Three categories of cases have been noted out of the mass of factually individualistic ones concerning medical malpractice and contributory negligence. The first, where a breach of duty owed the patient by the physician is lacking, involves an injury produced by the patient's own negligence. In the second, the patient's negligence directly contributes to the severity of an injury already present because of the physician's negligence. The plaintiff-patient's damages are not mitigated but rather entirely precluded in light of his acts. Thus a plea of contributory negligence is a complete defense. The third category includes those cases where a time lag exists between the separate negligent acts, each of which produces significant injury. The physician is chargeable only with the consequences of his own negligence, not subsequent acts of his patient. Recognizing these generalized differences, it would be beneficial to an understanding of this field of tort law to review the nature of contributory negligence and its application to medical malpractice litgation. Cases will follow to crystallize some of this fundamental law.
W. David Alderson, Contibutory Negligence in Medical Malpractice, 12 Clev.-Marshall L. Rev. 455 (1963)