In an appropriate case, a patient’s culpable conduct, as for example a failure to provide an accurate medical history or heed instructions for follow-up care, can result in an apportionment of fault against the plaintiff and a corresponding reduction in the damages recoverable, or at a minimum, provide the basis for a jury instruction on mitigation of damages. In addition, negligent conduct by the plaintiff which contributed to the condition for which treatment was sought may potentially be treated as culpable conduct.
A case in point is Elkins v. Ferencz, 1 263 A.D.2d 372 (1st Dept. 1999), which involved an alleged failure to properly diagnose and treat periodontal disease, resulting in the loss of four teeth and other injuries. Over the course of nearly 20 years, the plaintiff saw the defendant, a general dentist, on approximately 60 occasions for treatment consisting of cleanings, clinical examinations including regular periodontal probing, full mouth series X-rays, restorative work, and referrals to specialists when necessary. Towards the end of the course of treatment, the defendant referred the plaintiff to a periodontist because of the appearance of her gums.
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