Can You Still File a Claim if You Are Partially at Fault for a Medical Injury?
The difficulty arises because Maryland and DC, along with Alabama, North Carolina, and Virginia, recognize contributory rather than comparative negligence as the standard in personal injury and malpractice cases. As a legal standard, comparative negligence seeks to hold everyone responsible for their actions or lack thereof. On the other hand, contributory negligence requires partially-at-fault victims to take full responsibility, even if their portion of blame pales in comparison to the main at-fault party.
Comparative Negligence Allows for a “Partial” Defense
Whether a comparative negligence case settles in or out of court, insurance adjusters or juries attempt to arrive at an acceptable percentage of blame for each party. The at-fault insurer deducts the victim’s percentage of fault in the injury from the total amount of damages awarded. Simple math ensures that the overwhelmingly-at-fault party’s insurer pays damages, and those less to blame are proportionately compensated.
Contributory Negligence Demands That Baltimore Plaintiffs Bear No Blame for Their Injury
Identifying a Victim’s Partial Negligence
Happily for insurers and less so for plaintiffs seeking damages, the threshold for establishing partial fault by the victim is low. Defendants need only prove that plaintiffs failed to exercise reasonable caution by either engaging in a dangerous activity or ignoring posted or verbal warnings regarding their safety. In those instances, the court must conclude that the plaintiff has accepted the assumption of risk to the degree that renders them at least partially to blame.
Assumption of Risk Affects But Doesn’t Govern Contributory Negligence
The “Last Clear Chance” Rule Is the Contributory Negligence Plaintiff’s Only Weapon
One rule allows some plaintiffs partially at fault to still collect damages. The language varies in each state, but the Last Clear Chance doctrine lays out three standards the plaintiff must meet to be eligible for compensation.
- The plaintiff must have been in real, immediate, and unavoidable danger from the defendant
- The defendant recognized the danger to the plaintiff
- The defendant could have reasonably avoided inflicting injury on the plaintiff
The Last Clear Chance Rule essentially dictates that a defendant remains liable for damages if they were the party with the final reasonable opportunity to prevent the plaintiff’s injury. That is still a high bar to clear for plaintiffs, but it allows for awarding damages in some instances where partial fault exists in contributory negligence states.
Establishing Contributory Negligence in Medical Malpractice Cases
As noted, defendants need only prove plaintiffs are partially responsible for their accident injuries in contributory negligence states to avoid paying damages. The standard applies equally to malpractice claims. A Baltimore patient who ignores their physician’s advice not to drive after a procedure involving anesthesia or other medication probably won’t receive damages from the physician for injuries sustained when they ignore that advice. According to the Last Chance Rule, the plaintiff had the final opportunity to prevent injury.
Contributory negligence remains in effect when the malpractice claim involves injuries from seizures, strokes, or other complications sustained on the operating table or due to undiagnosed or misdiagnosed conditions. For instance, the patient who misses appointments that would have allowed doctors to make a correct diagnosis is partially responsible for their state and cannot successfully press a claim for damages. Failure to disclose one’s full medical history for any reason, including forgetfulness, can also be ruled contributory negligence.
Can a Medical Malpractice Lawyer Obtain Damages for a Partially Responsible Patient?
The burden is always on the plaintiff and their attorney in Maryland and DC, where contributory negligence standards apply. They must prove the defendant had the final opportunity to prevent any injury or fatality. If an attorney cannot demonstrate that their client attended every appointment, disclosed their full medical history, took all medications as prescribed, and followed medical advice to the letter, only one alternative remains. The medical malpractice lawyer must completely separate any medical errors from their client’s negligence.
In other words, the plaintiff must prove that any missed appointments, unfollowed advice, or improperly used medications did not affect the doctor’s ability to treat them successfully. Examples of malpractice that might persuade a jury to apply the Last Chance Rule despite the plaintiff’s partial fault include but are not limited to the following:
- Medical professionals who operate or consult while under the influence of alcohol or narcotics
- Procedural errors such as leaving sponges or other medical equipment inside the patient after surgery
- Filing errors such as inadvertently switching patients’ charts
- Patients who fail to keep appointments to avoid an abusive physician.
Receiving compensation from a hospital, physician, or another medical professional with contributory negligence in their corner requires that the facts and a top medical malpractice lawyer are in yours. Preferably, that attorney should be backed by the resources of a firm with a strong tradition of successfully obtaining compensation for personal injury and malpractice in the Baltimore area. We’re confident you’ll find us to be that firm. Contact Peter Angelos Law for a consultation today.