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Posts Tagged ‘contributory negligence’

Obviously, you cannot throw the burden of proof onto the doctor just to make it easier for you. In order for your lawyer to plead res ipsa, you have to satisfy three conditions:

1. What

happened to you must be the sort of thing that does not n

ormally happen in the absence of medical malpractice or dental malpractice.

Like the patient finding his shoulder was damaged after an appendectomy, the injury has to be something that cannot be easily explained as a normal complication, such as having a sore foot for a few weeks after foot surgery, or your 90 year-old grandmother dying of a stroke. It has to be something out of the ordinary, and something the doctors never warned you about, such as finding that your baby is brain damaged after you were led to believe your pregnancy and delivery were normal.

2. Whatever was done was under the physician’s or dentist’s exclusive control.

The best example of this is a surgery in which the doctor has full authority and responsibility for everything that is done. It is known as the Captain of the Ship theory.

3. You were either unconscious at the time of your injury or doing exactly what you were told to do by the physician or dentist.

What happened was not due to any voluntary act on your part, and you were not guilty of contributory negligence.

In a New Jersey case, a doctor treated a woman for a chronic chest complaint without ever taking a chest x-ray. Finally, after six years, another doctor took an x-ray and found she had tuberculosis. When the first doctor was sued, he said it was the patient’s fault. If she did not improve in six years, she should have consulted another doctor. No one forced her to keep going back to him when she was not getting better. The court disagreed, stating that the patient could not be criticized for misplaced confidence in her doctor and following his orders faithfully. He had exclusive control and was the only one to blame.

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


An Illinois man went to a hospital ER after being hit in the head with a bottle during a bar fight. He was belligerent, staggering, confused, and had slurred speech. The doctors thought he was drunk and did not pay much attention to him. They a

llowed him to sign himself out against their advice. He went home; his family put him to bed to sleep it off. In the morning, they could not wake him. He was rushed back to the hospital where it was found that he had been suffering from a skull fracture and brain injury and was not drunk at all. He could have been saved when he first went to the ER, but by the time he returned to the ER, the pressure on his brain had caused an irreversible coma and he died.

His family sued the hospital, claiming he should never have been allowed to leave the hospital without a thorough work-up, which would have revealed the head injury and allowed surgeons to save his life. The hospital claimed contributory negligence, because the patient had signed himself out of the hospital against medical advice. The court said his action was not negligent, because it was not willful. In his confused mental state from the brain injury, he did not realize what he was doing.

A Florida man suffered a broken leg in a motorcycle accident. It was set incorrectly in the hospital. He ended up permanently lame due to a crooked leg. When he sued, the doctor moved to have the lawsuit dismissed because of contributory negligence. The doctor claimed the bad result of his treatment had been made worse, because the patient had been too active while still in the cast. The Florida court refused to dismiss the case, because the contributory negligence had occurred long after the doctor's malpr

actice in setting the leg. However, it did reduce the amount of the jury award, because the man had actually tried to play football, and his activity made the results of the doctor's malpractice much worse.

It is not contributory negligence, if you dismiss a doctor who has lost your confidence. You certainly do not have to continue following the advice of a doctor, if you think he is not handling your case right. If that happens, and you are not in a hospital, you simply go to another doctor. If you are in a hospital, you should ask your doctor to call in a qualified consultant. If your doctor refuses to call in another doctor, ask the hospital administrator to intervene. If he refuses, call your lawyer. You are always entitled to a substitution of doctors, if a qualified substitute is available.

The Effects of Contributory Negligence on Your Case

Contributory negligence can have two effects on a medical malpractice lawsuit or dental malpractice lawsuit. First, if the defense lawyers can show that your willful conduct seriously influenced the outcome, they can ask the judge to dismiss your complaint. Second, they can use it to persuade the jury to rule for the defendant. If the jury decides your actions were 50%, or more responsible, it will probably award you nothing.

An Indiana man suffered severe chest pains while playing tennis. He went to a hospital ER where an ECG (electrocardiogram) showed signs of an early heart attack. Hospital admission was advised but he refused and left the hospital against medical advice. Later that day, he resumed playing tennis and dropped dead on the court. The widow's malpractice suit against the hospital for failure to use more vigorous persuasion was dismissed, because of her husband's contributory negligence in ignoring the advice of the ER doctor.


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.


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