Sawka v. Prokopowycz

In Sawka v. Prokopowycz, 104 Mich App 829, 834-838; 306 NW2d 354 (1981), the decedent died of lung cancer, which the defendants failed to diagnose. Id. at 832, 835. The defendants argued that the decedent's failure to follow through with a recommended examination and his failure to stop smoking after being warned to stop was evidence of contributory negligence. Id. at 837. The Court held that the decedent's smoking could not logically be termed a direct contributory cause of the alleged malpractice, but observed that a patient's conduct could constitute contributory negligence in a malpractice case in situations where the patient: (1) failed to follow instructions; (2) refused treatment, or; (3) provided the doctor with false, incomplete or misleading information concerning symptoms. Id. at 836. The Court concluded that the trial court erred in failing to instruct the jury that contributory negligence, i.e., the decedent's failure to return for a follow-up examination and the decedent's smoking, could not be considered in determining defendants' liability for malpractice. Id. at 837-838. There was a possibility that the jury erroneously considered these factors when deciding the issue of the defendants' liability. Id. at 838.