The defendant has the burden of proving contributory negligence by the greater weight of the evidence. Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Artrip, 240 Va. at 358, 397 S.E.2d at 823. In order for contributory negligence to bar recovery by a plaintiff, the plaintiff's negligence must be concurrent with the defendant's negligence.
Contrary to the appellees' assertions, the mere absence of a notation in the appellant's chart indicating that she had reported finding a lump in her breast does create a triable issue, and thus warrant a comparative negligence instruction. The facts in the case at bar are strikingly similar to those in Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631 (1999). In Gravitt, the plaintiff was also diagnosed with breast cancer a few months after she was examined by her doctor and told that a lump in her breast was a cyst.
Under Virginia law, a plaintiff's contributory negligence acts as a complete bar to recovery. Gravitt v. Ward, 518 S.E.2d 631, 634 (Va. 1999). To prevail on such a claim, the burden rests on the defendant to show the plaintiff's injuries were proximately caused by his own negligence.
To constitute contributory negligence in a medical-malpractice case, a plaintiff's negligence must be contemporaneous with the claimed defendant's negligence. Sawyer v. Comerci, 264 Va. 68, 75, 563 S.E.2d 748, 753 (2002); Ponirakis v. Choi, 262 Va. 119, 125, 546 S.E.2d 707, 711 (2001); Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987); Lawrence v. Wirth, 226 Va. 408, 412-13, 309 S.E.2d 315, 317-18 (1983). We conclude that the record is devoid of any evidence suggesting that Fields was negligent.
These principles are likewise true with regard to instructions pertaining to primary negligence. See Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Yeary v. Holbrook, 171 Va. 266, 287-88, 198 S.E.2d 441, 451 (1938). [3-5] The doctrine of negligence per se represents the adoption of "the requirements of a legislative enactment as the standard of conduct of a reasonable [person]."
However, "more than a scintilla of evidence is necessary to establish each of the elements of contributory negligence before such instruction may be given to a jury." Sawyer, 264 Va. at 75, 563 S.E.2d at 753; see also Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Ring v. Poelman, 240 Va. 323, 327, 397 S.E.2d 824, 827 (1990). The prima facie case is demonstrated when there is more than a scintilla of evidence produced on each of the elements of contributory negligence.
These include: Matthews v. Williford, 318 So.2d 480, 483 (Fla. Dist. Ct. App. 1975) (patient's failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative-fault instruction); Van Vacter v. Hierholzer, 865 So.2d 355, 360 (Mo. Ct. App. 1993) (reversal warranted when comparative-fault instruction invited jury to apportion fault based on conduct not proximately causing death); Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178, 186-87 (Neb. 1990) (patient's failure to heed doctor's advice to lose weight may have caused pulmonary embolism but is irrelevant to the claim that doctor later negligently treated the condition); and Gravitt v. Ward, 518 S.E.2d 631, 635 (Va. 1999) (insufficient proof of patient's failure to notify doctor of breast lump to warrant comparative-fault instruction). In the present case, the hospital contends that Wolbers' history of tobacco use, even up to the date of his admission into the hospital, was a producing cause of his death because it contributed to the blockage of his air passages.
Additionally, in order for contributory negligence to bar a plaintiff's recovery in a medical negligence action, the plaintiff's negligence must be concurrent with the defendant's negligence.Ponirakis, 262 Va. at 125, 546 S.E.2d at 711; Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987); Lawrence v. Wirth, 226 Va. 408, 412, 309 S.E.2d 315, 317 (1983). We have stated that "[i]n the medical malpractice context, this requirement means that the patient's negligent act must be contemporaneous with the main fact asserted as the negligent act of the physician."
Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178, 186-87 (Neb. 1990) (patient's failure to heed doctor's advice to lose weight may have caused pulmonary embolism but is irrelevant to claim that doctor later negligently treated the condition); accord Matthews v. Williford, 318 So.2d 480, 483 (Fla.Dist.Ct.App. 1975) (patient's failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative fault instruction); Van Vacter v. Hierholzer, 865 S.W.2d 355, 360 (Mo.Ct.App. 1993) (reversal warranted where comparative fault instruction invited jury to apportion fault based on conduct not proximately causing death); Gravitt v. Ward, 518 S.E.2d 631, 635 (Va. 1999) (insufficient proof of patient's failure to notify doctor of breast lump to warrant comparative fault instruction). Applying these principles to the case before us, it is tempting to conclude that the temporal proximity as well as the causal relationship between Brian's conduct and his heart disease makes for a closer call on proximate cause than the cases upon which DeMoss relies.
While virtually all jurisdictions have adopted some form of comparative fault, five jurisdictions retain the traditional system of contributory negligence. See Williams v. Delta Int'l Mach. Corp., 619 So.2d 1330 (Ala. 1993); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998); Harrison v. Montgomery County Bd. of Educ., 456 A.2d 894 (Md. 1983); Jones v. Rochelle, 479 S.E.2d 231 (N.C. Ct. App. 1997); Gravitt v. Ward, 518 S.E.2d 631 (Va. 1999).