dissenting:
As a general proposition, I might agree with Judge King that “a plaintiff who fails to request either a special verdict or a general verdict with interrogatories, in a negligence action where the defense both denies negligence (or, relatedly, proximate causation) and asserts an affirmative defense, is es-topped from contending on appeal that the jury may have relied on an impermissible affirmative defense theory if the evidence supports an alternative rejection of primary negligence by the jury.” Ante at 1145. If we are in the business of redefining issues (as the majority has done) I could just as easily agree with the general proposition that a defendant who, in a negligence action, bears equal responsibility with a plaintiff for requesting a special verdict, is estopped from contending on appeal that the plaintiff has waived the right to challenge a misleading instruction, unsupported by the evidence, and submitted to the jury over objection. Moreover, in the better role of valor, I would hope that this court would refrain from gratuitously announcing a new rule (however provocatively foreshadowed by prior judicial ruminations) and, at least for one of my colleagues, apply it retroactively, to the benefit of one party and the detriment of the other, where both parties bear equal responsibility for what gives every indication of being an obviously erroneous verdict.
Therefore, if we are to embrace the first general proposition of estoppel, I would apply this rule to future cases only. However, I am hesitant to adopt any rule which was not fully briefed or argued before this court. One day before oral argument in a letter to the court dated November 9, 1993, appellees first raised the estoppel issue addressed in *1153Nimetz v. Cappadona, 596 A.2d 603 (D.C.1991). Neither appellant nor appellee has briefed the estoppel issue nor has this court heard informed argument regarding the merits of adopting such a sweeping rule that will have such a dramatic effect on the trial court and bar. Additionally, the individual circumstances of this case merit an evaluation of the contributory negligence instruction. Since the contributory negligence instruction was flawed and not supported by the record, I would reverse the judgment and remand for a new trial. I respectfully dissent.
I.
In Sinai v. Polinger Co., 498 A.2d 520, 523 n. 1 (D.C.1985), this court reviewed a challenge to the propriety of a contributory negligence instruction under circumstances where an injured tenant sought damages against a property owner. In upholding a verdict for the landlord, we reasoned that the evidence showed that the tenant’s own negligence was a substantial factor in causing the injury. In a footnote we observed that, because a general verdict was returned, we did not know whether the jury even reached the question of contributory negligence and therefore we left open the issue of whether in future cases this court would require “that a plaintiff make some showing of special prejudice before he will be permitted to challenge the verdict based on issues the jury may well never have reached, where the plaintiff, as in this ease, failed to request that special interrogatories be submitted to the jury.” Id. at 523 n. 1; see also District of Columbia v. Bethel, 567 A.2d 1331, 1334 (D.C.1990) (observing that the court need not decide the estoppel issue). In Sinai, Judge Nebeker, concurring separately, declined to deal with the merits of the alleged error. Instead he urged the court to adopt the rule it finally adopts today: that a plaintiff who wishes to challenge a general verdict based on an alleged defect in an affirmative defense must demonstrate prejudice, and that the verdict rested on that defense, either through a special verdict or interrogatories. 498 A.2d at 533-34 (Nebeker, J., concurring in result).
Six years later in Nimetz v. Cappadona, supra, we considered factual circumstances where the plaintiff had asked for a special verdict on each of the six theories of liability. The defendant objected to the sixth theory of liability and to the request for a special verdict. The trial court decided to use a general verdict form. Id., 596 A.2d at 606. On appeal by the defendant this court adopted
the rule that a defendant who fails to request a special verdict form in a civil case will be barred on appeal from complaining that the jury may have relied on a factual theory unsupported by the evidence when there was sufficient evidence to support another theory properly before the jury
Id. at 608.
It is apparent from Sinai and Bethel, that prior to Nimetz, this court had not adopted any form of an estoppel rule. Thus, it was not until the ruling in Nimetz that a party might remotely be considered on notice that it might be estopped from appealing an alleged erroneous instruction affecting liability when it had not requested a special verdict or interrogatories. However, the Nimetz decision, on its face, appears to be limited to defendants and in particular to defendants who object to a request for a special verdict. Thus, the notice that any plaintiff (let alone a plaintiff who did not object to a request for a special verdict) would be estopped from raising an erroneous instruction issue because of a general verdict, is attenuated. Therefore, I am hesitant to apply a new rule, or at least the first clear statement of an estoppel rule for a plaintiff, to this case.
