Hoyt, Merrill C.

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Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 44 | Issue 2 Article 11October 1967Assumption of Risk as a Defense in MalpracticeLitigationMerrill C. HoytFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusionin Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, pleasecontact dginsberg@kentlaw.iit.edu.Recommended CitationMerrill C. Hoyt, Assumption of Risk as a Defense in Malpractice Litigation , 44 Chi.-Kent L. Rev. 154 (1967).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol44/iss2/11CHICAGO-KENT LAW REVIEWdischarge defendant of his liability. Negligence which occurs prior to thedefendant's negligence is of no effect at all. Negligence which occurs sub-sequent to the defendant's negligence can only serve to mitigate damages.MERRILL C. HoYTASSUMPTION OF RISK AS A DEFENSE IN MALPRACTICELITIGATIONWilliam Prosser, in his treatise on Torts,' discusses three situationsthat give rise to the defense of assumption of risk. The first occurs whenthe plaintiff has expressly given his consent to relieve defendant from aduty and has decided to take his chances of injury from a known risk. Thesecond occurs when the plaintiff, with knowledge of the risk, voluntarilyenters into some relation with the defendant which will probably result inencountering the known danger. The third situation exists when the plain-tiff becomes aware of a risk already created by the negligence of the defen-dant and elects to continue in the face of the danger.All three require that the plaintiff has knowledge of the danger thatis to be encountered and voluntarily elects to meet it. If the plaintiff's de-cision to take the risk is in itself unreasonable, below the standard of thereasonable man, the conduct is a form of contributory negligence. Due tothis overlap, many courts fail to distinguish between contributory negli-gence and assumption of risk.2The difficulty in applying assumption of risk to cases of medical mal-practice is that plaintiff must be shown to have had knowledge of the riskassumed and to have voluntarily chosen to meet that risk. Proving thesetwo elements is difficult at best. A patient may be aware of the dangers in-herent in various medical procedures, but he rarely has any real choice inselecting the treatment given. When he is offered alternatives, both beingthoroughly explained, the charge of negligence is most often grounded inan improper execution of the technique or procedure selected, rather thanin an improper selection of the technique or procedure utilized.Another factor, peculiar to cases of surgery and emergency treatment,which makes assumption of risk inapplicable is the usual unconsciousnessof the patient at the time of the alleged negligence of the physician. Apatient who has neither control over what is being done, nor awareness ofthe physician's activities, cannot be said to have had knowledge of the riskassumed coupled with a voluntary election to meet it. However, under suchcircumstances, it would be equally difficult to prove contributory negli-gence.I Prosser, Torts § 67 (3d ed. 1964).2 Ibid.MEDICAL MALPRACTICE IN ILLINOISIn general, though assumption of risk and contributory negligenceoften overlap, it is much simpler to prove contributory negligence. Assump-tion of risk requires that the plaintiff both know and understand the riskincurred and voluntarily choose to meet that risk.3 If the decision to meet aknown risk is unreasonable, then the plaintiff is also guilty of contributorynegligence. Thus, when the plaintiff is charged with refusing to cooperatewith the defendant-physician, it is easier to show that the plaintiff's be-havior is unreasonable, than it is to prove that the plaintiff, while havingfull knowledge of the probable consequences, voluntarily failed to co-operate, or selected the treatment now being complained of, or in someother way obstructed the course of treatment. For this reason, assumptionof risk is rarely used in malpractice cases.There are no reported Illinois malpractice cases which rest on thetheory of assumption of risk, and there are only a few from other jurisdic-tions that do. In the main, the reported cases that do rest on assumption ofrisk concern the selection of a faith healer to effect a cure.4 Those cases donot concern medical practitioners and are thus beyond the scope of thisarticle. Three of the cases that do involve medical practitioners