dissenting in part, and concurring in part. .
I respectfully dissent as to the part of the majority opinion which finds the trial court erred in not submitting the issue of contributory negligence to the jury, but concur as to the majority’s decision that the continuing course of treatment doctrine is applicable in this case and plaintiffs’ action was timely filed.
In this case, Dr. Cobo sought treatment for depression and participated in psychoanalysis sessions conducted by defendant four times a week for approximately eight years. Dr. Cobo and his insurance provider were charged approximately $100,000 for defendant’s services. During this time, Dr. Cobo’s depression grew progressively worse, to the point of jeopardizing his marriage and career. As the depression deepened, he had crying spells, began to abuse alcohol and drugs, and increased the frequency of his homosexual encounters. Despite Dr. Cobo’s contention that he was going “through Hell,” defendant never suggested or volunteered as a possibility that Dr. Cobo see another psychiatrist, nor did he offer an alternative in the treatment. Any suggestion by Dr. Cobo that someone else or some other treatment might be helpful “was met with the same either analytic silence or pushing it off to the side.” Later in the treatment, when Dr. Cobo suggested the possibility of medication, defendant told him it “might distance [him] from [his] feelings and make it difficult to participate in the analysis.”
Dr. Cobo ended his treatment with defendant in December 1988. He began treatment with another psychiatrist who prescribed antidepressant drugs, including Prozac and a tricyclic drug widely available in 1980. Upon taking the antidepressant medication, Dr. Cobo testified his life improved dramatically, that there “was a sense of happiness that I was connected to my kids, to my wife, and that there was . . . that there was a reason to live other than just to suffer.”
Dr. Monroe, plaintiffs’ expert witness in psychiatry, testified that, in his opinion, Dr. Cobo suffered from major depression which had gone untreated by defendant. Dr. Monroe testified defendant incorrectly diagnosed Dr. Cobo as suffering from chronic depression, which usually results from an event or occurrence in a person’s life. He testified major depression represents a biological disregulation which is highly treatable and responds well to medication. He also testified analytic therapy does not work well with major depression because the patient is too depressed to adequately participate in it. Dr. Monroe testified it was his opinion that defendant had not con*328formed to the standard of care for physicians similarly trained and situated in Durham in his treatment of Dr. Cobo from 1980 to 1988. Dr. Monroe testified that, in his opinion, Dr. Cobo’s psychiatric condition would have been improved from 1980 to 1988 if defendant rendered appropriate psychiatric treatment and care, and that the continuation of Dr. Cobo’s major depression contributed to his engaging in at-risk behavior.
The majority holds the evidence showing Dr. Cobo continued to engage in self-destructive behavior while in therapy with defendant constitutes evidence of contributory negligence, entitling defendant to a jury instruction on that issue. However, I believe the evidence of Dr. Cobo’s conduct during therapy properly bore on the issue of minimizing of damages.
The rule in North Carolina is that an injured plaintiff, whether his case be in tort or contract, must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant’s wrong. If he fails to do so, for any part of the loss incident to such failure, no recovery can be had. This rule is known as the doctrine of avoidable consequences or the duty to minimize damages. Failure to minimize damages does not bar the remedy; it goes only to the amount of damages recoverable. It has its source in the same motives of conservation of human and economic resources as the doctrine of contributory negligence, but “comes into play at a later stage.”
“The doctrine of avoidable consequences is to be distinguished from the doctrine of contributory negligence. Generally, they occur — if at all — at different times. Contributory negligence occurs either before or at the time of the wrongful act or omission of the defendant. On the other hand, the avoidable consequences generally arise after the wrongful act of the defendant. That is, damages may flow from the wrongful act or omission of the defendant, and if some of these damages could reasonably have been avoided by the plaintiff, then the doctrine of avoidable consequences prevents the avoidable damages from being added to the amount of damages recoverable.”
Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 73-74 (1968) (citations omitted, emphasis added). Here, plaintiffs’ complaint alleged three theories of negligence: 1) defendant “failed to exercise reasonable care and diligence in the application of his knowledge, skill and ability in the care and treatment of... Cobo beginning approximately *329September 20, 1980 and continuing through March, 1989”; 2) defendant “failed to exercise his best medical judgment in the treatment and care” of Dr. Cobo; and 3) defendant “failed to exercise that degree of care and skill in diagnosing Michael Cobo’s condition and in treating that condition as would be in accordance with the standards of practice among members of the same medical profession, and particularly among physicians with similar training and experience to the Defendant Ernest A. Raba, who were situated in the same or similar communities as him at the time period set forth in the Complaint.” Plaintiffs’ negligence claims and the evidence presented at trial show plaintiffs proceeded on a theory that defendant misdiagnosed Dr. Cobo’s condition and began an improper treatment based on the misdiagnosis. Further, defendant continued that negligent treatment after it became, or should have become, apparent the treatment was not working and Dr. Cobo’s condition was worsening. Therefore, under plaintiffs’ theory of defendant’s negligence, Dr. Cobo’s conduct and behavior during therapy, alleged by defendant to be contributory negligence, did not arise “before or at the time” of defendant’s wrongful act or omission. See Miller, supra.
As the majority correctly points out, Dr. Cobo’s conduct during treatment could not constitute contributory negligence regarding his claim of an improper diagnosis. However, I believe the majority incorrectly separates when the claim for improper diagnosis arose from when plaintiffs’ claim for improper treatment arose. Because the improper treatment was based upon the incorrect diagnosis, and defendant began the improper treatment at the start of the doctor/patient relationship, defendant’s negligence occurred at the very beginning of Dr. Cobo’s treatment. From the start of the relationship, defendant treated Dr. Cobo through psychoanalysis, a course of treatment that plaintiffs’ expert witness testified does not work adequately for people suffering from major depression. Because defendant’s negligence based on improper treatment arose at the start of the relationship, Dr. Cobo’s conduct months and years after the beginning of treatment could not constitute contributory negligence under either a theory of improper diagnosis or improper treatment. Therefore, McGill v. French, 333 N.C. 209, 424 S.E.2d 108 (1993), cited by the majority, is inapplicable.
Further, the majority states there is no evidence Dr. Cobo’s sexual activities were the cause of his depression. While this statement is correct, the evidence actually indicated that Dr. Cobo, although a “fundamentally homosexual” man, engaged in at-risk sexual activity *330in reaction to his depression. In fact, his concern over his homosexual tendencies was a factor in seeking treatment. Because he sought treatment for his homosexual activity as a symptom of his depression, Dr. Cobo’s position is similar to the alcoholic seeking treatment for alcoholism in the example provided by the majority.
Nor do I agree with the majority that there are other grounds upon which to find contributory negligence. Dr. Cobo initially told defendant he did not wish to take medication because, as a surgeon, he could not afford to be sedated. However, because defendant improperly diagnosed Dr. Cobo, Dr. Cobo was never told his condition was biological in nature. Because Dr. Cobo was never told that his condition would not respond to psychotherapy, but would respond favorably to medication, Dr. Cobo could not make an informed decision about the medication and his initial reluctance to being treated with medication cannot be held to be negligent. Nor does Dr. Cobo’s request that defendant keep no notes amount to contributory negligence. Regardless of whether defendant kept notes, he would still have been treating Dr. Cobo with psychoanalysis, which the evidence showed was an improper and ineffective method of treatment.
I find no merit to defendant’s remaining arguments and would therefore allow the jury’s verdict to stand. Accordingly, I would vote No Error.