concurring.
I concur. I agree that the District Court was not clearly erroneous in finding that the negligence of the jail and hospital was not the proximate cause of Skar’s injury for the reasons stated in Judge Hanson’s opinion. Although I also agree that the issue of contributory negligence was properly submitted to the jury, I feel that it is necessary to expand upon the majority’s analysis.
Under Nebraska law, a patient has the duty to fully and truthfully answer questions that are asked by his physician to form a diagnosis, but only if he has the physical and mental ability to do so. Consequently, an instruction on contributory negligence should not be given if a patient is unable to provide complete and accurate information about himself because of a mental condition.
As the majority recognizes, an issue should be submitted to the jury only if reasonable minds could differ on its resolution. During the trial, evidence was introduced indicating that Skar was incapable of accurately informing his physician. Skar was diagnosed by one physician as a paranoid schizophrenic. One manifestation of paranoid schizophrenia is the inability to discern truth from fantasy. Other evidence, however, indicates that Skar’s mental capacity to provide this information was not substantially impaired. Dr. Osborne concluded that Skar was in control of his faculties and was merely refusing to cooperate. None of the subsequent psychiatric and psychological evaluations Skar underwent indicated a paranoid schizophrenic condition. Insofar as there is considerable conflict in the record concerning Skar’s ability to provide full and accurate information about himself, it was for the jury to decide whether Skar had a duty to do so; and if so, whether he breached that duty. Thus, on the basis of this record, including the medical testimony, I conclude that the District Court did not err in submitting the issue of contributory negligence to the jury, although I have grave reservations whether such testimony reflects the true state of events.
Accordingly, I concur in the affirmance.