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More on contributory and comparative negligence

In a previous blog post, we discussed common legal defenses that doctors may use when fending off a dubious medical malpractice claim. One of the defenses we mentioned was contributory negligence. In today’s post, we will go into more detail about that legal concept, and how it can be used when the patient is at least partially responsible for his or her own injuries.

Whenever someone suffers harm in a medical accident, it is tempting to try to pin the blame on a single person or business. And sometimes, one party is indeed completely responsible. But real life is often much less black-and-white. Within the shades of grey, there could be plenty of blame to go around.

Contributory negligence recognizes that, sometimes, victims of medical malpractice and other forms of negligence themselves acted negligent. Perhaps they failed to inform the doctor of important information about themselves, such as medication allergies. Or maybe the patient did not follow the doctor’s orders in some way that made the negligence-caused harm worse.

Traditionally, contributory negligence was a total defense, which meant that if the defendant proved that the plaintiff was partly responsible for what happened, he or she could not recover any damages. Today, most states allow for some form of comparative negligence, which acknowledges the plaintiff’s negligence, while still allowing for partial recovery.

Pure comparative negligence subtracts the amount the plaintiff was to blame from his or her damages. So, if the jury determines that a patient was 25 percent responsible and his or her doctor was 75 percent responsible, and finds $50,000 in damages, the plaintiff would receive $37,500. More often though, the plaintiff can only recover if he is found less than 50 percent to blame.

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