There are several ways that states determine fault in medical malpractice cases. Some states, like Maryland, bar patients from any damages if the patient is found to be even 1% at fault. Some states allow patients to collect damages in proportion to the determined fault of the health care professional. If the health care professional is 60% at fault and the patient is 40% at fault, the patient will be awarded 60% of the damages.
By far the most common calculation for damages is the “modified comparative negligence” rule. Under modified comparative negligence, patients are awarded proportional damages unless the patient is found to be more than half responsible for the injury.
Modified Comparative Negligence
Modified comparative negligence is the same as pure comparative negligence if the patient is responsible for less than half of the fault, but differs from pure negligence if the patient is more than half responsible.
There are two types of modified comparative negligence: the 50% rule and the 51% rule. States that follow modified comparative negligence award the patient proportional damages only if the patient is found to be up to 49% or 50% at fault for the injury.
If the patient is found to be 50% or 51% (depending on the state) responsible for their own injury, the patient will be barred from all damage compensation.
States That Follow Modified Comparative Negligence
The following states subscribe to the 50% pure comparative negligence rules:
These states follow the 51% rule for modified comparative negligence:
Examples of Modified Comparative Negligence
Failing to Disclose Health History
At her annual checkup, Jane's doctor asks her to disclose any major illness that her family members have suffered. Jane writes “none” even though her mother and aunt had suffered breast cancer. The doctor completes the checkup and sends Jane home with no further recommendations.
Six months later Jane is back in the office with a lump in her breast. The doctor diagnoses stage-3 breast cancer. While Jane did not disclose her family history to her doctor, the standard of care for women like Jane (over 55) states that patients should have a breast cancer screening twice a year. Jane's doctor failed to order any mammograms for Jane in the last year.
A jury in North Dakota finds Jane 50% responsible for the delayed diagnosis, which bars Jane from recovering any compensation.
Failing to Follow Doctor's Orders
Carlos suffered heart problems, so his doctor put him on a once a day medication to keep him healthy. Two months later Carlos suffered a heart attack but recovered. His doctor increased Carlos' medication as a result of the attack. Six months later Carlos suffered a severe heart attack and was left with brain damage. He sued his doctor for the failed treatment but disclosed that he had stopped taking the medication two weeks before his first heart attack.
The jury in Texas finds Carlos 70% at fault for his own injury and allows him to collect 30% of the damages.
Slight/gross negligence is a system that awards damages to the patient only if the patient's negligence is “slight” and the health care professional's negligence is “gross”. In all other cases, the patient is barred from recovering damages.
Currently, South Dakota is the only state that follows this rule.
South Dakota § 20-9-2 states:
“Comparative negligence--Reduction of damages. WP Paired Style Off: CL WP Style End: CL In all actions brought to recover damages for injuries to a person or to that person's property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence.”
As seen in the statue, the difficulty with slight/gross negligence is actually defining “slight” and “gross” in every case.
Medical Malpractice Attorney
If you or a loved one has suffered an injury as a result of the negligence or misconduct of a medical professional, you need an experienced medical malpractice attorney. The staff at Gilman & Bedigian puts clients first and understands the difficulties victims of malpractice face. We have a track record of receiving optimal results for our clients, and we keep clients well informed throughout the process.
Call our offices today at (800) 529-6162 to schedule your free consultation and to learn more about your options.