“Contributory” or “comparative” negligence in relation to medical malpractice means a claimant contributed to their own harm, and cannot obtain full compensation from the other party. This legal standard bars claimants from recovering full compensation if they were partially at fault for the damages they incurred.
In medical malpractice cases, contributory negligence can prevent patients from recovering a settlement even if they present evidence that shows the health care provider committed medical malpractice. To avoid liability, the respondent and their attorneys may try to convince the jury that the claimant was partially responsible.
Pursuing a medical malpractice claim can be challenging in pure contributory negligence states. As a claimant, you and your attorney must demonstrate the other party’s medical negligence and anticipate and defend against charges that you contributed to your injuries in some way.
The medical malpractice attorneys at Pintas & Mullins understand contributory negligence and can help you pursue legal action, no matter what challenges your case presents. We offer free consultations to get to know you and review the details of your claim. We will answer all your questions and offer straightforward, unbiased advice on your options. To schedule an appointment right away, call us at 1-855-MED-ASKS.
Can Patients Who Were Partially at Fault Still Receive Compensation?
If you were partially at fault for your injuries in a medical malpractice claim, two factors will determine whether or not you can recover compensation from your doctor or other health care provider:
- The state where the incident happened and where you filed the lawsuit; and
- Your percentage of fault.
Different states operate by different contributory negligence laws. Some states are pure contributory negligence states, others are pure comparative negligence states, and the ones remaining are a mixture of the two.
Pure Contributory Negligence States
In pure contributory negligence states, any degree of fault on your behalf disqualifies you from recovering damages. For instance, if you file a lawsuit against a doctor alleging that you suffered adverse effects due to inadequate follow-up care after surgery, but the doctor provides evidence that you canceled and postponed several post-surgery appointments, you might be partially at fault.
If such a situation unfolded in a pure contributory negligence state, you might be unable to receive compensation from the doctor—even if you have evidence showing the doctor was also negligent.
Some pure contributory negligence states carve out an exception known as the last clear chance doctrine. This rule states that even if you, the claimant, bear responsibility for your injuries, you can recover damages if the doctor had one last clear chance to prevent your injuries from happening.
Pure Comparative Negligence States
In pure comparative negligence states, you can recover damages from the health care provider even if you were partially at fault. These states award compensation based each parties’ degree of fault. Your percentage of fault gets deducted from the total award.
For example, if your damages total $100,000, but you were 25 percent at fault, you would recover $75,000. Even if you were 90 percent at fault, you could still recover $10,000.
Modified Comparative Negligence States
Modified comparative negligence states follow the same protocol as pure comparative negligence states to a certain point. If a claimant is more than 50 or 51 percent at fault, they usually cannot recover damages.
In other words, if you file a lawsuit in a modified comparative negligence state with a 50-percent threshold and you are 40 percent at fault, you can still recover 60 percent of your total damages from the other party.
On the other hand, if you are 60 percent—or even 51 percent—at fault, you cannot recover any damages.
How Can I Speak to a Lawyer About My Malpractice Case?
The medical malpractice attorneys at Pintas & Mullins can help you prove your degree of fault and file your claim. We offer free consultations and case reviews.
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