Aug 21, 1978 Civil Procedure
LeMons v. Regents of the University of Cal. (1978) 21 Cal.3d 869
Plaintiff brought a malpractice action for damages for partial facial paralysis arising out of an operation in which a doctor unintentionally severed plaintiff’s facial nerve before identifying it. Defendants argued that plaintiff could have avoided her present condition by following the treatment prescribed by the operating doctor, instead of going to a different doctor. As requested by defendants, the trial judge instructed the jury on a patient’s contributory negligence in failing to follow proper medical advice and on an injured party’s duty to mitigate damages. The jury rendered a nine-to-three verdict in favor of defendants.
The Supreme Court reversed. The Court held:
  1. Since there was no evidence that plaintiff’s original injury resulted from any failure to follow medical instructions, it was error for the trial court to instruct the jury on plaintiff’s contributory negligence.
  2. The error was prejudicial, in view of the sharply conflicting evidence on the critical issue of whether the doctor’s conduct was within the community standard of medical practice, and defense counsel’s argument to the jury that plaintiff was responsible for her lack of significant recovery because she sought ‘incompetent medical counsel‘ after abandoning the operating doctor’s treatment program.
  3. A general instruction on liability for negligence intended to be given when there is no issue of contributory negligence did not cure the error, since when two instructions are inconsistent, the more specific charge controls the general charge.