Moreover, the instant case can readily be distinguished from the court’s decision in Nimetz. Here neither the plaintiff — decedent’s administratrix (Ms. Robinson) — nor Dr. Stock requested a special verdict.1 The *1154equal blame of the plaintiff and defendant in not pursuing a special verdict was recently recognized by this court as a paramount distinguishing factor in Howard Univ. v. Baten, 632 A.2d 389, 393-94 (D.C.1993).
In Baten, the defendant objected to a damages instruction. The plaintiff requested a special verdict, but then withdrew the suggestion after an extensive conversation with the trial judge. The defendant never objected to the request for a special verdict since the plaintiff withdrew the request, nor did the defendant request a special verdict on its own. On appeal, the plaintiff argued that “Howard waived the issue of the erroneous damage instruction under this court’s decision in Nimetz v. Cappadona, 596 A.2d 603 (D.C.1991).” Baten, supra, 632 A.2d at 393. This court determined “that it would be unfair to apply the waiver rule of Nimetz on these facts.” Id. at 632 A.2d 394. The court stated that “in this case — unlike in Nimetz— we are not convinced that the defendant bore primary responsibility for the fact that the case was submitted to the jury without a special verdict form on damages.” Id. The court stated that the plaintiff shared at least equal responsibility with the defendant for the court’s failure to have a special verdict and therefore reversed and remanded the case for a new trial based on the erroneous instruction.
This case has many similarities with Baten. Both parties in this case share the responsibility for failing to ask for a special verdict. Neither party asked for a special verdict. In fact, unlike in Baten, neither the plaintiff nor the defendant initially requested a special verdict only to withdraw its request later. This case is also unlike Nimetz, where one party requested the special verdict and the other party objected to the special verdict. In Nimetz, the defendant tried to rely “on appeal bn the very uncertainty he helped foster.” 596 A.2d at 606. As noted, here, neither party requested nor objected to a special verdict. Since both parties share the responsibility for failing to insure a special verdict, this court should, as it did in Baten, determine that it would be unfair to apply the estoppel rule to one party.
II-
Today one of my colleagues would bar the appellant from challenging any aspect of the contributory negligence instruction. This forecloses an almost sacred right of appeal to a plaintiff who should not be forced to bear alone the brunt of a jury’s confusion in the complex arena of medical malpractice. Even a cursory examination of the instruction reveals that it may have been misleading in failing to explain the legal time strictures attendant to the concept of contributory negligence and to give guidance on the applicable standard of care. There is moreover a serious question as to whether the jury’s verdict is supported by the evidence. It is important to all parties in this most specialized and sensitive area of litigation that this court examine any impact that the instruction might have had on the jury.
As Judge King states:
The only negligence attributed to Dr. Stock was his asserted failure to properly respond during the course of the 9:00 a.m. telephone call. In his defense, Dr. Stock contended that Jones herself [the decedent] was negligent in not following the post-endoscopy instructions. Specifically, he argued that Jones failed to inform him of the severity of her symptoms.
Ante at 1142.
At trial, the plaintiff (the administratrix and daughter of Mrs. Jones) objected to the contributory negligence instruction arguing that the daughter, who placed the call, could not be negligent. According to Judge King, the plaintiff also unsuccessfully requested that the jury be instructed “that the only conduct that could be considered as being contributorily negligent was the asserted failure to inform Dr. Stock, during the 9:00 a.m. telephone call, of the true nature of Jones’s condition.”
At the - outset we examine certain general principles. This court stated in Sinai (not a medical malpractice case):
In evaluating the propriety of a contributory negligence instruction, the trial court *1155must focus upon the objective reasonableness of the plaintiffs conduct, and must determine whether the defendant has presented evidence that the plaintiffs behavior in encountering the risk departed from the standard of care that is to be expected of the reasonable person in the plaintiffs position. The plaintiffs departure from the normal standard of conduct (his “fault”) deprives him of the right to assert that the defendant was also at fault. A contributory negligence instruction is appropriate only if the defense has borne the burden to put forth some evidence upon which a jury could find that the plaintiff, by encountering the risk created by the defendant’s breach of duty, departed from an objective standard of reasonable care.
