Medical malpractice typically occurs when the treatment given by a doctor, physician, or other hospital staff results in further injury to the patient.  In response to the injuries, the patient may file a medical malpractice claim in order to recover damages for the losses they experienced.  During a medical malpractice lawsuit, the victim will usually present evidence that they were injured as a result of the medical treatment they received.   

The vast majority of medical malpractice claims are based on a negligence theory.  In a medical context, negligence occurs where the doctor breaches a duty of care to the patient.  In order to recover damages, the patient must prove that the breach of duty actually caused their injuries.  They must also demonstrate that no legal defenses are available to doctor. 

Is Patient Negligence a Defense to Medical Malpractice?

Since most medical malpractice lawsuits are based on negligence, a defense to a negligence claim will usually prevent a person from recovering for medical malpractice.  In many instances a patient may have been injured on account of their own negligence, not the doctor or physician’s negligence. 

If the patient caused or contributed to their own injury, this may be raised as a defense, which is also known as the defense of “contributory negligence”.  In many jurisdictions, contributory negligence has the effect of reducing the amount of damages that the plaintiff may recover in a medical malpractice suit.  In other areas, contributory negligence can sometimes prevent recovery altogether. 

The following types of conduct may form a basis for a defense to a medical malpractice:

  • The patient’s own negligence caused their injuries or harm (“contributory negligence”)
  • The patient did not take steps to mitigate (reduce) their own damages, or their actions made the injuries worse
  • The patient signed an inform consent document or waiver, and assumed the risk of any injuries or complications
  • The patient did not disclose important data or information to the doctor
  • The harm that was suffered was unavoidable because it was an “unknown risk”
  • The patient did not actually suffer any measurable harm from the negligence
  • The patient engaged in some sort of activity or conduct that disrupted the “chain of causation” linking the injury to the malpractice

Therefore, if you have undergone medical treatment, or are about to undergo a medical procedure, you should take care to avoid the conduct listed above.  Such actions may prevent or reduce your amount of recovery if you need to file a medical malpractice lawsuit.

Do I need a Lawyer for Medical Malpractice Defenses?

Filing a medical malpractice claim can involve many different aspects of the law.  If you are or will be involved in a malpractice suit, you may wish to contact a personal injury lawyer for advice.  Your attorney will be able to determine what types of defenses the opposite party might raise in response to your claim.  Also, an attorney can help you gather the necessary information that will serve as evidence in your case.