Question: A patient consults her physician for a painful wrist, which is treated with indomethacin. The patient has developed skin rashes caused by various medications in the past, but she does not inform the doctor about this. Shortly after starting indomethacin, she develops Stevens-Johnson syndrome. In regard to an assumption of risk defense, which of the following is true?

A. A patient has a legal duty to reveal to the physician all relevant medical history.

B. Assumption of risk is no longer a valid rule of law.

C. Assumption of risk is an affirmative defense in a tort action and constitutes a complete bar to recovery.

D. Assumption of risk is synonymous with contributory negligence.

E. Giving informed consent is tantamount to assumption of risk.

Answer: C. If a plaintiff is fully aware of the risk to which he or she is exposed, and voluntarily accepts that risk, there will be no recovery of damages if harm results. Known as assumption of risk, it constitutes a complete bar to recovery. This defense has two main elements: a patient's full awareness of the risks, and his or her consent to waive all claims for damages.

In contrast, contributory negligence, which usually serves as a partial rather than complete bar to recovery, arises when negligence by the plaintiff played a part in the resulting injury.

Informed consent is when, after being apprised of the risks and alternatives, a patient gives the physician permission to proceed with diagnosis and treatment. However, this principle says nothing about a patient bearing the risk of harm arising out of negligence or incomplete disclosure by the physician.

The Restatement of Torts defines assumption of risk to mean that the plaintiff fully understands the risk and nonetheless chooses voluntarily to take it (§496-C). One court put it this way: “The doctrine of assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice, either by circumstances or coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury” (Myers v. Boleman, 260 S.E. 2d 359, Ga, 1979).

The assumption of risk defense has been asserted most prominently in sports activities such as boxing, where serious injuries are an integral known risk. Other examples include foolhardy actions, such as “where one tries to beat a rapidly approaching train across the track, to engage in drag racing or to walk upon a frozen pond where the ice is thin” (Myers case, supra).

A physician is expected to obtain a complete medical history, but although the patient is expected to be cooperative, he or she does not have to affirmatively volunteer medical information. A doctor cannot readily invoke this doctrine as a defense simply because the patient has not provided a complete medical history. Thus, in the question above (modified from Hayes v. Hoffman, 296 S.E.2d 216, Ga. 1982), the doctor's assumption of risk defense will likely fail. In the scenario described at the beginning of this column, the patient cannot be assumed to have understood fully the risk of not disclosing her drug allergies. She certainly did not anticipate developing something as serious as Stevens-Johnson syndrome. In a similar case where a patient developed anaphylaxis from using a sulfa-containing drug, an appeals court held that the trial judge erred by instructing the jury that a patient who fails to disclose relevant medical history to a physician has assumed risk of harm (Hawkins v. Greenberg, 283 S.E. 2d 301, Ga, 1981).

But in other situations, an assumption of risk defense may be used successfully. For example, a patient voluntarily and actively sought unorthodox herbal treatment for breast cancer after refusing all conventional therapy. She received full disclosure of the nature of the experimental treatment protocol, and the court therefore rejected her subsequent claim for damages. By giving informed consent to nonconventional experimental therapy in this case, the patient was in effect assuming the risk of harm (Schneider v. Revici, 817 F.2d 987, 2nd Cir. 1987).

In English law, the assumption of risk defense is called volenti non fit injuri (Latin for “to a willing person, no injury is done”). However, knowledge of risk does not necessarily imply consent. For example, a plaintiff who accepted a ride from a drunk driver sustained injuries in a subsequent accident. The court ruled that volenti did not apply unless the drunkenness was so extreme and so obvious that accepting the ride was equivalent to walking on the edge of an unfenced cliff.

Contact the author at siang@hawaii.edu.

Assumption of Risk