Getting medical care is not always a straightforward process. In many cases, a patient leaves their doctor’s appointment with more questions than when they came in. What was the condition called again? Where do I pick up the medication? What are the side effects of the new drugs? When should I come back?
The healthcare system is pushing toward doctors seeing more patients in a shorter period of time. This means a doctor may rush through an appointment and leave a lot of the work to nurses or other support staff. It can be hard to get some one-on-one face time with the doctor without feeling rushed or like you are being an inconvenience.
As a result, many patients are unclear about their medical care and treatment plans. If something goes wrong, the doctor’s office may try and blame the patient for making a mistake. Even if a patient is partly responsible for a medical error, the doctor may still bear some responsibility for the damage done. If you have questions about whether you might be responsible for a medical injury, contact an experienced medical malpractice law firm about your case.
What Can a Patient Do to Contribute to Injuries?
Patients do have some responsibility in their own health care decisions but many patients just defer to what their doctor said. Patients have a duty to provide accurate information to doctors about their medical history, symptoms, medications, and family health history. Patients are supposed to follow the doctor’s instructions for treatment and let the doctor know if they are unable to follow the instructions.
If there is anything a patient doesn’t understand, they should get clarification. However, getting clarity is not always so straightforward. It is also not unusual for a patient to not listen to what a doctor tells or not understand the doctor’s advice because:
- They can’t hear the doctor;
- The medical lingo goes over the patient’s head;
- The patient can’t understand the doctor’s accent; or
- The doctor is not making sure the patient really understands.
Patients do not have the medical education, training, experience, or resources of a licensed medical professional. Patients rely on doctors and medical staff to help them diagnose and treat any medical conditions. The doctor may try and avoid responsibility for any medical errors but doctors are held to a higher standard because of their profession.
Example of Doctor/Patient Confusion
There is also a lot of potential for confusion in a doctor’s instructions. For example, what if a doctor says to a patient, “we’ll follow up in a couple of months,” but the doctor’s office does not make an appointment? The patient may expect to hear from the doctor’s office for the follow-up appointment but the doctor may be expecting the patient to make the appointment.
In another example, after a visit to the emergency room for severe stomach pain, the doctor sends the patient home and tells them to come back if it gets worse. What if the patient continues to suffer the same level of pain for days but the severity is not worse? Is that a reason for the patient to go back to the doctor? Is the doctor going to criticize the patient for coming back with no increase in pain or is the doctor going to say, “of course, you should come in if it is continuing,” which was never part of the doctor’s instructions?
If a patient directly disregards a doctor’s advice or deliberately gives misinformation to the doctor, the doctor may have a claim that injuries caused by the patient’s actions were the cause of the injury. However, in many cases, the situation is not so clear. A doctor may have given advice that the patient took as a recommendation but not a direction. A doctor may have thought they told the patient but never documented the patient interaction.
Who Is to Blame for Miscommunication?
If you do not want to follow through with a medical malpractice claim because you think you are partly responsible, talk to a malpractice legal team first. Many patients blame themselves for something that was not their fault. It is important to hold the medical professionals and hospitals accountable for their dangerous actions.
A malpractice lawsuit can help the victim recover damages and could also help protect other vulnerable patients in the future. Talk to a medical malpractice attorney to understand your rights for recovery and explore your legal options.
What Is Comparative Negligence?
Comparative negligence is a legal term for situations where the injury victim is partly responsible for an injury caused by someone else. For example, if someone gets into a car accident, they may file a lawsuit against the other driver for damages. However, the other driver may claim the driver filing the lawsuit was speeding at the time. It may be left up to the jury to decide who was responsible and what their percentage of liability was for the injuries.
In a personal injury lawsuit, someone may be liable for damages if they were negligent in causing an injury. Negligence is the breach of a duty that causes harm and results in damages. If the injury victim can show the defendant was negligent in causing the injury, the defendant may have to pay money damages to compensate the victim.
In some cases, there can be multiple parties who were a cause of the injury or accident. This can include more than one defendant or the contributory negligence of the plaintiff. When the plaintiff is partially responsible for their injuries, it may limit how much they can recover in damages.
Types of Contributory Negligence
In a personal injury lawsuit or medical malpractice claim, the defendant can put forth evidence of the plaintiff’s “contributory negligence.” Under contributory negligence, the plaintiff may be limited in how much they can recover in damages. Different states follow different rules when it comes to contributory negligence, including:
With contributory negligence, if the jury finds that the plaintiff in any way contributed to the incident that caused the injury, the plaintiff cannot recover any damages. This is the most extreme reading of comparative negligence and can be extremely unfair or harsh to the injury victim.
For example, if a driver suffers a permanent disability and millions in damages from a car accident, they can file a personal injury lawsuit against the other driver. If the other driver claims that the driver’s vehicle maintenance was a cause of the damage, it may go to the jury to decide negligence. If the injury victim was found to be 1% responsible and the other driver was 99% responsible, the driver could not recover any damages from the case.