498 A.2d at 524.
Moving to the ease law involving medical malpractice, “[cjontributory negligence is the failure to act with the prudence demanded of an ordinary reasonable person under like circumstances.” Stager v. Schneider, 494 A.2d 1307, 1311 (D.C.1985). This court has stated that “a patient has a duty to cooperate with her doctor in proper diagnosis and treatment.” Id. at 1312. However, “in the context of medical malpractice, the superior knowledge of the doctor with his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the defense.” Morrison v. MacNamara, 407 A.2d 555, 567 (D.C.1979).
We must evaluate the propriety of the contributory negligence jury instruction given here in light of the nature and time of the claimed negligence as well as any departure from the relevant standard of care, along with the sufficiency of the evidence. Each one of these areas may reveal prejudicial trial error requiring a new trial.
A.
Plaintiff does not allege negligence prior to the 9:00 a.m. telephone call between the patient’s daughter and Dr. Stock.2 Therefore, decedent’s behavior prior to the 9:00 a.m. telephone call is irrelevant to the contributory negligence inquiry.
[Mjany courts have held that the defense of contributory negligence in a medical malpractice action is inapplicable when a patient’s conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim or when the patient’s conduct contributes to an illness or condition for which the patient seeks the medical attention, care, or treatment on which a subsequent medical malpractice claim is based.
Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178, 184-85 (1990).
As another court noted:
conduct prior to an injury or death is not legally sufficient in an action for damages like this, unless it is a legal or proximate cause of the injury or death — as opposed to a cause of the remote conditions or occasion for the later negligence. So it is with conduct of a patient which may have contributed to his illness or medical condition, which furnishes the occasion for medical treatment. That conduct simply is not available as a defense to malpractice which causes a distinct subsequent injury — here, the ultimate injury, wrongful death.
Matthews v. Williford, 318 So.2d 480, 483 (Fla.Dist.Ct.App.1975); see also Whitehead v. Linnkous, 404 So.2d 377, 379 (Fla.Dist.Ct.App.1981) (“A remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence.”). “[A] physician may not raise the defense of contributory negligence where the plaintiffs negligence occurred pri- or to the alleged act of malpractice.” Cheek *1156v. Domingo, 628 F.Supp. 149, 151 (D. Virgin Islands 1986); see also Overstreet v. Nickelsen, 170 Ga.App. 539, 317 S.E.2d 583, 585 (1984) (“The cause of the injury for which [plaintiff] sought treatment has absolutely no relevancy to whether she somehow contributed to any of the subsequent injuries sustained as the result of [defendant’s] allegedly negligent treatment, diagnosis or abandonment of her.”).
As I have noted, decedent’s actions prior to the 9:00 a.m. phone call are irrelevant to the negligence action or the defense of contributory negligence. The alleged malpractice occurred during that phone call. Moreover, a patient’s subsequent aggravation to an injury is not contributory negligence, rather it acts to mitigate damages. See Cheek, supra, 628 F.Supp. at 151 (failure to obtain follow up treatment resulting in infection and amputation serves only to mitigate damages and is not contributory negligence); Santoni v. Schaerf, 48 Md.App. 498, 428 A.2d 94, 99 (1981) (patient conduct after the negligence which adds to the effects mitigates the damages), rev’d on other grounds sub nom. Moodie v. Santoni 292 Md. 582, 441 A.2d 323 (1982); Bird v. Pritchard, 33 Ohio App.2d 31, 62 O.O.2d 96, 291 N.E.2d 769, 771 (1973) (“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.”).
Here the trial court’s jury instruction was as follows:
As to the plaintiffs decedent, Lela Jones only, and this is a little different from what I said at the opening part of the trial, but now that we have all the evidence in, the claim — there is a claim of contributory negligence, but it applies to Lela Jones, not to the plaintiff who is sitting before you here in court. Just as to her.
A plaintiff cannot recover if her negligence is a proximate cause of her injury. The defendant has the burden of proving that the plaintiffs negligence was a cause of the plaintiffs injury. That’s contributory negligence which you need to consider if you get that far.
