Can The Patient Be Liable in a Medical Malpractice Case?

In some medical malpractice cases, the patient can be found to have contributed to the injury.

In most cases of medical treatment, a doctor or medical professional will order a patient to play a part in her or her own treatment -- by taking certain medications, eating, or not eating certain foods, avoiding strenuous work or exercise, or taking care of treated areas during recovery from an injury.

What happens if a patient doesn't do as ordered? Is he or she also liable for any injury suffered as a result?

Comparative Negligence

Medical malpractice laws vary by state, and one of the main differences among those laws is how patient negligence is applied to compensation for a medical injury. Comparative negligence, as it's called in tort law, is the idea that an injured person’s compensation should be reduced according to his or her share of blame for causing or contributing to the injuries suffered. For example, if a patient is 50% responsible for her injury, then she may only recover 50% of the associated damages in an injury claim.

Take, for example, a case where a doctor orders a patient with a broken pelvic bone to spend three months without walking or applying pressure to the injured leg. Additionally, the doctor failed to set the broken bone properly, leaving the patient with a bowed leg. The patient then re-breaks the leg by walking on it after two and a half months. If the patient had not walked on it, as instructed by the doctor he would not have broken it. However, if the doctor had set the bone properly, it also would not have broken. If it is established that the patient is 40% at fault for the injury, then the doctor would be liable for only 60% of the associated costs of the injury.

Negligence Laws Vary by State

The way patient and doctor negligence is handled varies from state to state, and each has modified the idea of comparative negligence. And some states still follow an antiquated and harsh rule called “contributory negligence,” under which an injured person whose own negligence was a factor in their case to any degree (even 1%) can recover nothing at all from other at-fault parties.

For the basic law in each state, see this chart.

In most cases of medical negligence though, the fault is 100% on the doctor or medical professional, as they are held to a higher standard of care, and cases of shared patient/doctor negligence are rare.

Most commonly, the defendant in a medical negligence claim may attempt to use comparative/contributory negligence as a defense to the suit, but will be unable to establish the necessary link between the patient’s supposed negligence and the harm suffered.

Talk to a Lawyer

Need a lawyer? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NOLODRUPAL-web2:DRU1.6.12.2.20161011.41205