Pure Comparative Negligence
Pure comparative negligence offsets the amount of damages recovered based on the plaintiff’s level of fault. If the plaintiff is contributorily negligent in causing their injuries, the damages would be reduced by the patient’s percent of fault, as determined by the jury. Pure comparative negligence states include places like California and New York.
For example, a resident of an apartment building fell down some stairs in the building because the landlord failed to fix the lighting to make it safe. However, the landlord said the plaintiff fell down the stairs because they were carrying groceries and dropped some grapes, slipping on the fruit. If the injury victim suffered $100,000 in damages and the jury found the plaintiff was 60% responsible and the landlord was 40% responsible, the landlord may have to pay $40,000 in damages.
Modified Comparative Negligence
Modified comparative negligence takes an approach between pure comparative negligence and contributory negligence. Under modified comparative negligence, the plaintiff’s damages can be reduced by their percentage of fault. However, if the plaintiff is more than a certain level of fault (generally about 50% at fault or more), then the plaintiff recovers no damages. Different states have a different threshold for fault recovery under modified comparative negligence. The level of fault required can be:
For example, in a 50% comparative negligence state, the plaintiff cannot recover damages if they are at least 50% at fault. If the plaintiff files a claim for $100,000 in damages and the jury finds the plaintiff is half at fault and the defendant is also 50% at fault, the plaintiff cannot recover damages.
In a 51% comparative negligence state, the injury victim cannot recover damages if they are at least 51% at fault. If the plaintiff files a claim for $100,000 in damages and the jury finds the plaintiff is half at fault and the defendant is also 50% at fault, the plaintiff can recover $50,000 in damages from the defendant. However, If the jury finds the plaintiff is 51% at fault and the defendant is 49% at fault, the plaintiff cannot recover any damages.
Comparative Negligence in Chicago Medical Malpractice Cases
Illinois is a 51% comparative negligence state. In a Chicago medical malpractice, a plaintiff files a claim for $500,000 in damages for an anesthesia injury case. The anesthesiologist claims the plaintiff is also responsible because they did not disclose an allergy.
If the jury finds the patient and anesthesiologist are both 50% responsible for the injury, the plaintiff could recover $250,000 in damages from the anesthesiologist. However, if the patient was just a little more liable than the anesthesiologist (51% for the plaintiff and 49% for the doctor), the patient could not recover damages.
Contributory Negligence in Baltimore and Washington, D.C. Medical Malpractice Cases
There are only a handful of states that follow the contributory negligence policy for injury claims, including:
- North Carolina
- District of Columbia
One of the reasons why so few states follow this extreme rule is that it can unfairly punish the injury victim and limit any recovery, even when their contribution was very small. For example, if a patient in Washington, D.C. suffers a surgical complication in a hospital, the surgeon could claim the patient was partly responsible because they did not fully disclose their medical history. If the jury agrees and finds that the patient was 5% at fault and the surgeon was 95% at fault, the patient may be left without recovery for their injuries.
Just because a doctor claims the patient is responsible does not mean the patient will lose their chance at recovery. It is up to the jury to look at the information and evidence presented. If the jury believes that the patient did something wrong and the patient’s breach was a contributory cause of the injury, it could be considered contributory negligence.
For example, if a doctor claims the patient should bear responsibility for the injury because the patient did not disclose a grandparent had heart disease, that information may not have been relevant to the patient suffering a left-behind surgical instrument in a surgical malpractice lawsuit. The patient would likely still be able to recover their full damages if the surgeon was responsible.
Philadelphia Medical Malpractice and Comparative Negligence
Pennsylvania is also a modified comparative negligence state that follows the 51% rule. In a Pennsylvania medical malpractice, the patient files a lawsuit against a radiologist for a misdiagnosis of cancer, with damages for $2 million. The radiologist says they are not responsible because it was the patient who didn’t follow the doctor’s orders exactly.
A jury hears the case and finds that both the patient and radiologist were partially responsible for the medical error and misdiagnosis. If the jury finds the patient and radiologist are both 50% responsible for the injury, the plaintiff could recover $1 million in damages from the radiologist. However, if the patient was found to be 51% responsible and the radiologist was 49% responsible, the patient could not recover damages.
Will My Damages Be Reduced If I’m Responsible for Medical Injuries?
The damages available in a medical malpractice lawsuit may be reduced if you are found to be partially responsible for a medical malpractice error. The rules on contributory fault for a medical malpractice injury vary by state. Some states do not allow you to recover anything if you were at all responsible for your injuries. Other states will reduce your damages based on your level of fault.
Talk to a Medical Malpractice Lawyer if Your Doctor Is Claiming You Were Responsible
If you think you may have been partially to blame for your injuries, talk to a medical malpractice lawyer before giving up your rights. Some insurance companies try to claim that you are at fault as a way to reduce a settlement offer or get you to sign away your rights to file a malpractice lawsuit.
If you suspect you were the victim of a medical injury, you may be able to recover compensation for your injuries even if you were partially to blame. Call experienced cancer medical malpractice attorneys who can look at your case, answer your questions, and help you understand your legal options to file a claim against a negligent doctor. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.