This jury instruction allowed the jury to consider conduct before and after 9:00 a.m. The conduct prior to the alleged negligence cannot constitute contributory negligence and the conduct after 9:00 a.m. can only be considered by the jury for mitigating damages. Since the jury instruction did not adequately confine the jury’s considerations to only the defendant’s action during the 9:00 a.m. call, and instead allowed the jury to consider the descendant’s actions prior to and after the alleged negligence, it was misleading and contrary to malpractice contributory negligence law.3 Therefore, the jury instruction was misleading and merits reversal for a new trial.
B.
In this situation the absence of guidance as to the patient’s standard of care is likewise a critical issue. “[A] patient does not have a duty to diagnose his own condition as he can reasonably expect the physician to ask the proper questions.” Fall v. White, 449 N.E.2d 628, 634 (Ind.Ct.App.1983). However, “[t]he patient is contributorily negligent if a reasonably prudent person would know that the history was false and misleading.” Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 255 (Ky.Ct.App.1979).
Thus, an instruction for contributory negligence should state “that a patient has a duty to exercise reasonable care in providing medical information” and the standard of conduct is “that of a reasonably prudent person under like or similar circumstances.” Fall, supra, 449 N.E.2d at 634; cf. Stager, supra, 494 A.2d at 1311 (“Contributory negligence is the failure to act with the prudence demanded of an ordinary person under like circumstances.”). In Sinai this court, not in a medical malpractice ease, upheld a valid con-*1157tributary negligence instruction.4 The instruction stated in part:
Did he do or fail to do something which a person using ordinary care would do or not do. Remember that ordinary care means that care, caution and attention which a reasonable person would exercise under similar circumstances. Bear in mind that the similar circumstances are those which confronted the doctor on December 2nd. If you find that he was confronted with an emergency situation, he is not held to the same conduct as one who had an opportunity to reflect on his situation.
Sinai, supra, 498 A.2d at 523-24 n. 2.
The jury instruction in the instant case is measurably short of the adequate contributory negligence instruction in Sinai. Not only was the instruction not confined to the 9:00 a.m. phone call, but it failed to provide any standards for evaluating contributory negligence. Here, the instruction only stated that “A Plaintiff cannot recover if her negligence is a proximate cause of her injury.” There was no mention of what a reasonably prudent patient might do under like circumstances nor was there any information regarding the relationship between the physician and patient regarding the duty to provide information for diagnosis. This failure to include any duty or standard of care, which is necessary for the jury’s adequate consideration of the issue of contributory negligence, was erroneous and merits reversal for a new trial.
C.
Focusing on the relevant time in question, I examine the sufficiency of the evidence in light of case law. A patient’s contributory negligence “must be concurrent with that of the physician.” Santoni, supra, 48 Md.App. 498, 428 A.2d at 99.
To constitute a bar to a suit for malpractice, the contributory negligence of the patient must have been an active and efficient contributing cause of the injury made the basis of the patient’s claim; it must have been simultaneous and co-operating with the alleged fault of the defendant, must have entered into the creation of the cause of action and must have been an element in the transaction which constituted it.
Sendejar v. Alice Physicians & Surgeons Hosp., Inc., 555 S.W.2d 879, 885 (Tex.Ct.App.1977).
As another court has stated:
Consequently, to be considered as and constitute contributory negligence in a medical malpractice action, a patient’s negligence must have been an active and efficient contributing cause of the injury, must have cooperated with the negligence of the malpractitioner, must have entered into proximate causation of the injury, and must have been an element in the transaction on which the-malpractice is based.
Jensen, supra, 459 N.W.2d at 186-87. In the instant case the decedent never spoke with the physician at 9:00 a.m. Initially, one wonders how a patient who did not speak to a doctor at the relevant time could be contributory negligent in failing to give information for a complete diagnosis. This fact alone makes it hard to suggest that the decedent could be contributorily negligent. In fact, the failure to ask to speak to the patient following surgery might constitute negligence. Especially, in this case, where the decedent was an elderly woman who had complained of pains following surgery. However, assuming that the daughter was acting on the decedent’s behalf, in the role of a guardian, it is unclear how what was conveyed over the telephone could constitute contributory negligence. The perforation itself was not the subject of negligence;5 the only negligence asserted was that involving the 9:00 a.m. telephone call. Therefore, the daughter’s statement over the phone is the only potential conduct that the doctor could claim as contributory negligence.
