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

  • Prescribing the wrong kind of medication or the incorrect dosage of a medicine, prescription error;
  • Failing to observe proper sanitation procedures during surgery, and other surgical errors;
  • Failure to diagnose a medical condition correctly;
  • Errors made during the administration of anesthesia;
  • Failure to provide a patient with the proper information prior to treatment, especially with regard to consent to treatment.

These are only a few examples of the many different kinds of errors that can be made by health care professionals in the course of providing medical care. Many different people and entities can be sued for medical malpractice, including physicians, surgeons, pharmacists, nurses, hospitals, hospital administrative staff and others.

A defendant who is being sued by a patient for medical malpractice may have a number of defenses available to them depending on the circumstances of the case.

What Is Rejection of Expert Testimony?

One way to defend against a claim of medical malpractice is to seek rejection of the testimony of the plaintiff’s expert in court. The defendant can move to disqualify expert witnesses that have been enlisted to provide testimony in court for the victim of malpractice, the plaintiff in legal terminology. Expert testimony is usually critical to the respective cases of both sides, so if one side’s expert is rejected, it can be fatal to that side’s case.

During the trial of a medical malpractice case, a judge is responsible for acting as a gatekeeper to expert witnesses. The judge must ensure that the expert witnesses testifying have the qualifications they need to provide valid opinions about the care that should be provided and the care that was provided. The following is required:

  • Qualifications that are required to establish an expert’s standing in the relevant area of medical expertise at issue in the trial; and
  • Reliable opinion testimony that can be supported by other evidence, e.g. the medical records of the victim of the alleged malpractice.

Thus, a defendant can challenge both the expert’s qualification as a medical professional with the right training and experience. Or, the defendant can challenge the opinion testimony that the expert plans to give during the trial. If the defendant is successful in disqualifying the plaintiff’s expert, the expert cannot testify. This provides a significant boost to the defendant’s case. Or, the defendant can attack the validity of the expert’s opinion in the case.

By the same token, the plaintiff can challenge the defendant’s expert. If the challenge is successful, then this helps the plaintiff’s case.

What Is Absence of Causation?

In order to succeed in a medical malpractice lawsuit, the person who alleges malpractice on the part of health care providers, the plaintiff in a civil lawsuit, must successfully prove each element of a medical malpractice case. These elements are:

  • Duty of Care: The health care provider 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 use in similar circumstances;
  • Breach of the Duty of Care: The health care provider breached the duty of care by providing care that fell below the applicable standard;
  • Causation: The breach of duty was the direct cause of the plaintiff’s injuries;
  • Damages: The consequences of the injuries can be quantified as measurable monetary amounts.

If the plaintiff fails to prove any one of these elements, their lawsuit cannot be successful. So, for example, if a plaintiff fails to prove that the negligence of the health care provider caused their injury, this would mean success for the defendant. The defendant cannot be found liable for damages for malpractice, if their negligence did not cause injury to the plaintiff. This would be the case, for example, if the plaintiff’s injury was sustained before the medical treatment or procedure took place.

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 whether the plaintiff committed any negligent acts in the course of receiving treatment which may have contributed to their injury. If the plaintiff is found to have contributed, even if just to a degree of 1% fault, then they are barred from receiving any compensation from any of the other parties who also contributed.

For example, before performing a procedure, a doctor might give the patient specific instructions regarding how to prepare for the procedure. If the plaintiff were to completely disregard these instructions, and then go ahead with the procedure, it could affect their ability to claim an award of damages for medical malpractice.

Only four states, Alabama, Maryland, North Carolina and Virginia, and the District of Columbia still follow the law of pure contributory negligence. Most states have abandoned the concept as it is considered harsh and unforgiving for plaintiffs. It also allows health care providers who may have been 99% negligent to escape paying for the consequences of their substandard care. The other 46 states have adopted the law of comparative negligence.

What Is Comparative Negligence?

Comparative negligence also involves consideration of the negligent acts of the plaintiff. But under the law of comparative negligence, the negligence of the plaintiff is compared to the negligence of the defendant. The plaintiff’s award is reduced by the percentage of fault that is their own for their own injury.

For example, if a patient is found to be 40 percent negligent in causing their medical malpractice injury, their award for damages would be reduced by 40 percent. The defendant who contributed the other 60% to the causation of the plaintiff’s injury would still be liable for their 60% of the award for damages. If more than one defendant contributed to the plaintiff’s injury, the total responsibility of the defendants would be apportioned among them and each would pay their apportioned share of the award of damages.

What Is Modified Comparative Negligence?

Most states apply a theory of modified comparative negligence, also known as “modified comparative fault.” This means a plaintiff is not allowed to recover damages if their fault percentage for an accident is 50% or more. However, the states are divided on how strictly to apply it.

Some states apply the “50% rule.” Under this rule, if a plaintiff is more than 50% at fault, they cannot recover any damages. The 50% rule is applied by ten states, including Colorado and Maine. So, if a plaintiff’s share of the fault is 49% or less, then they can recover damages but the total amount would be reduced by the percentage of the fault that belongs to the plaintiff. If the plaintiff’s fault is 50% or more, the plaintiff recovers nothing.

Other states use the “51% rule” which says that the plaintiff cannot recover damages in any amount at all, if they are 51% or more at fault. It is applied just like the 50% rule, and it is more commonly used than both the pure contributory negligence and comparative negligence rules.Twenty-three states, including Illinois and Oregon, follow the 51% rule.

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

Speaking with a personal injury attorney about medical malpractice defenses is helpful when you have been named as a defendant in a medical malpractice case. An attorney will advise you of your position and can determine which defenses may be available to you.

Or, if you are the victim of malpractice, of course, a personal injury attorney can be helpful for informing you of your state’s law and whether you have a realistic chance of recovering damages. Your attorney can help you understand your options and make the best choice of moves going forward.