The Texas Supreme Court recently held, for the first time, that a patient's provision of an incomplete or inaccurate medical history could be considered in determining whether a health care provider was negligent. The court also held that the patient's negligence would be evaluated based upon the patient's attention, perception, memory, knowledge, intelligence, judgment, language skills, and specialized knowledge, as well as the length of physician-patient relationship, urgency of the situation, frequency of previous examinations, patient's condition and similar factors relating to the particular patient, as well as that of an ordinary person.

While diagnosis will primarily be a health care professional's responsibility, a patient's failure to give an accurate medical history can constitute contributory negligence. Patients must cooperate in the diagnosis and treatment of their illness by accurately reporting their symptoms and medical history, unless the condition is readily apparent or the patient is unable to report the symptoms. However, a patient will not be considered negligent for reporting symptoms that don't fit the usual pattern of a disease process. Likewise, patients also owe a duty of cooperation to treating physicians who assume the duty to care for them.

A patient must exercise “ordinary care under all surrounding circumstances” in fulfilling his or her duty of cooperation. The court held that the specificity of the health care provider's questions and the patient's responses is dependent upon many factors, including any specialized knowledge that the patient has. Consequently, an ordinary patient's failure to report the origin of his or her pain will not be evidence of negligence. However, in this case, the patient was a physician who, while testifying, emphasized his superior knowledge. The court found that the physician-patient's medical training must be taken into account to determine whether the physician as the patient accurately reported his condition to the treating physician, even though the physician patient was not acting as a physician. A patient's expertise, special skills, knowledge and training will be considered in determining whether the patient failed to exercise ordinary prudence in cooperating with his or her medical diagnosis and treatment. Jackson v. Axelrad, No. 04-0923, slip op. (Tex. Apr. 20, 2007).