Comparative Negligence in Medical Malpractice

Medical malpractice tort claims never prove as clear cut as many persons wish to assume. In many instances, a variety of factors contributed to the detrimental damages victims experience following or during an incident of medical malpractice. Within tort law, there are a number of methods to proportionally allocate the damage liability, and in turn, the responsibility to compensate for these damages, amongst plaintiffs and defendants in cases when both parties proved negligent in one or more manners. Medical malpractice comparative negligence doctrines in tort law allow for an assessment of the fault each party, including the victim plaintiff and any healthcare providing defendants, had in incurring the damages for which a plaintiff is seeking compensation.

Defendants in medical malpractice cases, which are generally medical healthcare providers of some form, will invoke the defense of contributory negligence to ensure a judge or jury will review the medical malpractice comparative negligence proportions of the individual case. In these instances, medical professionals accused of medical malpractice are asking the fact-finder, a judge or jury, to find the victims responsible in causing a percentage or all of the injuries they wish to recover from the medical professional defendants.

In medical malpractice comparative negligence judgments, the fact-finder will hear arguments from defendants and plaintiffs concerning which party proved most negligent in causing the medical injuries plaintiffs suffer. The arrangement of the damage awards, however, will vary from state to state. Each state implements their individual standards for assessing comparative negligence in tort law. Each state does, however, ascribe to one or more general doctrines of tort law that facilitate the assessment of medical malpractice comparative negligence.

The differing laws regarding medical malpractice comparative negligence in all fifty states and the District of Columbia offer three distinct categories, with various subcategories that delineate the responsibility for damages based on percentage fault found by judges or juries.

The categories that comprise medical malpractice comparative negligence laws in the United States include:

• Pure contributory negligence
• Pure comparative fault
• Modified comparative fault

Currently, there are five states that implement doctrines allowing for pure contributory negligence in their medical malpractice torts. In these states, the pure contributory negligence laws mandate if a plaintiff is found even one percent at fault for causing his or her damages or medical malpractice injuries, he or she can recover absolutely no damages, compensatory, punitive, or otherwise.

The states ascribing to the medical malpractice tort law doctrine of pure comparative negligence include:

• Virginia
• North Carolina
• Maryland
• District of Columbia
• Alabama

Additionally, there are a number of states, thirteen currently, that follow the to doctrine of pure comparative fault that allows for plaintiffs to recover damages, even if the plaintiff, or victim, is found up to ninety-nine percent at fault for causing their damages. These damages defendants, usually healthcare professionals, are then forced to pay plaintiffs, or victims, will be reduced by the percentage of fault assessed to the plaintiff by the fact-finders of the tort case.

The states implementing this strategy of dealing with medical malpractice comparative negligence cases include:

• Washington
• South Dakota
• Rhode Island
• New York
• New Mexico
• Missouri
• Mississippi
• Louisiana
• Kentucky
• Florida
• California
• Arizona
• Alaska

The remaining thirty-two states currently implement one of two versions of modified comparative fault when assessing medical malpractice comparative negligence defense claims. The two schools of thought are known as the Fifty Percent Bar and the Fifty-One Percent Bar standards. In each of the medical malpractice comparative negligence standards, courts will weight the percentage of fault by both the plaintiff and defendants. In the event a plaintiff is found to either have less than fifty or fifty-one percent of the comparative fault according to each state's tort laws, the plaintiff can still recover a proportionate percentage of the damages incurred. In the event plaintiff's liability and responsibility for incurring the damages is greater than fifty or fifty-one percent, depending on the state, the plaintiff, also known as the victim, cannot recover any damages from the plaintiff healthcare providers and professionals.

There is some recourse for individuals in states that will revoke a victim's right to compensation following a detrimental assessment of fault on behalf of the plaintiff. The last clear chance doctrine in medical malpractice tort law allows for a negligent plaintiff, regardless of their percentage of negligence and the prevailing laws of the state, to exhibit defendants had the last clear chance to prevent damages that occurred. On the downside for victims, defendants can also countersue on the exact same grounds as well.