Posts Tagged ‘assumed an unusual risk’
Were You Partly to Blame?
A doctor gives you a prescription for medication, or tells you that you need emergency surgery, and you do not follow through and ignore his advice. You are in a hospital and decide that you want
to go home. The doctors tell you that you are in no condition to leave, but you sign yourself out and go home anyway. You secretly take your own sleeping pills to the hospital, in violation of the hospital rules. Are you responsible if something bad happens? Yes. You cannot hold a doctor responsible for the results of your willful disregard of his advice.
It is known as Contributory Negligence in some states and Comparative Negligence in other states. There are important differences in the two concepts and the effects they can have on a medical malpractice case or a dental malpractice case. Check which concept applies in your state. You could have a valid case in one state and a meritless case in another state.
If your doctor advises you to have treatment and you refuse and something goes wrong, or if you sign yourself out of the hospital against the advice of the doctors. In a contributory negligence state, it will probably prevent you from collecting a judgment.
In a comparative negligence state, it will reduce the amount of your award.
Sometimes a patient who is drugged, mentally disturbed, confused, or senile will do something against a doctor's order, and something bad will happen. The defense attorneys will claim there was contributory negligence, but that argument will not stand up. It has to be a deliberate and conscious act by someone who knows what they are doing.
In a Maryland case, a confused, senile elderly lady climbed over the bedrails and walked as far as the bathroom before she passed out. As she fell, she grabbed a hot water pipe with both hands. By the time she was found, her hands were so badly burned by holding the hot pipe that they had to be amputated. The defense lawyers claimed contributory negligence, but the court said no, because she did not do it deliberately.
It is not enough for a doctor to say that you left the hospital against his advice, or agreed to a risky treatment. He has to either show you agreed in writing or he has to produce a reliable witness. It is up to the defendants to prove you were guilty of contributory negligence or that you knowingly assumed an unusual risk. You do not have to prove that you did not.
THE RULE IS: Your actions must have been willful and deliberate, have occurred at the same time as the medical malpractice or dental malpractice, and have contributed to the bad results.