Dissent on Petition foe Rehearing.
Bierly, J.— I would grant the petition for rehearing in the above entitled case.
The appellant contends that the giving of the appellee’s Instructions Nos. 3, 4, 5 and 7 was prejudicial to the appellant. I quote the opinion relative to the giving of these instructions :
“It is the opinion of this Court that the trial court should not have tendered the appellee’s instructions Nos. 3, 4, 5 and 7 to the jury. These instructions withdrew from the jury specifications B, C, D, and F of paragraph 3 of the appellant’s complaint which alleged in substance that the appellee failed to properly treat the arm in accordance with good medical practice in the area of Northern Indiana. It is evident from an examination of the record that there was sufficient evidence to support all four of the allegations of negligence withdrawn from the jury by the court, and *614the giving of the appellee’s instructions Nos. 8, 4, 5 and 7 was prejudicial to the appellant. Norwalk Truck Line Co. v. Kostka (1950) 120 Ind. App. 383, 88 N. E. 2d 799.” (Emphasis supplied.)
I am of the opinion that the giving of aforesaid instructions constituted reversible error and said judgment should have been reversed.
The opinion seems to justify the affirmance of the judgment due to alleged contributory negligence on the part of appellant. This affirmance apparently was based on the assumption that appellant was guilty of contributary negligence. Contributory negligence has been defined as:
“. . . the failure of a plaintiff to use reasonable care to avoid injury to himself which failure if any proximately contributes to cause the injuries for which he seeks to recover.” (Emphasis supplied.) Indiana Trial and Appellate Practice, Flanagan, Wiltrout & Hamilton, § 1526, p. 252; Holtam v. Sachs (1963) 136 Ind. App. 231, 193 N. E. 2d 370.
Appellee treated the appellant from the time of the fracture of both bones of his left arm on April 23, 1960, to October 28, 1960, when appellant discharged appellee as attending physician. Whatever contributory negligence, if any, attributed to appellant, must have occurred during this period of time.
The opinion finds the appellant guilty of contributory negligence on two counts. The first related to appellant carrying, or attempting to carry, fertilizer bags. The second was the failure of the appellant to consult the second doctor or physician until the — day of January, 1961.
The evidence shows that the physician failed to treat appellant’s injury in such professional manner as was the practice in the community. The alleged act or acts of the appellant does not excuse the performance of medical skill by the attending physician in a manner comparable to commonly accepted medical standards in such type of injury.
*615It appears that the only manner in which the lifting of a bag of fertilizer could be contributory negligence on the part of appellant, would be a showing that this act was a direct, proximate cause of injury. This contention seems remote, since the time of the attempt to lift the bag was not established, and hence it might have been four or five months following the date of injury.
The negligence of the doctor was not in the nature of an act, but rather it was a failure to act, or an omission. Even if we were to assume that the plaintiff re-injured his arm by lifting the fertilizer bag, this would not be a proximate cause of the injury as it is related to the defendant’s failure to act. The evidence discloses that the attending physician, after the initial treatment, allowed the patient’s arm to remain unattended for six (6) months, during which time the arm failed to heal. I cannot agree that plaintiff’s attempt to lift a fertilizer bag would contribute to the proximate cause of a negligent failure to act.
By no stretch of the imagination can we perceive how the failure to consult a second physician until January, 1961, can be construed to make the appellant guilty of contributory negligence for an injury occurring six months previously.
It is stated in 50 A. L. R. 2d 1044, at p. 1045, that:
“Recovery has been denied where the patient’s negligence concurred with that of the physician or surgeon in causing the injury, while negligence on the part of the patient subsequent to the acts of malpractice, with resultant aggravation of the injury which had been caused by such malpractice, serves to mitigate the damages, the defendant being liable for such injuries as are directly attributable to his acts, but not for the additional injuries caused by such subsequent negligence of the patient.”
Also, in a New Jersey malpractice case (Flynn v. Stearns [1958], 145 A. 2d 33, at p. 37), involving a broken arm, the court went into great detail examining the question of con*616tributory negligence as it applies to medical malpractice cases, and reached the following conclusions:
“Appellant contends that this charge was erroneous because ‘Negligence of the patient, to constitute a bar to the suit, must have been an active and efficient contributing cause of the injury; it must have been simultaneous and cooperating with the fault of the defendant, must have entered into the creation of the cause of action, and have been an element in the transaction which constituted it. Where the fault of the patient was subsequent to the fault of the physician and merely aggravated the injury inflicted by the physician, it only affects the amount of the damages recoverable by the patient.’ This is a correct general statement of the law. 41 Am. Jur., Physicians & Surgeons, sec. 80, p. 199; Annotations: 50 A. L. R. 2d 1043 and 17 L. R. A., N. S., 1242. Appellant says that since here the fault, if any, of the plaintiff was subsequent to the fault of the defendant it was not a proximate contributing cause of the injury, and it should have been submitted to the jury, if at all, only as bearing on the issue of damages, and not as a basis for a finding of contributory negligence.
