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Comparative Negligence in Medical Malpractice and Dental Malpractice Cases

Some states have what is called comparative negligence.  Under this theory, the court estimates what percentage of the responsibility is due to your actions, and how much can be blamed on the doctor or the hospital.

Imagine that you went to a hospital ER with pneumonia.  The doctors and nurses told you that you should stay in the hospital but failed to warn you of the dangers and risks you ran by leaving.  You did not think it was serious and signed yourself out against their advice.  You later developed serious complications and want to sue the hospital.

In a state that uses contributory negligence, you would probably be barred from collecting anything, because your behavior in defiance of the doctor’s orders was a substantial cause of your damages.  However, in a comparative negligence state, the jury might say that the doctor was 20% responsible, the hospital was 20% responsible, and you were 60% at fault.  Under the legal theory of comparative negligence, it is possible to be awarded damages, even if you were 90% to blame for what happened to you.

Effect of Comparative Negligence on Your Case

Comparative negligence is more favorable to you.  The judge or jury cannot dismiss your case, because you were partly to blame.  Theoretically, you can receive something, even if you were almost entirely responsible for what happened to you.  However, your chances of winning anything are not very good, if your actions were responsible for more than 50% of your damages.  Jurors are not impressed by people who are largely responsible for their own troubles.  Lawyers call it “going into court with unclean hands.”  Even though the law says you can receive an award when you were the one mainly responsible for your bad results, the jury will probably see you as an opportunist and side with the doctor.

If you think you may have been partly to blame, you should discuss it openly with your lawyer and let him decide whether your chances of winning merit the cost and trouble of going ahead with the case.

Contributory and Comparative Negligence States

Only five states still recognize the pure contributory negligence rule, which says that a damaged party cannot recover any damages if he is even 1% at fault: Alabama, District of Columbia, Maryland, North Carolina, and Virginia.

THE RULE IS: If you are accused of contributory or comparative negligence, the defendants must prove your action met the following conditions:

1. It must have been willful and deliberate.

2. It must have occurred at the same time as the doctor’s malpractice.  If it occurred later, it can only be used by the doctor’s lawyer as a mitigating factor to reduce the dollar value of your damages.

3. It must have made your bad result worse than it would have been if you had followed instructions.  If it did not have any effect on the course or the outcome of your illness, it cannot be used against you at all – no matter what you

did.

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