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Maine Law Firm Helping Clients Fight Against the “Smoking” Defense
Medical Malpractice

Maine Law Firm Helping Clients Fight Against the “Smoking” Defense

Smoking is bad for health and causes (or exacerbates) many illnesses. If you smoke and decide to pursue a medical malpractice case, the defense will attempt to use your smoking history against you: Maybe we committed malpractice, but you would not have been so sick in the first place if you had just listened to your doctors years ago and quit smoking.

This does not just apply to smoking. Any negative medical or lifestyle choice triggers the potential for this type of defense: drinking too much alcohol, poor diet leading to obesity or diabetes, lack of sufficient exercise, failure to receive regular medical checkups. In fact, it is difficult to imagine anyone who cannot be blamed for one or more bad life decisions that have the potential to impact their own health.

The question, then, often arises: to what extent can a person’s poor medical or lifestyle decisions be used against them in a malpractice case?

The answer to this question is not always straightforward, but there are certain legal principles that will apply.

Past Lifestyle and Medical Decisions Are Not “Comparative Fault”

The law is clear that a person’s past lifestyle and medical decisions do not, as a matter of law, serve as a defense to medical negligence. In other words, the medical provider is not permitted to assert an affirmative defense of comparative fault based upon your client’s past medical or lifestyle decisions.

In Maine, the leading case on point is Harvey v. Mid-Coast Hospital, 36 F. Supp. 2d 32 (D. Me. 1999). In that case, Julian Harvey attempted to commit suicide by overdosing on his bipolar medication in his dorm room. Julian was taken to the ICU at Mid-Coast Hospital, where he experienced repeated seizures that caused permanent brain damage. His family sued, alleging that the providers at Mid-Coast failed to properly treat the seizures.

Mid-Coast attempted to assert a comparative fault defense against Julian on the grounds that he was at fault for this predicament based upon his bad decision to attempt suicide. The Court rejected that defense and granted partial summary judgment to the plaintiff, holding that a “patient’s negligent or intentional conduct that occurs prior to the negligent treatment and provides only the occasion for a subsequent malpractice claim is inapplicable to the assessment of damages between the patient and the negligent health care provider.” The “principles of comparative fault do not apply in medical malpractice actions so as to result in the apportionment of damages between a claimant whose own conduct causes the initial injury that provides the occasion for the medical malpractice and a health care provider who negligently treats the claimant for that injury.”

The rule makes sense. People go to doctors when they are sick. If a doctor fails to provide reasonable medical care, it would be silly to allow the doctor to blame the patient for being sick in the first place. As some courts have recognized, allowing doctors to elude malpractice claims because of a patient’s prior bad choices would diminish the deterrent effect of malpractice claims, because doctors could be “indifferent to the performance of [their] duty knowing that the very eventuality that [they are] obliged by law to prevent would, upon its occurrence, relieve [them] from responsibility.” Cowan v. Doering, 215 N.J. Super. 484, 495, 522 A.2d 444 (App. Div. 1987).

Another way of saying this is that doctors must take patients as they come. They owe the same standard of care to a patient who smokes as to one who does not. As another court put it, “[t]hose patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.” Martin v. Reed, 200 Ga. App. 775, 777, 409 S.E.2d 874, 877 (1991).

Contemporaneous or Subsequent Medical or Lifestyle Decisions

The Harvey rule applies only to past medical or lifestyle decisions—that is, to things your client did (or failed to do) before the point in time where it is alleged that malpractice occurred. If your client makes poor lifestyle or medical decisions contemporaneous with or after the point in time of the malpractice, that is a different story. Then, these poor decisions may form the basis of a comparative fault defense.

Medical Causation

The Harvey rule also does not prevent the medical provider from raising the client’s past medical or lifestyle decisions if the provider shows that such facts are relevant to medical causation. Thus, while the jury in Harvey was not permitted to consider Julian’s comparative fault, it could “consider whether the ingestion of an overdose . . . is the sole proximate cause of Julian’s brain and neurological damage.”

Of course, there is a big difference between a comparative fault defense and an effort to rebut the 2plaintiff’s theory of medical causation. One difference is that the plaintiff need only prove that the medical negligence is a cause of harm; the plaintiff need not prove that it is the only cause of harm. Thus, in many cases it is perfectly consistent for the plaintiff’s bad past choices, like smoking, to have contributed to the bad outcome, even if the medical negligence also contributed to the bad outcome (which is all the plaintiff has to prove). Because there is no comparative fault, if the plaintiff gets over this threshold, the defense is allowed to ask the jury to apportion fault to the plaintiff on the verdict form.

Additionally, proving medical causation almost always requires expert testimony. If the defense seeks to argue that your client’s prior medical or lifestyle choices were the sole cause of your client’s bad outcome, he will need to find an expert to support that position. Without such expert opinion, the court is not likely to permit any reference to your client’s past medical and lifestyle choices, because this evidence is prejudicial and not relevant to any issue in dispute.

Real-World Example

To see these principles in action, let us explore an example.

Your mother is not paying attention, trips over a curb and falls, and breaks her leg. She is also a lifelong smoker. An orthopedic surgeon does surgery to fix the fracture, installing plates and screws. The surgeon advises your mother to stop smoking because smoking impedes bone healing.

Your mother goes home to recuperate but does not quit smoking. A couple of weeks later, the hardware breaks. The bones do not heal. Infection sets in and ultimately, she requires a leg amputation. Your mother sues the orthopedic surgeon, alleging that the surgery was not performed to standard because the plates and screws were not installed properly leading them to fail.

Here, the Harvey rule clearly prevents the orthopedic doctor from asserting a comparative fault defense based upon your mother’s failure to pay attention, resulting in her fall. It also precludes a comparative fault defense based upon your mother’s long history of smoking, even though this history arguably caused her to have thinner bones making her more susceptible to a bad fracture than a non-smoker.

However, the Harvey rules do not prevent the doctor from asserting a comparative fault defense based upon your mother’s decision to ignore his medical advice to stop smoking following surgery. If the doctor has a medical expert that supports it, the doctor may also challenge medical causation on the grounds that the hardware failed solely because of your mother’s thinner and softer bones from her history of smoking and not because of any defect in the fixation placed in surgery.


Although it would be nice if you had a pristine life before you are injured by medical negligence, the reality is that most people do not. As your medical malpractice lawyers, it is our job to protect you to the maximum extent through the civil trial process and to ensure that a jury can evaluate the merits of your malpractice case without being unduly influenced by the prejudicial impact of prior lifestyle and medical decisions.