Cox v. Lesko

The opinion of the court was delivered by

Larson, J.:

This medical malpractice case raises questions of whether a patient’s failure to perform physical therapy prescribed by a physician may be utilized in comparing fault or can only be considered in mitigation of damages.

Kimberly R. Cox sued Paul Lesko, M.D., alleging his negligent treatment of her shoulder injury resulted in permanent disability. Evidence showed Cox failed to perform physical therapy prescribed by Dr. Lesko. The trial court instructed the jury on failure to mitigate damages but also allowed the jury to compare the fault of Cox…