“Although it is frequently said that the ‘general rules with respect to the effect of contributory negligence on the right to recover for personal injuries apply in actions for injuries alleged to have arisen from the negligence or malpractice of a physician.’ (70 C. J. S., Physicians and Surgeons, § 51, 973), it is much more difficult to apply those rules in such cases than in the usual accident case. The reasons for this are obvious, chief among them being that in an accident case we deal ordinarily with what happened in the space of a few minutes and negligence and contributory negligence are determined on the basis of the actions within that brief time. As compared with the medical malpractice case, it is relatively easy in the usual accident case to ascertain and to set apart what happened before the accident, at the moment of the accident, and thereafter, and to distinguish between the accident and the results thereof. The contact between a physician and his patient, on the other hand, covers a much longer period of time and involves numerous and diverse actions, treatments, medications, instructions, and day-to-day fluctuations in the condition of the patient and the corresponding duties of the physician. Frequently the question of how long the relationship of doctor and patient continued becomes very important. The ministrations of the physician are usually a continuing process and, *617when it is, the evaluation of his negligence may have to be made on the basis of his overall performance during the period of that relationship rather than on what happened at any particular instant within that period. By the same token, whether what the patient did or failed to do in response to his doctor’s instructions constituted contributory negligence must frequently be determined not on the basis of any particular incident, but on the basis of all that happened during the period of that relationship. Therefore, the general rules relating to contributory negligence must be sharpened considerably when applied to medical malpractice cases and care must be taken to tailor the charge to the jury in such cases to fit the facts of the particular case. Cf. Kreis v. Owens, 38 N. J. Super. 148, 155, 118 A. 2d 420 (App. Div. 1955) ; Brumberger v. Burke, 56 F. 2d 54, 56 (3Cir., 1932).” . . .
“In its charge on contributory negligence, the trial court did not tell the jury that such negligence must be a proximate cause of the injury. The failure to do so with an adequate definition of proximate cause is prejudicial error. Naccia v. Tynes, 39 N. J. Super. 1, 6, 120 A. 2d 263 (App. Div. 1956) ; Kreis v. Owens, supra. Cf. Snyder v. Bicking, 115 N. J. L. 549, 550, 551, 181 A. 161, 102 A. L. R. 409 (E. & A. 1935). Instead, the trial court told the jury that the evidence (and it was the only evidence) presented by defendant to support the defense of contributory negligence was plaintiff’s failure to continue the exercises at home after September 25, 1950, and that upon that evidence the jury could find for the defendant. In effect, the trial court thus ruled that as a matter of law, if the jury found that the elements of contributory negligence (other than proximate cause) existed in this case, the failure to continue the exercises met the legal standard of a proximate contributing cause of the injury.
“Under the evidence in this case this was error. If the defendant was negligent in the respects charged by the plaintiff, plaintiff’s failure to exercise ‘was subsequent to the fault of the physician and merely aggravated the injury inflicted by the physician’ and therefore it affected only ‘the amount of the damages recoverable by the patient.’ 41 Am. Jur., Physicians & Surgeons, sec. 80, p. 199.” . . .
“Although the jury had sufficient evidence upon which to find that the defendant was not guilty of negligence, we have no way to determine whether the jury found for the defendant upon that ground or upon the ground of con-*618■tributary negligence. Hence, the judgment must be reversed and a new trial ordered.”
I am of the opinion that the factors which the majority classify as “contributory negligence” are really factors which would go towards a mitigation of damages only, and in no way could or should affect liability.
In addition, the appellant asserts error in this court’s opinion and decision, in that we have failed to give a statement in writing and failed to give a decision on the following question arising from the record and by appellant in his brief to wit:
That defendant’s (appellee’s) tendered instruction No. 16 which was a misstatement of the law.
Instruction No. 16 reads as follows:
“It is the duty of a patient, as stated in the instructions herein, to submit to the treatment prescribed by his physician and to follow the necessary or reasonable directions given by him. If the patient, by refusing to adopt the procedures given by the doctor or to comply with the directions of the doctor, prostrates or defeats the endeavors of the physician and surgeon, or if he aggravates the case by his misconduct, he cannot charge to the physician the consequences due distinctly to himself.
"A party seeking to recover for an injury must not have contributed, to it in any degree, either by his negligence^ or the disregard of a duty imposed upon him by the physician. If the contributory negligence of the patient, if you find he was contributory negligent under the instructions I have given, united with other factors in this case in producing the injuries complained of, Dr. Sehlemmer is not liable for damages, therefore, and in such case, your verdict should be for the defendant.” (Emphasis supplied).
