Determining fault is one of the most difficult tasks in medical malpractice cases. Injured patients need to be able to show that the injury was the result of actions by a health care professional, and the patients must prove that the negligent actions fell below the required standard of care.
Sometimes the patient's actions contribute to the injury, changing the way compensation is awarded in the case. Some states have harsh rules that bar patients from any compensation if the patient contributed even 1% of the negligence that caused the injury.
Most states are more lenient and use some kind of scale to measure the amount of negligence contributed by the patient versus the negligence contributed by the health care professional. Comparative negligence means that compensation for damages is awarded based on the amount of negligence attributed to the health care professional.
Development of Comparative Negligence
Comparative negligence developed from reactions against contributory negligence, the doctrine that bars injured victims from any compensation if the victim contributed in any way to the injury. Comparative negligence allows the victim to claim damages proportional to the fault committed by the other party.
Comparative negligence started as a way to protect injured railroad workers in the early 1900's. In the 1920's, Congress included the doctrine of comparative negligence into new legislation that protected injured victims from being barred from compensation for workplace injuries.
However, most states continued to resist adopting comparative negligence until the 1970's. Today, all but 5 states have adopted comparative negligence rules over contributory negligence.
Pure Comparative Negligence
In pure comparative negligence cases, the jury or judge will determine the percent of the fault committed by the patient versus the health care professional, and will award damages accordingly. If a patient was found to be 40% at fault for an injury, they can receive up to 60% of the total damages. If the total damages are $100,000, the patient can recover $60,000.
Though it is not likely to occur, the pure comparative negligence doctrine allows damage recovery for patients who are found to be even 99% responsible for their own injury.
Some states follow modified comparative fault or slight/gross comparative fault rules that use different damage calculations for some ranges of fault (the patient cannot recover proportional damages if they are found to be 50% or 51% at fault).
Examples of Pure Comparative Negligence
Failing to Disclose Medications
Sue comes into the emergency room with heart problems. Sue's doctor asks for her family health history but does not ask Sue if she is currently taking any medications. Sue thought that she should tell her doctor about her blood pressure medication, but she does not because he did not ask. The doctor prescribes a new medication, and one week later Sue suffers a stroke as a result of a reaction between her blood pressure medication and her new medication.
The standard of care says that doctors are required to ask patients about their personal health history, including any current medications the patient is taking. If the doctor failed to do so, then the doctor can be held liable for resulting injuries. In this case, though, Sue knew she had previous heart issues and was even currently taking medication for those issues. Though patients are not required to prompt the doctor about their own personal information, patients are required to actively work to participate in their own treatment and improve their health. A jury might find that Sue was 15% at fault for her own injury, allowing her to collect only 75% of the total damages.
Failing to Follow Doctor's Orders
Mark broke his wrist and went to see his doctor to get a cast. The doctor told Mark to wear the cast for six weeks and refrain from any heavy lifting. Five weeks into healing, Mark decides to help a friend move but hurts his wrist when picking up a heavy box. At the doctor's office Mark finds out that though he failed to follow his doctor's orders, his wrist had not been healing properly anyway because the doctor incorrectly set the bones.
A jury might find that though Mark failed to obey his patient duty to follow doctor orders, he can still collect 60% of the damages for the case because the doctor also made a negligent mistake.
States That Follow Pure Comparative Negligence
The following states subscribe to pure comparative negligence rules:
Medical Malpractice Attorney
If you or a loved one has suffered an injury as a result of a medical professional's negligence, you need a strong defense attorney who understands malpractice cases and will be able to prove fault. The attorneys at Gilman & Bedigian have a track record of success in recovering damages for victims of medical malpractice.
Call our offices today at (800) 529-6162 to speak with an attorney and begin your case.