."
Defendant claimed as affirmative defenses that Cobo was contributorily
negligent and that the claims for acts occurring prior to December 1986
were barred by the statute of limitations.
Defendant's request that the trial court instruct the jury on contributory
negligence was denied. Defendant also requested that the trial court
instruct the jury on the statute of limitations, contending that all
claims arising from conduct occurring before December 1986 were barred
because after plaintiff was diagnosed as HIV positive, defendant's treatment
of plaintiff was "completely different." The trial court denied
this request as well. The trial court submitted a single issue of negligence
to the jury ("Was the plaintiff . . . injured by the negligence
of the defendant") and instructed them to answer the issue "yes" if
they determined that Cobo had met his burden of proving either negligent
diagnosis or negligent treatment.
_______________________
The issues are whether (I) an instruction on contributory negligence
should have been submitted to the jury; and (II) all claims relating
to conduct occurring before December 1986 are barred by the statute of
limitations.
I
The trial court must instruct the jury on a claim or defense if there
is substantial evidence, when viewed in the light most favorable to the
proponent, of the claim or defense. Dixon v. Taylor, 111
N.C. App. 97, 103, 431 S.E.2d 778, 781 (1993); see Holtman v. Reese,
119 N.C. App. 747, 750, 460 S.E.2d 338, 341 (1995). Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. State v. Wheeler, 122 N.C. App.
653, 656, 471 S.E.2d 636, 638 (1996).
Contributory negligence is "negligence on the part of the plaintiff
which joins, simultaneously or successively, with the negligence of the
defendant . . . to produce the injury of which the plaintiff complains." Watson
v. Storie, 60 N.C. App. 736, 738, 300 S.E.2d 55, 57 (1983).
[T]o . . . constitute contributory negligence in a medical malpractice
action, a patient's negligence must have been an active and efficient
contributing cause of the injury, must have cooperated with the negligence
of the malpractitioner, must have entered into proximate causation of
the injury, and must have been an element in the transaction on which
the malpractice is based.
Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178,
186 (Neb. 1990); see David M. Harney, Medical Malpractice § 24.1,
at 563-64 (3d ed. 1993) (hereinafter Harney). Failure to
follow a physician's instructions may also give rise to contributory
negligence. McGill v. French, 333 N.C. 209, 220-21, 424
S.E.2d 108, 114-15 (1993); see Harney § 24.1(A), at
564-65. When a patient's negligent conduct occurs subsequent to the physician's
negligent treatment instead of concurrently or simultaneously, recovery
by the patient should be mitigated and not completely defeated pursuant
to a contributory negligence theory. Harney § 24.5,
at 571; Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d
65, 74 (1968) (contrasting contributory negligence with the "doctrine
of avoidable consequences"). Expert testimony is not necessary to
establish proximate cause when the jury, using its "common knowledge
and experience, is able to understand and judge the action of [plaintiff]." McGill,
333 N.C. at 218, 424 S.E.2d at 113 (quoting Powell v. Shull,
58 N.C. App. 68, 71, 293 S.E.2d 259, 261, disc. rev. denied,
306 N.C. 743, 295 S.E.2d 479 (1982)).
Contributory negligence as a defense is inapplicable "where a patient's
conduct provides the occasion for care or treatment that, later, is the
subject of a malpractice claim, or where the patient's conduct contributes
to an illness or condition for which the patient seeks the care or treatment
on which a subsequent medical malpractice [claim] is based." Harney § 24.1,
at 564. In other words, a person's use of alcohol cannot constitute contributory
negligence in a malpractice action against a physician treating him for
alcohol abuse. See Cowan v. Doering, 522 A.2d 444, 450 (N.J.
Super. 1987) (patient under physician's care for taking an overdose of
sleeping pills who jumped out of window and brought malpractice action
against physician for failure to take precautionary steps to prevent
her attempt at suicide was not contributorily negligent because the suicidal
conduct was the very symptom for which patient was being treated), aff'd,
545 A.2d 159 (N.J. 1988). On the other hand, a person's use of alcohol
could constitute contributory negligence in a malpractice action against
a physician treating that person for a broken back, provided the use
of alcohol simultaneously joined with the physician's negligence in contributing
to the injuries.