The appellant objected to this instruction, as follows:
“The plaintiff objects to defendant’s tendered instruction number sixteen (16) for the reason that there is no evidence to support the instruction that the plaintiff did not follow the necessary or reasonable directions given to him, and where there is no evidence, the jury should not be *619instructed on that subject. The instruction is also erroneous for the reason that it would state to the jury that if the plaintiff failed to follow any instruction, whether it was correct or whether it was reasonable, it would prevent his recovery. The instruction is also a misstatement of the law in that it states that the plaintiff cannot recover either by his negligence or the disregard of the duty imposed upon him by his physician. The only thing that can prevent plaintiff’s recovery on his own conduct is negligence. Under this instruction, the disregard of a duty imposed upon him by a physician defeats his right of recovery even though it is not negligence, and if it is not negligence, it cannot be contributory negligence, and so this instruction improperly states the defense of contributory negligence.” (Emphasis supplied).
The error of Instruction No. 16 is obvious. The appellant’s objections thereto state my conclusion correctly. If this were not the law, a doctor could negligently leave an instrument inside a patient’s body following a surgery, then prescribe that the patient take a certain number of pills daily to prevent infection and fever. Assuming patient failed to take the pills or missed taking some of them, he could not recover for the doctor’s negligence, because he would have disregarded a duty imposed upon him by the doctor, in failing to follow the doctor’s instructions to take the pills. This is clearly a misstatement of the defense of contributory negligence.
Also, the appellant points out in his petition for rehearing that, . . the Court erred in its opinion and decision . . .
* * *
“In holding that the jury could have found the appellant guilty of contributory negligence when said jury was erroneously instructed in this regard by the giving of appelle’sii tendered instruction number 31, . . ..”
Said instruction is as follows:
“Where both the surgeon and patient are free from negligence, or where the surgeon and patient are both guilty of negligence, or where the surgeon is free from fault and the patient is guilty of negligence, no recovery can be had by *620the patient against the surgeon in any ease. It is only where the surgeon is guilty of negligence and the patient is without negligence on his part contributing in any degree to such injuries that the patient can recover damages of the surgeon.” (Emphasis supplied.)
Plaintiff’s objections to said instruction is as follows:
“Plaintiff objects to defendant’s tendered instruction number thirty-one (31) for the reason that the last sentence in the instruction is an incorrect statement of the law. This instruction is telling the jury that even though the defendant, the surgeon, is guilty of negligence, the plaintiff cannot recover unless he is without negligence on his part contributing in any degree to such injury. This is not the law. In order that there be contributory negligence, the negligence of the plaintiff must concur with that of the defendant in producing the original injury. Under this instruction, if the negligent conduct of the defendant produced the injury but at some subsequent time the plaintiff was negligent and his negligence aggravated his injury, this is not contributory negligence that would prevent a recovery, but is only negligence that could be used on the question of mitigation of damages. This instruction is, therefore, erroneous in that it tells the Jury that even after Dr. Schlemmer was guilty of negligence by failure to put on an arm cast and that a nonunion resulted and the plaintiff failed to follow the doctor’s instructions, even though erroneous, such action on the pcurt of the plaintiff contributed in any degree to his injury, he could not recover. Certainly this cannot be the law.” (Emphasis supplied.)
I am of the opinion that the giving of this instruction constituted reversible error in itself.
The Supreme Court has recently spoken in regard to contributory negligence in the case of Huey v. Milligan (1961), 242 Ind. 93, 96, 175 N. E. 2d 698.
In that case, an instruction was given over the objection that it was,
“ ‘a mandatory instruction which orders the jury to return a verdict for the defendant if the plaintiff was guilty of any negligence which ‘proximately contributed in the slightest degree to the collision.’ ’ ” (Emphasis theirs.)
*621“Appellant asserts that a negligent act of the plaintiff must be a substantial factor in, or materially contribute to, producing the injury of which complaint is made in order to constitute a proximate cause thereof.”
The court then proceeded to distinguish between a proximate cause and a remote cause. It held that by its definition, contributory negligence,
“. . . excludes the idea of a ‘remote’, ‘indirect’ or ‘insignificant’ causal connection between the negligence and the injury ....
“Consequently the negligence of appellee herein could not be both a remote and a proximate contributing cause of the injury. A negligent act which contributes ‘in the slightest’ to an injury is a remote cause and not a proximate or direct cause.” Huey v. Milligan, supra.
In the case at bar, the words, “in any degree,” would certainly encompass the words, “in the slightest,” therefore, the instruction is erroneous.
It should also be remembered that we have no degrees of negligence in Indiana. One is either negligent or one is not, and then the causation factor is applied to determine liability, or in the case of contributory negligence, the negligence must have proximately contributed to the injury to be a valid defense.
For these reasons, I am of the opinion that the petition for rehearing should be granted.
Note. — Reported in 223 N. E. 2d 759. Dissent to Petition for Rehearing reported in 225 N. E. 2d 584.