Comparative & Contributory Negligence in Medical Malpractice

In some cases, a patient's own negligence may reduce (or eliminate) their available damages. Find out how your state's law on negligence may impact a medical malpractice case.

In a typical medical malpractice case, a patient sues a health care provider (doctor, hospital, etc.) for medical negligence, which basically means failing to use proper skill and care in providing medical treatment. But as a defense to the medical malpractice allegation, the health care provider may turn around and claim that the patient’s own negligence caused or contributed to his or her own harm, or prevented the patient from recovering.

The legal concepts of contributory negligence and comparative negligence come into play when the defendant claims that the patient is partly at fault for their injuries. And that’s when the behavior of the patient becomes an issue for the court in a lawsuit -- or for the insurance company in the investigation of a claim. If it turns out that the patient is partly responsible for causing or contributing to the harm suffered, then the patient’s economic recovery (compensation for medical malpractice) may be reduced or completely barred. If you are thinking about filing a medical malpractice suit, you will need to consider how your own actions might affect your case. This article takes a closer look at patient negligence in medical malpractice claims.

When a Patient's Negligence Matters

In medical malpractice cases where contributory or comparative negligence might be a factor, courts focus on what occurred once the patient sought treatment for the health problem or injury at issue in the case. Some common examples of patient negligence are:

  • providing false health history information
  • not following a health care provider’s instructions
  • lying about the cause and nature of injuries, and
  • doing things that aggravate the health problem or injury.

For example, let’s say you seek treatment for a persistent cough and lie to the doctor about tobacco use. The doctor then makes an incorrect diagnosis based on that information. In that case, your own negligence may affect the amount of damages you may recover. In contrast, if you skateboard without a helmet and are injured, and your doctor commits malpractice in treating that injury, your initial negligence in not wearing a helmet will not reduce your economic recovery in a medical malpractice claim. Basically, for the purposes of contributory or comparative negligence in medical malpractice, courts are interested in the patient’s behavior once the health care provider is involved.

When Can a Negligent Patient Still Receive Compensation?

Different states use different methods to determine whether a negligent patient can recover damages in a medical malpractice case. The methods fall into three categories: pure contributory negligence, pure comparative negligence, and modified comparative negligence. If you are considering filing a medical malpractice claim, you should know which method your state uses.

Pure Contributory Negligence

In a pure contributory negligence state, if you are at all at fault for the harm you’re alleging in a medical malpractice case, then you are barred from recovering any damages at all. For example, if in your claim you argue that your doctor delayed making the proper diagnosis of a health problem, but it’s a fact that you cancelled multiple follow up examinations, you’ll likely be deemed partially to blame for any resulting harm. In that case, you won’t be able to collect any compensation for medical malpractice.

This is a harsh rule for plaintiffs, and many states have phased out contributory negligence. But the rule is still in place in:

Last Clear Chance Doctrine in Pure Contributory Negligence States. The last clear chance doctrine, also known as the humanitarian doctrine, permits patients to recover despite their own negligence if their health care provider had the last clear opportunity to avoid the harm and failed to do so. Normally in a pure contributory negligence jurisdiction, a patient who is only 1% at fault is barred from recovering anything. If applicable, the last clear chance doctrine can prevent that harsh result. If you are somewhat responsible for your medical malpractice injury but your doctor had the last clear chance to prevent the injury, you may still be able to recover some damages in a medical malpractice case.

Pure Comparative Negligence

In a state that uses the pure comparative negligence rule, a determination must be made as to how much responsible the patient bears for his or her medical malpractice injury. The patient’s partial responsibility for the injury will not bar the patient from recovering against the health care provider. The percentage of the patient’s fault equals the percentage of damages that the patient will be barred from recovering. For example, if your doctor is 30% responsible for your medical malpractice injury and you are 70% responsible, you will recover 30% of the total damages stemming from the injury. The states that use this method are:

Modified Comparative Negligence

Modified comparative negligence bars the patient from recovering any damages for the medical malpractice injury if the patient is more than a certain percentage responsible for the injury. The states that do not use the pure contributory negligence method or the pure comparative negligence method use the modified comparative negligence method. Of these states that follow the modified comparative negligence approach, some have a 50% bar and some have a 51% bar. In those with a 50% bar, if you are at least as at fault for the injury as the doctor, you cannot recover any damages. In states with a 51% bar, you cannot recover damages if you bear more responsibility than the doctor bears.

The states that use the 50% rule are:

The states that use the 51% rule are:

Read More

To learn more about how your own actions can affect your medical malpractice case, see Can The Patient Be Liable in a Medical Malpractice Case?

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