In this case Cobo sought care and treatment for his depression. On the
face of this record there is evidence that a reasonable mind might accept
as adequate to support the conclusion that Cobo's sexual activities with
other men did not contribute to the depression for which he sought treatment
from defendant. Although there is evidence that Cobo was having intermittent
sex with other men prior to his treatment by the defendant, there is
no evidence that his sexual activities (prior to or during his treatment
by the defendant) was the cause of his depression. Indeed, there is evidence
that Cobo's depression was the result of a biological condition. Accordingly,
because there is substantial evidence that Cobo's conduct during the
time he was being treated by the defendant joined simultaneously with
the negligent treatment [1] of the defendant to cause
Cobo's injuries, the trial court erred in not submitting the issue of
contributory negligence to the jury on this basis. [2]
There are also other grounds that support submission
of the issue of contributory negligence. Defendant produced substantial
evidence that he was hindered in his diagnosis and treatment due to several
conditions Cobo imposed on him. Cobo initially refused to pursue a course
of treatment involving medication due to the effects that a previous
medication had upon him. Further, to ensure that his confidentiality
was protected, Cobo requested that defendant take no notes during the
sessions. Thus there is substantial evidence that these actions by Cobo
occurred simultaneously with defendant's negligent treatment and diagnosis
to cause Cobo's injuries.
II
Defendant contends that the three year statute of limitations is a bar
to any action arising out of treatment rendered before December 1986.
Defendant argues that the treatment rendered after December 1986 was
distinctly different from that rendered before December 1986, and therefore
the continuing course of treatment doctrine is inapplicable.
Section 1-15(c) provides that a cause of action for malpractice accrues "at
the time of the occurrence of the last act of the defendant giving rise
to the cause of action." N.C.G.S. § 1-15(c) (1996). Pursuant
to section 1-15(c), a cause of action for malpractice has a statute of
limitations of three years. Pursuant to the continued course of treatment
doctrine, however, a cause of action does not accrue until the conclusion
of the physician's treatment of the patient, so long as the patient has
remained under the continuous treatment of the physician for the injuries
which gave rise to the cause of action. Stallings v. Gunter,
99 N.C. App. 710, 714, 394 S.E.2d 212, 215, disc. rev. denied,
327 N.C. 638, 399 S.E.2d 125 (1990). It is not necessary that the treatment
rendered subsequent to the negligent act be negligent if the physician
continued to treat the patient for the disease or condition created by
the original act of negligence. Id. at 714-15, 394 S.E.2d
at 215.
At the same time that Cobo tested positive for HIV, defendant began a "more
supportive" form of analysis and prescribed medication for Cobo's
anxiety. Cobo's treatment, however, did not change in that Cobo continued
to meet with defendant four times a week to discuss his problems and
to learn how to control and manage those problems, although after 1986
the sessions primarily dealt with Cobo's HIV status. We determine that
despite any change in treatment, because defendant continued to treat
Cobo after 1986 for conditions that Cobo has alleged were caused by defendant's
negligence before 1986, the continuing course of treatment doctrine is
applicable and plaintiffs' action was timely filed.
We have addressed and reject without discussion the defendant's argument
that the trial court erred in denying his motions for directed verdict
and post trial motions. Because we are ordering a new trial, it is not
necessary to address the other issues raised on appeal.
New trial.
Judge MARTIN, Mark D., concurs.
Judge MCGEE dissents in part and concurs in part.
Judge McGEE dissenting in part, and concurring in part.
I respectfully dissent as to the part of the majority opinion which finds
the trial court erred in not submitting the issue of contributory negligence
to the jury, but concur as to the majority's decision that the continuing
course of treatment doctrine is applicable in this case and plaintiffs'
action was timely filed.
In this case, Dr. Cobo sought treatment for depression and participated
in psychoanalysis sessions conducted by defendant four times a week for
approximately eight years. Dr. Cobo and his insurance provider were charged
approximately $100,000 for defendant's services. During this time, Dr.
