Dr. Michael Cobo, a married physician and infectious disease expert, had long led a double life of drug and alcohol abuse and unprotected homosexual intercourse with paid prostitutes before seeking psychiatric counseling from Dr. Ernest Raba in 1980. Raba diagnosed Cobo's condition as dysthymia, a form of depression. Over the next eight years, Cobo saw Raba for psychoanalysis, but otherwise imposed severe restrictions on the care he was to receive. Cobo refused medication, required 6:00 a.m. appointments to avoid anyone seeing him with a psychiatrist and prohibited Raba from taking notes during treatment sessions.
Despite Raba's warnings, Cobo continued his high-risk behavior through 1986, when he tested positive for HIV. Rejecting Raba's recommendation that he obtain medical treatment for the condition, Cobo contracted AIDS within three years.
Cobo and his wife, Virginia, sued Raba in 1991, seeking compensatory damages for the psychiatrist's alleged failure to prescribe appropriate medications and treatment for depression. Raba countered by alleging that Cobo was contributorily negligent.
The jury awarded Cobo $850,000 in damages. However, the state Court of Appeals reversed the judgment, ruling that the trial court erred in failing to submit the contributory negligence issue to the jury. Virginia Cobo then appealed on behalf of the estate of her husband Michael, who had died prior to the Court of Appeals' decision.
Holding: The appellate court's ruling was affirmed. The record showed substantial evidence from which the jury could have determined that Cobo's own negligence proximately caused his injuries. This evidence included self-imposed restrictions on treatment unremitting drug and alcohol abuse and unprotected homosexual intercourse, failure to undergo medical treatment for HIV prior to contracting AIDS, and actual awareness as a highly educated medical professional that his unprotected homosexual conduct was unreasonably dangerous. In North Carolina, a plaintiff's right to recover is barred on a finding of contributory negligence.
Contrary to plaintiff's contentions, the court noted that the activities asserted as contributory negligence took place prior to and contemporaneously with Raba's treatment. The court drew from the decision in Smith v. Fiber Controls, 300 N.C. 669, 673 (1980), which held, "It is not necessary that the plaintiff be actually aware of the unreasonable danger of injury.... [a] plaintiff may be contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety."
Moreover, the court could find no causal nexus between either the depression or psychiatric treatment and Cobo's contraction of AIDS. Accordingly, the court held that the trial court's refusal to instruct the jury on the issue of contributory negligence constituted reversible error warranting a new trial.
 | Lawrence Levine, J.D. Professor of Law University of the Pacific |
Professor Levine comments: The impact of a jury finding Dr. Cobo, the decedent, to be contributorily negligent bars his recovery under the antiquated law still employed in North Carolina. North Carolina mandates a full victory for the defendant upon a finding of any fault on the plaintiff's part while, in order to avoid such a harsh result, virtually all other jurisdictions simply permit a jury to reduce a plaintiff's recovery based on his or her degree of fault.
In some situations the negligence of the defendant is such that fault on the part of the plaintiff is not to be considered. This is typically the case where the defendant's negligence takes advantage of or directly arises from the unreasonable conduct of the plaintiff. For example, no court would bar a child plaintiffs action against a defendant who in violation of child labor laws hired a minor to work on its premises notwithstanding the fact that the child may have been unreasonable in working in violation of law. The law is designed to protect the exploitation of children.
The Raba case could be seen as a similar sort of case. The decedent contends that due to his depressed state, he relied on the defendant, in essence, to protect him against himself. In light of the decedent Cobo's particular expertise the court rejects this argument noting that the decedent's negligence was in large measure the rejection of the defendant's advice. It is hard to discern whether the decedent's mental state was such that a jury should be permitted to consider fault on his part. This is primarily a medical judgment not a legal one.
 | Michael Welner, M.D. Chairman The Forensic Panel |
Dr. Welner comments: What if Dr. Cobo weren't an infectious disease specialist and were not so clearly responsible for short circuiting his psychiatric treatment and imploding his life? Could a legitimate linkage be fashioned between untreated depression and promiscuity in HIV positive homosexual men?
There have long been whispers, based mostly on clinical experience with adolescents, that depression may promote promiscuity in some. These beliefs about gay sexual practices are to some degree promoted by both bias and popular art; Tony Kushner's award-winning play, Angels In America, is one example that comes to mind.
Available research provides mixed results. In one study (Kelly JA et al., Jl Consult Clin Psychol 59:163-166(1991)), which compared 27 gay men (HIV status unknown) who engaged in high risk sexual activity with those who didn't the former group was found to have lower self-reported depression symptoms. Another sample of a Canadian private practitioner (Journal of Social Work and Human Sexuality, 6(2) pp 21-35 (1988)) interviewed 20 patients over age fifteen who had been diagnosed with sexually transmitted diseases. The therapists found unemployment depression, alcohol or drug abuse, difficulty with relationships, and difficulty finding housing, in that order of frequency, were stresses that may have triggered promiscuity.
Even if the research strongly supported or rejected a sequence of depression before gay high-risk promiscuity, the forensic professional must review the progression of activity over time in each individual case. This necessary look back would normally be possible if the promiscuity were an ongoing issue in therapy; Dr. Raba suggested it was. But Dr. Cobo put the freeze on Dr. Raba by prohibiting note-taking. How unselfish and unwise for Dr. Raba to abet the suspicious Dr. Cobo in covering himself—to his own ultimate risk and expense.
Why put up with 6 AM appointments, demanded deviations from standards of documentation, and have-it-your-way treatment? Cobo's treatment history makes as much sense as the surgeon who holds retractors while the patient who once watched the laparotomy program on the Discovery Channel operates on himself.
The prospect of treating a physician and colleague is often too seductive to ignore. Sometimes, therapists feel keeping the patient in treatment is such a priority that they will accommodate patient demands that are just part of the pathology. An unconscious need to render the authority (therapist) powerless is elegantly expressed through a 6AM demand, no notes to review at a later date, no medicines to treat the condition, no avoidance of promiscuity, and no acceptance of HIV treatment. At some point enough is enough; the patient should be congratulated for proving that the therapist really can't help him, and referred on to the next therapist-victim. This was not done by Dr. Raba; how surprising, then, was the dramatic stroke of a malpractice claim blaming Dr. Raba for the patient's own choices—endangering Dr. Raba's ability to even help others?
Tort attorneys who see a therapist so clearly depart from his own established standards should operate on the assumption that other standards have been compromised as well. Message to treating therapists: don't compromise your own treatment standards; you may not get sued, but you'll always regret it.
