Mitigation of Damages Where Patient Does Not Follow Advice In Medical Malpractice Cases

In Aimonette v. Hartmann, 214 Ill. App. 3d 314, 574 N.E.2d 776, 158 Ill. Dec. 663 (1991) one of the defendants filed an affirmative defense alleging that plaintiff was contributorily negligent for part of his injuries. Plaintiff entered a hospital for tests. The next day plaintiff was discharged from the hospital because he had a vacation already scheduled. When plaintiff came back from his vacation, his breathing problems persisted. A few days later, he suffered a stroke while jogging. After he was released from a hospital, he entered a rehabilitation center. One of the defendant physicians testified that he told plaintiff to contact him when he returned from his vacation but that plaintiff failed to contact him. Also, plaintiff did not tell him about any numbness in his arm. Defendants withdrew instructions for comparative negligence. The jury returned a verdict in favor of all defendants. IPI Civil 2d No. 105.08 (2d ed. 1971) was given to the jury. The Aimonette court found that there were grounds for submitting a mitigation-of-damages instruction: the court stated that, before he suffered his stroke, plaintiff failed to report his new symptoms and did not return to see either of his physicians after his condition began to deteriorate. Aimonette, 214 Ill. App. 3d at 321. The Aimonette court also stated that because the jury had been given IPI Civil 3d No. 36.01 (which states that if the jury decided in favor of a defendant on the question of liability it would have no occasion to consider the question of damages as to that defendant), the jury would only need to consider the mitigation instruction if one of the defendants was found liable. Thus, the court reasoned, the jury had no reason to consider reducing plaintiff's damages. Aimonette, 214 Ill. App. 3d at 320. The court held that it was not error to give the mitigation-of-damages instruction. Aimonette, 214 Ill. App. 3d at 321. The court also affirmed the trial court's decision not to allow plaintiff to tender instructions on comparative negligence. Aimonette, 214 Ill. App. 3d at 322. The dissent believed it was reversible error to give IPI Civil 2d No. 105.08 to the jury. Aimonette, 214 Ill. App. 3d at 324 (Reinhard, P.J., dissenting). The dissent indicated that, when plaintiff's negligence is an issue, a comparative negligence instruction should be given because plaintiff's negligence can be a contributing cause of the injury. Aimonette, 214 Ill. App. 3d at 324. On the other hand, a mitigation instruction is solely a damage-reducing instruction that is inappropriate where the real question is whether the plaintiff's negligence was a contributing cause of a single injury. Aimonette, 214 Ill. App. 3d at 324. The dissent also pointed out that IPI Civil 2d No. 105.08 permits the mitigation of damages against a physician where the patient does not follow reasonable advice as to treatment or does not follow the physician's instructions subsequent to the injury caused by the earlier malpractice of the physician. Aimonette, 214 Ill. App. 3d at 324. The dissent stated that no injury occurred before the plaintiff suffered a stroke. Aimonette, 214 Ill. App. 3d at 325. The alleged failure to follow instructions occurred before the stroke and could only be used to compare plaintiff's negligence with that of defendants in order to determine the proximate cause of the injury. Aimonette, 214 Ill. App. 3d at 325.