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Medical malpractice occurs when a healthcare professional breaches the standard of care and consequentially injures a patient. Medical malpractice cases usually focus on an error committed by a health care professional after a negligent mistake or an act of incompetence causes a serious injury.
Defense attorneys of accused health care professionals will try to show that the act committed was not negligence and that the health care professional was not liable for the injury. If the patient had any responsibility for their own injury, medical malpractice defense attorneys can turn the claim and argue that the injury was either the shared responsibility of the patient or the full responsibility of the patient. The term for a patient contributing to their own injury is “contributory negligence.”
What Is Contributory Negligence?
Contributory negligence is negligent conduct on the part of the patient that contributed to harm the patient suffered and that was below the required standard required of patients to protect their own health. The philosophy of contributory negligence grew out of the belief that people who commit wrong acts should not be released from responsibility for those acts. But as the doctrine was increasingly used by defense attorneys to push blame onto victims, the severity and usefulness of the doctrine has diminished. Today a relatively small amount of medical malpractice cases in Maryland result in contributory negligence.
The first instance of contributory negligence was an 1809 English case Butterfield v. Forrester. The defendant, Forrester, had a pole against his house due to construction. Butterfield, the plaintiff, struck the pole while riding his horse and fell off, sustaining injuries. A witness said that Butterfield was riding too fast at the time of the accident. With the judge’s backing, the jury found Forrester liable for his own injury.
In a 1956 case, a patient was denied compensation for a delayed tuberculosis diagnosis because years earlier the patient had failed to correctly fill out a form that would have allowed certain x-rays to be sent to the patient’s physician.
Generally, the patient’s actions (or inaction) must have a direct link to the injury sustained.
Responsibilities Of The Patient To Avoid Harms Caused By Medical Treatments
Patients share some of the responsibility for their treatment. They are required to provide accurate information to the doctor and to follow the doctor’s treatment orders. Patients have a duty to:
- Provide full and accurate answers to questions about their medical history and family health history
- Truthfully describe symptoms and possible causes of problems
- Follow doctors’ instructions for treatment once they have agreed to the treatment
- Disclose to doctors any lapses in treatment obligations
- Question doctors when they do not understand instructions
- Cooperate with treatment and not doing anything that could jeopardize treatment
- Commit themselves to health maintenance and refrain from activities that could worsen their condition or harm others with their condition
If a patient is being treated for lung cancer and fails to disclose that he has not stopped smoking a pack of cigarettes a day, the patient cannot later hold the doctor fully liable for failed treatment.
It is not the patient’s responsibility to consult a second physician if they believe their doctor is mishandling treatment. If the patient continues to follow the orders of their doctor and is injured, the doctor might be held responsible for the injury.
Some states have strict contributory negligence laws that bar the patient from any compensation in medical malpractice claims if the patient was found to have contributed in any way to the injury. States with these “pure” contributory negligence rules include:
All other states allow patients to remain eligible for some compensation even if the patient is found partially responsible for the injury. Each state has its own formula for calculating damages for contributory negligence.
Proving Contributory Negligence In Medical Malpractice Cases
For a contributory negligence claim to be successful, at least one of three facts must be true:
The patient failed to disclose their full and accurate medical history
Information gleaned from the medical history of the patient can be essential to a doctor’s evaluation and diagnosis of a patient. If a patient fails to disclose health history information, like a family history of cancer or an allergy to some medications, the doctor will not be held liable for injuries that were the result of a lack of knowledge. On the other hand, patients are not required to freely provide information that the doctor does not request. For example, if a doctor never inquired about a patient’s history, the patient cannot be held liable for failing to provide it. The patient is also not responsible for reminding the doctor about specifics of the health history. If a patient does lie or accidentally omit information but it is determined that a reasonable doctor could have detected the omission, the doctor can be held liable for any resulting injuries.
Failing or Refusing to Comply with a Doctor’s Initial Treatment and Recommendations
Doctors cannot treat patients alone; they need cooperation of the patient to make treatments work. If a patient fails to follow the advice of a doctor (stop smoking, use insulin, take this medication…), then the doctor may not be liable for any resulting injuries. Patients who refuse to allow the doctor to treat them cannot hold the doctor liable for injuries from a lack of treatment.
Failing to Continue Treatment or Follow a Doctor’s Treatment
Once patients have accepted treatment from a doctor, the patients must continue to follow the doctor’s treatment instructions until the doctor believes treatment to be complete. Doctors must be able to complete their course of treatment with the patient, and patients are required to follow treatment instructions from the doctor or be responsible for any resulting injuries. However, patients will not be held with contributory negligence if they quit a doctor’s treatment due to concern that the doctor is committing malpractice.
If the patient failed their duty to their doctor, under contributory negligence rules they will be barred from receiving any compensation for their injuries.
Getting Help From A Top Baltimore Medical Malpractice Attorney
Proving doctor or patient fault can be very complicated and difficult. If you or a loved one has suffered an injury at the hands of a medical professional, you need to contact a medical malpractice attorney. The attorneys at Gilman & Bedigian will review your case and determine if the health care professional breached the standard of care. Fill out this form, or call our offices today at (800) 529-6162 to schedule a free medical malpractice case consultation.