Patient Negligence as a Defense to Medical Malpractice

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 What is a Medical Malpractice Claim?

Typically, medical malpractice occurs when the treatment which is provided by a doctor or other medical professional, including hospital staff, results in injury to a patient. In response to these injuries, a patient may be able to file a medical malpractice claim so they can recover monetary damages to compensate them for the harm or losses they incurred.

In medical malpractice lawsuits, the plaintiff will typically present evidence showing that they were injured as a result of the medical treatment they received. In general, the majority of medical malpractice lawsuits are based on the legal theory of negligence.

In the context of healthcare, negligence occurs when a healthcare professional breaches their duty of care to a patient. In order to recover monetary damages, a patient is required to prove that the breach of duty was the actual cause of their injuries.

The plaintiff may also be required to counter any defense the healthcare professional may attempt to present against the plaintiff’s claim.

How is Medical Malpractice Proven in a Lawsuit?

There are several elements which must be present prior to a medical malpractice claim being established. In order to prove a healthcare professional was liable for medical malpractice, they must show:

  • That the healthcare professional owed the plaintiff a duty to act reasonably and in accordance with the medical standard of care when overseeing the health of the plaintiff, including diagnosis and treatment;
  • That the healthcare professional’s actions fell below the standard of care because they were negligent in managing some aspect of the plaintiff’s health;
  • That the healthcare professional’s negligent conduct was the actual and the proximate cause of the injuries the patient suffered; and
  • The plaintiff’s injuries resulted in measurable damages.

In addition, if a medical malpractice lawsuit is filed specifically against an organization or the clerical staff of the organization, the plaintiff must show that the staff was trained or supervised in a negligent manner.

There are certain documents that can be useful for a plaintiff to use as evidence to support their claim, including:

  • Medical records;
  • Receipts for medical expenses;
  • Documents which caused a misdiagnosis or mistreatment to occur; and
  • Proof of costs related to the injuries, such as the cost of corrective surgery.

What is Negligence?

Most individuals have heard a story of someone acting carelessly, someone being injured, and a lawsuit following in order to compensate the injured individual. Negligence is a legal theory which allows injured individuals to recover if they are injured due to the carelessness of others.

An individual is negligent if they were careless based on the circumstances of the situation. Civil tort laws break down causes of action into two general categories, intentional, such as assault or battery, and unintentional.

Negligence is one of the most common unintentional torts, which may include:

  • Car accidents;
  • Slip and fall accidents;
  • Medical malpractice;
  • Dog bite cases; and
  • Other types of injuries.

Although negligence may be defined differently by jurisdiction, there are several basic elements of a negligence claim, including:

  • The defendant owed a duty of care to the plaintiff;
  • The defendant breached that duty of care;
  • Because of that breach, the plaintiff was injured;
  • The breach was both the actual cause of the plaintiff’s injuries;
  • The potential harm was foreseeable; and
  • The plaintiff can calculate the damages that they suffered.

What is Contributory Negligence?

Contributory negligence is a legal doctrine which states that if a plaintiff was negligent, they cannot recover any damages from a defendant. This is referred to as a total bar to recovery.

In other words, if the court or jury determines that a plaintiff was even 1% at fault for their injuries, they will not recover anything. This may seem like an extreme approach and is being replaced in most states by more lenient rules. Jurisdictions which use pure contributory negligence include:

  • Alabama;
  • Maryland;
  • North Carolina;
  • Virginia; and
  • Washington, D.C.

What are Some Common Defenses in a Medical Malpractice Claim?

There are some common defenses to medical malpractice claims that defendants may raise, including:

  • The statute of limitations has run;
  • Contributory negligence; and
  • Lack of proof or fault.

The statute of limitations is a time limit which an individual has to file a specific legal claim. In numerous states, the statute of limitations for medical malpractice claims is 2 years.

If a plaintiff files their claim after this time limit has expired, their case will be dismissed and they will not be able to recover for their injuries. It is important to note that these time frames may vary by jurisdiction.

Contributory negligence may prevent a plaintiff from recovering for their injuries, as discussed above. The defendant will be required to show that the plaintiff’s own negligence contributed to their own injuries.

If, however, the jurisdiction follows a modified comparative negligence theory, if the plaintiff was less than 51% at fault for their injuries, they may be able to recover a reduced amount of damages for their injuries. The amount of damages may be reduced by the percentage of fault by the plaintiff.

A defendant may prevail if the plaintiff fails to prove that the defendant’s actions fell below their standard of care. In addition, if the plaintiff cannot show that the defendant was the individual who was responsible for the plaintiff’s injuries, it may serve as a defense for the defendant.

Is Patient Negligence a Defense to Medical Malpractice?

Because, as noted above, the majority of medical malpractice lawsuits are based on negligence, defenses to negligence claims will usually prevent an individual from recovering damages for medical malpractice. In some cases, the patient may have been injured due to their own negligence and not the negligent conduct of the healthcare professional.

If a patient contributed to or caused their own injuries, this may be raised by the defendant as a defense, known as contributory negligence. As noted above, contributory negligence may reduce the amount of damages the plaintiff can recover.

In addition, as previously discussed, contributory negligence may prevent the plaintiff from recovering at all. There are several types of conduct which may serve as a defense to medical malpractice claims, including:

  • The patient’s own negligence caused their injuries or harm, or contributory negligence;
  • The patient did not take steps to mitigate, or reduce, their own damages, or their actions made the injuries worse;
  • The patient signed an informed consent document or waiver, and assumed the risk of any injuries or complications;
  • The patient did not disclose important data or information to the healthcare professional;
  • The harm that was suffered an unknown risk, and was, therefore, unavoidable;
  • The patient did not actually suffer any measurable harm from the negligence; and
  • The patient engaged in activity or conduct that disrupted the chain of causation linking their injury to the malpractice.

If an individual has undergone medical treatment or is about to undergo a medical procedure, they should attempt to avoid the conduct discussed above. Engaging in those behaviors may prevent or reduce the amount of recovery if they have to file a medical malpractice lawsuit.

Do I Need a Lawyer for Medical Malpractice Defenses?

It is essential to have the assistance of a personal injury lawyer for any issues, questions, or concerns you may have for medical malpractice defenses. Medical malpractice claims may include many different aspects of the law.

Your lawyer will review your case, determine what defenses the opposing party may raise in response to your claim, and assist you with gathering the documents and evidence for your case. They will also represent you during any negotiations or court appearances.


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