are dis-cussed below.In the case of Hales v. Raines,5 the Missouri Court was faced with anassumption of risk problem. The defendant claimed that he had informedthe plaintiff that the use of X-rays to treat a skin condition was somewhatdangerous. The patient nevertheless agreed to undergo treatment. The de-fendant claimed that this amounted to an assumption of the risk and thus,the trial court erred in not giving the jury an instruction concerning thatdefense. The appellate court agreed, but went on to say that the plaintiffassumed the risk inherent in the use of X-rays, but not the risk that the de-fendant would prove to be negligent in administering the treatment.A similar situation was again presented to the Missouri court a fewyears later. In the case of Gross v. Robinson,6 the court held that thoughthe plaintiff was warned of the dangers of too many X-ray exposures, andthus assumed that risk, he did not assume the risk of too many exposureswith a machine that was not in proper working order.Though neither of these cases adequately defines assumption of risk,they do illustrate that the risk assumed by a patient may be quite narrowand if the injury is caused by an event beyond the scope of that risk, thedefendant will be liable.Illustrative of how difficult it is to prove that a plaintiff assumed a3 Ibid.4 Faith healers are not medical practitioners and thus, that problem will not be dis-cussed here. For an annotation of the subject, see Annot., 19 A.L.R.2d 1219 (1951).5 162 Mo. App. 46, 141 S.W. 924 (1911).6 203 Mo. App. 118, 218 S.W. 924 (1920).CHICAGO-KENT LAW REVIEWknown risk is the New Mexico Case of Los Alamos Medical Center v. Coe7In that case, the plaintiff was allowed to take morphine at home for reliefof pain as needed. The defendant-doctor assured the plaintiff and her familynot to worry and to give the plaintiff morphine whenever she wanted it.Relying on this instruction, they administered the drug and the plaintiffbecame addicted. The court held that the plaintiff did not assume the risk,as she was justified in relying on the superior knowledge of her doctor. Theplaintiff was under no duty to distrust her physician or to set her judg-ment against his.It is the very disparity in knowledge between a patient and his doctorthat makes assumption of risk an unlikely defense in malpractice litiga-tion. Given this disparity, the assumption of a known risk becomes virtu-ally impossible. It is evident that in following a physician's directions, apeculiar set of circumstances would have to arise before a plaintiff couldbe said to have assumed a known risk. It is probable that an express warn-ing would be required, or that the facts be such that an ordinary manwould know the consequences. It is the very peculiarity of the necessaryfact situation, combined with the availability of contributory negligence asa defense, that has resulted in assumption of risk being virtually forgottenin cases of medical malpractice.8MERRILL C. HoxrTHE STATUTE OF LIMITATIONS AS A BAR IN MEDICALMALPRACTICE LITIGATIONWhen the statute of limitations is pleaded as a bar to a malpracticeclaim, three problems peculiar to this kind of litigation arise. These prob-lems are: (1) Which section of the statute is applicable? (2) When does thestatute begin to run? and (3) What kind of acts constitute the fraud thattolls the statute?WHICH SECTION OF THE STATUTE Is APPLICABLE?In Illinois, there are three possible solutions to the problem of whichstatute applies. Chapter 83, § 15 of the Illinois Revised Statutes places atwo year limitation on actions for personal injuries1 ; Chapter 83, § 16 places7 58 N.M. 686, 257 P.2d 175 (1954).8 In Maki v. Frelk, 85 Ill. App. 2d 439, 229 N.E.2d 284 (2d Dist. 1967), the AppellateCourt for the Second District held that the doctrine of contributory negligence as acomplete bar to recovery would be abandoned and that the doctrine of comparativenegligence would henceforth be used. If the holding of the Maki case is accepted by theother appellate districts or by the Illinois Supreme Court, it can readily be predicted thatdefense attorneys will attempt to make more use of the assumption of risk defense, sinceit is a complete defense while comparative negligence is not.1 Ill. Rev. Stat. ch. 83, § 15 (1965). [Personal injuries, penalties, etc.] Action for dam-

Assumption of Risk as a Defense in Malpractice Litigation

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