The doctor/patient relationship includes two separate duties. The physician’s standard of care duties are well know, but few realize that a patient has a duty in this relationship also. It is this forgotten duty that often becomes the basis for a patient negligence defense in a medical malpractice case.

The most prominent duty of the patient occurs in the informed consent. Throughout the diagnostic and treatment phases, the doctor and patient communicate and agree upon a course of action. If the doctor breaches this agreement, then there is cause for malpractice. However, a patient can also breach informed consent by not completing his part of the agreement. This includes, but is not limited to, failure in attending appointments, taking any tests, and following any instructions for lifestyles changes (dietary, activity restrictions, etc.) and ingesting medication. A breach of informed consent on the patient’s behalf is considered patient negligence and can be used as a defense in a malpractice case.

Another often neglected patient responsibility occurs usually during the very first visit with the doctor: the all important medical history. The patient must disclose any all allergies, past and present medical conditions and treatments, as well as any pertinent familial conditions that he is aware of. Nondisclosure of this information can seriously jeopardize care, and is cause for patient negligence also called contributory negligence.

Case law in this area is developing around the competence and expertise of a patient. Courts are steadily ruling against patients whose “attention, perception, memory, knowledge, intelligence, judgment, language skills, and specialized knowledge” (Wollin). In the case of Jackson v. Axelrad, the Texas Supreme court found that a patient’s expertise can be a factor when arguing patient negligence. In this case, the patient was a physician who failed to sufficiently describe the condition his doctor. The patient had the expertise to better relay information to his physician, but his failing to do so resulted in the injury.

The best way to prove these and other forms of patient negligence is with documentation. The records from the visits, the informed consent forms, and patient history are just a few pieces of evidence, already in a physician’s possession, that can help build a defense on patient negligence.

Citations :

Jackson v. Axelrad, No. 04-0923, slip op. ( Tex. Apr. 20, 2007 ).

Wolin, Robert M. “Patient Negligence—a Malpractice Defense”. 9 Jul. 2007

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