Medical malpractice occurs when a medical professional fails to provide the care another medical professional would in similar or the same circumstances. Medical care that does not meet standards set by the applicable state law and local medical community is called substandard care. Some common examples of medical malpractice include:

  • Prescribing the wrong type or dosage of a medicine (prescription error);
  • Failing to follow proper health and sanitation procedures during surgery, and other surgery errors;
  • Failure to diagnose a medical condition;
  • Anesthesia errors;
  • Failure to provide a patient with the proper information prior to treatment (especially with regards to consent to a treatment); and/or
  • Various other types of medical errors or failures.

Many different parties and persons can be sued for medical practice, including: doctors, physicians, surgeons, pharmacists, nurses, administrative staff, and other hospital employees. A defendant who is being sued by a patient for medical malpractice may sometimes have a number of defenses available to them.

What is a Rejection of Expert Testimony?

Rejecting the testimony of an expert is a type of medical malpractice defense. It is generally used to disqualify expert witnesses that have been enlisted to provide testimony in court. A judge is responsible during trial is to act as a gatekeeper to ensure expert witnesses testifying have:

  • Qualifications needed to support the expert’s standing as an expert in their chosen field; and
  • Reliable testimony that can be supported by other evidence.

Thus, a defendant can challenge both the expert’s qualifications and the testimony that they plan to give during the trial. If the defendant wins the challenge, the expert cannot testify; this can often help the defendant’s case.

What is Absence of Causation?

In order to succeed in a medical malpractice lawsuit, the plaintiff (the injured party) must successfully prove each element of a medical malpractice case. These elements are:

  • Duty of Care: The medical professional owed a duty of care to the patient; in most cases, this is the standard of care that a professional with similar experience and training would employ
  • Breach of Duty of Care: The medical professional failed to comply with the standard of care
  • Causation: The breach of duty was the actual cause of the plaintiff’s injuries
  • Damages: The injuries can be quantified into measurable monetary amounts

If the plaintiff fails to prove any one of these elements, they cannot win their lawsuit. “Absence of causation” is a common example of this type of defense. Here, if the defendant did not actually cause the plaintiff’s injuries, they cannot be found liable for malpractice. An example of this is where the injury was sustained before the medical treatment or procedure occurred.

What is Contributory Negligence?

Another type of medical malpractice defense is known as contributory negligence, also known as “pure contributory negligence”. Contributory negligence looks at any negligent acts of the plaintiff. If the plaintiff contributed to their injury, even if just at 1% fault, then they are barred from receiving any compensation for their injury.

An example of this is where the doctor gives specific instructions to the plaintiff prior to their medical treatment. If the plaintiff disregards these instructions, and then proceeds with the procedure, it can affect their ability to claim a damages award.

Pure contributory negligence isn’t available in every state, as it is considered a harsh and unforgiving for plaintiffs. At the moment, Alabama, District of Columbia, Maryland, North Carolina, and Virginia are the only states that use pure contributory negligence.

What is Comparative Negligence?

Comparative negligence also looks at the negligent acts of the plaintiff. This defense compares the negligence of the plaintiff to the negligence of the defendant.

The plaintiff’s award is reduced by their percentage of fault for their own injury. For example, if a patient was found to be 40 percent negligent in their medical malpractice injury, their damages award would be reduced by 40 percent.

What is Modified Comparative Negligence?

Most states use a form of modified comparative negligence, also known as modified comparative fault. However, they are divided on how strictly to apply it. Some states use the “50% rule” which says that a plaintiff that is more than 50% at fault cannot recover any damages. If they are 49% (or under) at fault, then they can receive damages but a reduced amount.

Other states use the “51% rule” which says that the party cannot recover if they are 51% or more at fault. It is applied just like the 50% rule, and it is more commonly used that both the pure contributory negligence rule and the comparative negligence rule.

Should I Talk to an Attorney about My Medical Malpractice Defenses?

Speaking with a personal injury attorney about a medical malpractice defenses is helpful when you are a defendant. An attorney will advise you of your legal rights and determine which defenses may be available to you.