Cobo's depression grew progressively worse, to the point of jeopardizing
his marriage and career. As the depression deepened, he had crying spells,
began to abuse alcohol and drugs, and increased the frequency of his
homosexual encounters. Despite Dr. Cobo's contention that he was going "through
Hell," defendant never suggested or volunteered as a possibility
that Dr. Cobo see another psychiatrist, nor did he offer an alternative
in the treatment. Any suggestion by Dr. Cobo that someone else or some
other treatment might be helpful "was met with the same either analytic
silence or pushing it off to the side." Later in the treatment,
when Dr. Cobo suggested the possibility of medication, defendant told
him it "might distance [him] from [his] feelings and make it difficult
to participate in the analysis."
Dr. Cobo ended his treatment with defendant in December 1988. He began
treatment with another psychiatrist who prescribed antidepressant drugs,
including Prozac and a tricyclic drug widely available in 1980. Upon
taking the antidepressant medication, Dr. Cobo testified his life improved
dramatically, that there "was a sense of happiness that I was connected
to my kids, to my wife, and that there was . . . that there was a reason
to live other than just to suffer."
Dr. Monroe, plaintiffs' expert witness in psychiatry, testified that,
in his opinion, Dr. Cobo suffered from major depression which had gone
untreated by defendant. Dr. Monroe testified defendant incorrectly diagnosed
Dr. Cobo as suffering from chronic depression, which usually results
from an event or occurrence in a person's life. He testified major depression
represents a biological disregulation which is highly treatable and responds
well to medication. He also testified analytic therapy does not work
well with major depression because the patient is too depressed to adequately
participate in it. Dr. Monroe testified it was his opinion that defendant
had not conformed to the standard of care for physicians similarly trained
and situated in Durham in his treatment of Dr. Cobo from 1980 to 1988.
Dr. Monroe testified that, in his opinion, Dr. Cobo's psychiatric condition
would have been improved from 1980 to 1988 if defendant rendered appropriate
psychiatric treatment and care, and that the continuation of Dr. Cobo's
major depression contributed to his engaging in at-risk behavior.
The majority holds the evidence showing Dr. Cobo continued to engage
in self-destructive behavior while in therapy with defendant constitutes
evidence of contributory negligence, entitling defendant to a jury instruction
on that issue. However, I believe the evidence of Dr. Cobo's conduct
during therapy properly bore on the issue of minimizing of damages.
The rule in North Carolina is that an injured plaintiff, whether his
case be in tort or contract, must exercise reasonable care and diligence
to avoid or lessen the consequences of the defendant's wrong. If he fails
to do so, for any part of the loss incident to such failure, no recovery
can be had. This rule is known as the doctrine of avoidable consequences
or the duty to minimize damages. Failure to minimize damages does not
bar the remedy; it goes only to the amount of damages recoverable. It
has its source in the same motives of conservation of human and economic
resources as the doctrine of contributory negligence, but "comes
into play at a later stage."
"The doctrine of avoidable consequences is to be distinguished from
the doctrine of contributory negligence. Generally, they occur - if at
all - at different times. Contributory negligence occurs either before
or at the time of the wrongful act or omission of the defendant.
On the other hand, the avoidable consequences generally arise after the
wrongful act of the defendant. That is, damages may flow from the wrongful
act or omission of the defendant, and if some of these damages could
reasonably have been avoided by the plaintiff, then the doctrine of avoidable
consequences prevents the avoidable damages from being added to the amount
of damages recoverable."
Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 73-74
(1968)(citations omitted, emphasis added). Here, plaintiffs' complaint
alleged three theories of negligence: 1) defendant "failed to exercise
reasonable care and diligence in the application of his knowledge, skill
and ability in the care and treatment of . . . Cobo beginning approximately
September 20, 1980 and continuing through March, 1989"; 2) defendant "failed
to exercise his best medical judgment in the treatment and care" of
Dr. Cobo; and 3) defendant "failed to exercise that degree of care
and skill in diagnosing Michael Cobo's condition and in treating that
condition as would be in accordance with the standards of practice among
members of the same medical profession, and particularly among physicians
with similar training and experience to the Defendant Ernest A. Raba,
who were situated in the same or similar communities as him at the time
period set forth in the Complaint." Plaintiffs' negligence claims
and the evidence presented at trial show plaintiffs proceeded on a theory
that defendant misdiagnosed Dr. Cobo's condition and began an improper
treatment based on the misdiagnosis. Further, defendant continued that
negligent treatment after it became, or should have become, apparent
the treatment was not working and Dr. Cobo's condition was worsening.
