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There's sort of an eggshell plaintiff issue here, and the fact that maybe the value of his life is reduced because of his reduced life expectancy.
Failure to reveal medical history, or failure to follow a doctor's advice would be admissible. The fact that a patient's reason for seeking medical treatment was negligently self-inflicted doesn't enter into it, though. Policy to the contrary: we're failing to disincent bad behaviors, and we want people to be careful. General rule: if the paitent's negligence happened prior to the doctor's negligence, it doesn't count, and the doctor is wholly responsible. The scope of negligence is irrelevant if the event is prior.
Remember that doctors aren't supposed to be miracle workers, though-- they are only held to the standard of similar doctors in similar circumstances.
Dimas v. Hamilton (IA, 2002). This is not in our notes. Plaintiff, with history of heart disease, has a heart attack and goes to the doctor. He's told to eat less and exercise, and he does neither. Another heart attack, which is negligently misdiagnosed by another physician. Dead. The second physician is sued, and asserts the plaintiff's prior conduct as a defense. Is there contributory negligence? No: the plaintiff's negligence was prior to the doctor's-- the negligence is in the second misdiagnosis. On the other hand, the effects of the plaintiff's poor health might be used to reduce the damages in an actuarial sense, but not on the basis of contribution.
Previous exam question: a manufacturer of safety vests negligently fails to deliver them to you prior to your boating expedition. You don't bother using the moldy old vests you have, and you drown. It's not contributory negligence: only the vesty-folk were negligence. But your damages might be reduced by the extent to which your lethargy in employing the inferior vests exacerbated your harm.
Again, be careful. Consider the failure to use a safety belt prior to an accident. The plaintiff also drives negligently, and is injured in a 2-car crash, and suffers $200K in damages, whereas damages would only have been $20K, had the safety belt won. The plaintiff's recovery, under the avoidable consequences doctrine, would reduce recovery to $20K. But then that $20K could be reduced further by the plaintiff's contribution. There. So you see that you can have both avoidable consequences and contributory negligence in one delicious package.
Now, in practice, reductions of damages are rarely so strict: courts tend to have sympathy with plaintiffs who failed to deploy safety devices, and they're reluctant to measure the damages so stringently. Note that this is a restricted sub-area within avoidable consequences. . Other fact patterns might be treated differently. In WI, failure to use a helmet or seatbelt won't wipe out more than 50% of the damages.
Why be lenient to plaintiffs who fail to take precautions? It just feels unfair. And after all, but for the defendant's negligence there wouldn't have been ANY damage. So the defendant shouldn't get a windfall just because the plaintiff had a hand in the severity of the harm.
Keep track of the difference between causation of harm and extent of harm, in other words.
Free market advocates like letting people decide. Tort liability in cases like these is sort of like compulsory insurance.
But regardless, the prevalent rule is that you can't contract out of liability for negligence. This isn't the total demise of exculpatory agreements, but generally it's limited to situations where the assumtion of risk is clearly warranted. The clauses have to be extremely clear and unambiguous, because as a general rule, they are disfavored.