*1158“Whether a physician is negligent in making a diagnosis must be determined in light of the existing circumstances including the facts then known to him, rather than on the basis of facts which are revealed by later developments.” Mackey, supra, 587 S.W.2d at 254. “The failure of a physician to receive a full and accurate history from the patient may provide a basis for finding that the physician was not guilty of malpractice.” Id. A patient is
under no general duty to diagnose her own condition or to volunteer information. She could reasonably expect that the physicians and nurses would ask the proper questions. Unless the physicians or nurses exercised ordinary care in obtaining the history, the patient’s failure to communicate a particular aspect of his medical history ordinarily will not constitute contributory negligence.
Id. at 255; see also Fall, supra, 449 N.E.2d at 633. Yet,
[t]he patient is contributorily negligent if a reasonably prudent person would know that the history was false and misleading. When the physician or nurses are negligent in obtaining the history, the patient is contributorily negligent only if he knows the physician is unaware of a condition which imposes a risk of danger to the patient and his failure to inform the physician of the condition is unreasonable under the circumstances.
Mackey, supra, 587 S.W.2d at 255-56; see also Skar v. City of Lincoln, Nebraska, 699 F.2d 253, 260 (8th Cir.1979) (contributory negligence was a proper jury question when patient “gave materially false and misleading information”); Fall, supra, 449 N.E.2d at 628 (a contributory negligence instruction was appropriate when the patient failed to provide complete and accurate information to the doctor).
“ ‘To establish the defense of contributory negligence the burden is upon the defendant to prove by a preponderance of the evidence that the plaintiff was negligent and that such negligence contributed in some degree as a proximate cause of the injury to the plaintiff.’ ” District of Columbia v. Sterling, 578 A.2d 1163, 1165 (D.C.1990) (quoting May v. Washington, Virginia & Maryland Coach Co., 197 A.2d 267, 268 n. 1 (D.C.1964)). Failure to provide symptoms to a doctor does not constitute contributory negligence, rather it may result in no negligence on the part of the physician. Mackey, supra, 587 S.W.2d at 254 (citing Johnson v. St. Paul Mercury Ins. Co., 219 So.2d 524, 528-29 (La.Ct.App.1969)); 36 A.L.R.3d 1349 (1969); Amdur v. Zim Israel Navigation Co., 310 F.Supp. 1033, 1036 (S.D.N.Y.1969); Tangora v. Matanky, 231 Cal.App.2d 468, 42 Cal.Rptr. 348 (1964). Only if a patient’s information or symptoms are false or misleading after being questioned, is a physician entitled to a contributory negligence instruction. Mackey, supra, 587 S.W.2d at 249 (patient gave false and misleading case history); Skar, supra, 599 F.2d at 253 (most of information provided to physician was untrue); Fall, supra, 449 N.E.2d at 628 (patient, when asked, told doctor he did not have chest pains when he did).
“Where, however, there is no evidence from which a reasonable juror could find that the plaintiff [was contributorily negligent], the question is one of law for the court.” Morrison, supra, 407 A.2d at 568; see also Bell v. Jones, 523 A.2d 982, 996 (D.C.1986) (reversing holding of contributory negligence for lack of evidentiary support). It appears clear from a review of this record that the defendant did not provide the necessary evidence to establish a claim of contributory negligence during the 9:00 a.m. telephone call. Dr. Stock testified that he was not informed about any pains or other complaints besides gas during the conversation with the decedent’s daughter. When questioned about whether he asked the daughter to describe the gas symptoms he responded negatively: “Since I heard nothing about pain or any other symptoms, I didn’t ask for the description, no.”
Thus Dr. Stock’s testimony does not support a claim of contributory negligence; if it merits any consideration at all, it would be relevant to the issue of his own negligence. There is no assertion by the doctor that the decedent’s daughter lied about the symptoms initially or upon further questioning by the *1159doctor.6 Similarly the plaintiffs testimony does not support contributory negligence, Rather, there is simply a factual dispute regarding which symptoms were related to the doctor — a factual dispute to be resolved by the jury in determining whether the doctor’s diagnosis constituted negligence or not.7 Without supporting evidence the instruction as to contributory negligence constituted reversible error.