Therefore, under plaintiffs' theory of defendant's negligence, Dr. Cobo's
conduct and behavior during therapy, alleged by defendant to be contributory
negligence, did not arise "before or at the time" of defendant's
wrongful act or omission. See Miller, supra.
As the majority correctly points out, Dr. Cobo's conduct during treatment
could not constitute contributory negligence regarding his claim of an
improper diagnosis. However, I believe the majority incorrectly separates
when the claim for improper diagnosis arose from when plaintiffs' claim
for improper treatment arose. Because the improper treatment was based
upon the incorrect diagnosis, and defendant began the improper treatment
at the start of the doctor/patient relationship, defendant's negligence
occurred at the very beginning of Dr. Cobo's treatment. From the start
of the relationship, defendant treated Dr. Cobo through psychoanalysis,
a course of treatment that plaintiffs' expert witness testified does
not work adequately for people suffering from major depression. Because
defendant's negligence based on improper treatment arose at the start
of the relationship, Dr. Cobo's conduct months and years after the beginning
of treatment could not constitute contributory negligence under either
a theory of improper diagnosis or improper treatment. Therefore, McGill
v. French, 333 N.C. 209, 424 S.E.2d 108 (1993), cited by the majority,
is inapplicable.
Further, the majority states there is no evidence Dr. Cobo's sexual activities
were the cause of his depression. While this statement is correct, the
evidence actually indicated that Dr. Cobo, although a "fundamentally
homosexual" man, engaged in at-risk sexual activity in reaction
to his depression. In fact, his concern over his homosexual tendencies
was a factor in seeking treatment. Because he sought treatment for his
homosexual activity as a symptom of his depression, Dr. Cobo's position
is similar to the alcoholic seeking treatment for alcoholism in the example
provided by the majority.
Nor do I agree with the majority that there are other grounds upon which
to find contributory negligence. Dr. Cobo initially told defendant he
did not wish to take medication because, as a surgeon, he could not afford
to be sedated. However, because defendant improperly diagnosed Dr. Cobo,
Dr. Cobo was never told his condition was biological in nature. Because
Dr. Cobo was never told that his condition would not respond to psychotherapy,
but would respond favorably to medication, Dr. Cobo could not make an
informed decision about the medication and his initial reluctance to
being treated with medication cannot be held to be negligent. Nor does
Dr. Cobo's request that defendant keep no notes amount to contributory
negligence. Regardless of whether defendant kept notes, he would still
have been treating Dr. Cobo with psychoanalysis, which the evidence showed
was an improper and ineffective method of treatment.
I find no merit to defendant's remaining arguments and would therefore
allow the jury's verdict to stand. Accordingly, I would vote No Error.
-
We acknowledge that Cobo's sexual activities
during the period of his treatment by the defendant cannot constitute
contributory negligence with respect to the negligent diagnosis claim.
This is so because that conduct occurred subsequent to the diagnosis.
When, however, the trial court submits only one issue to the jury
with respect to multiple claims of negligence by the plaintiff and
defendant's contentions concerning plaintiff's contributory negligence
would be inappropriate as to one of plaintiff's claims, i.e., negligent
diagnosis, the contributory negligence issue must be submitted to
the jury if the actions by plaintiff may constitute contributory
negligence as to another of plaintiff's claims, i.e., negligent treatment.
See McGill, 333 N.C. at 216, 424 S.E.2d at 112.
-
Of course, on retrial whether the issue of
contributory negligence is to be submitted to the jury must be determined
on the basis of the evidence presented at the new trial, not on the
basis of the evidence in this record, and on the basis of the law
as set forth in this opinion.