III.
The misleading nature and confusion regarding the contributory negligence instruction is readily apparent on this record. The facts in this case were hotly disputed. Doctor Stock’s testimony, if believed, might have established the absence of his own negligence. However, since the only negligence at issue was that his default at the time of the 9:00 a.m. phone call, the only contributory negligence a jury could consider was the patient’s or her agent’s actions during that time. There was no evidence of such contributory negligence. If the jury believed the story of the plaintiffs witnesses, a finding of negligence would have been reasonable. If the jury believed Dr. Stock’s version of the telephone conversation, a finding of no negligence would have been reasonable. We do not know what the jury believed since neither party asked for a special verdict. Since the contributory negligence instruction was deficient in failing to explain the patient’s standard of care, and to limit the jury’s consideration of contributory negligence to the time of negligence, and since in any event the record reveals no evidence of contributory negligence, this case should be reversed and the matter remanded for a new trial,
. In Nimetz the plaintiff requested a special verdict, but the defendant opposed the request. In Nimetz the defendant was attempting to double-dip by objecting to the sixth theory of liability and the special verdict. Since the jury's verdict was going to be based on a general verdict the defendant thought it could appeal a potential verdict for the plaintiff based on the erroneous inclusion of a theory of liability, while at the same time avoiding a special verdict which might reveal that a jury had found liability based on *1154one of the five valid theories of liability in the case.
. There was some evidence that Dr. Stock was negligent in his post-operative treatment from the time the appellant complained of “abdominal cramping and discomfort” following the operation until her death. However, this theory was abandoned at trial and on appeal both parties agree that the only negligence claimed was during the 9:00 a.m. telephone call. To the extent Judge Farrell relies upon Dr. Brownlee’s testimony regarding ongoing negligence by Dr. Stock beginning after the operation, I would assert that Mrs. Jones's alleged contributory negligence would be relevant as a mitigating factor and not as a bar to recovery.
. Unlike Judge Farrell, I believe an instruction limiting the jury’s use of Mrs. Jones’s conduct during the night solely for deliberation on the issue of proximate cause could be carefully constructed. Appellant disputes the expansive nature of the contributory negligence instruction not the relevance of Mrs. Jones's conduct prior to 9:00 a.m. towards proximate cause.
. The plaintiff in Sinai, confronted an obviously crazed individual who cursed and slapped him, followed his assailant to a parking lot and unsuccessfully sought to subdue him.
. The plaintiff's expert witness conceded this fact on the grounds that this was a known risk of the examination, a factor which would appear to place more of an onus on the doctor in providing follow-up care.
. An example of a case where the medical staff was deceived is Rochester v. Katalan, 320 A.2d 704 (Del.1974). In Rochester the decedent had been taken to the emergency room for treatment. The decedent and his friend “claimed to be heroin addicts suffering withdrawal symptoms” and “requested medication for [his] discomfort." Id. at 706. The decedent’s physical symptoms supported his claimed withdrawal — he was abusive and uncooperative, complained of stomach pains, moaned, his body was shaking and his eyes were glassy. The doctor administered a dose of methadone. When decedent's behavior became violent and he requested more methadone, a second dosage was provided. The patient died during the night of multiple drug intoxication. The decedent had never been a heroin addict and had failed to tell the hospital staff that he had consumed some beer and taken librium pills. Id. at 706-07. The question presented to the court was whether the decedent contributed to his own death. The court assumed that the defendants were negligent. The court concluded that the decedent was contributorily negligent because he put on an act and lied to the hospital staff. Id. at 708.
. Unlike Judge Farrell, I do not view Dr. Stock’s version of events as establishing contributory negligence, but as establishing the absence of negligence. Mrs. Jones, an elderly woman recovering from surgery, could not depart from any objective standard of reasonable care when she did not lie about, but rather only provided some symptoms, and when Dr. Stock failed to ask any follow-up questions about the symptoms or observe any symptoms she was experiencing.