Medical Malpractice Comparative Negligence

Medical malpractice claims are always complicated affairs, even when they might seem as though they should be “cut and dry” to the patient. A wide range of different elements will contribute to the case, and this can make even what seems like the simplest of cases become entangled in a legal mess quickly. It is impossible for a patient to understand all of this on his or her own, and to understand just how potential damages are calculated. Comparative negligence can play a huge role.

In the broadest legal sense, comparative negligence involves any defense raised by a defendant in a tort claims case in which assertions are made that the plaintiff is liable, at least in part, for his or her own damages. In short, comparative negligence seeks to present to the trier of the facts, whether a judge or jury, the probability that a plaintiff contributed to, exacerbated, or caused the damages that are currently being claimed by the plaintiff.

Comparative Versus Contributory Negligence

While many states employ some semblance of a comparative or modified negligence system, historically, this was not the case, as tort claims under most state jurisdictions were typically subject to contributory negligence statutes, which barred recovery of a plaintiff in the event of any fault in causing the damages subject to the claims case. However, these gradual changes to negligence laws in civil cases are dictated at the state level by way of legislative action and judicial precedent predominantly, and as such, comparative negligence laws are not uniform across state jurisdictions.

Situating Comparative Negligence in a Medical Malpractice Context

Situated in a medical malpractice context, comparative negligence is predicated on state-specific and case-specific factors, with the ultimate decision on the degree or proportionality of fault being subject to the terms of a settlement agreement or the determination of the trier of the case, whether a judge or jury. Given that any medical malpractice claim entails a prolonged period of building a viable claims case, legal counsel and any medical malpractice claimant will consider the possibility of comparative fault defenses raised by medical practitioners’ subject to a lawsuit, and in turn, seek to determine how a given malpractice claims case may be impacted.

What Is Comparative Negligence?

Most states follow some variation of the comparative negligence rule, which means in practice that the courts will ultimately be the final arbiter of the percentage of negligence assigned to each party in the suit. The trier of the fact, usually a jury though occasional a judge or judicial panel, will determine damage awards accordingly once agreement is reached on the percentage of fault applicable in a given case. This element of uncertainty in any medical malpractice lawsuit, which ultimately asks whether a patient is partially to blame for the damages sustained, can be addressed from the outset with the guidance of legal counsel when presented with a well-documented potential malpractice claims case.

What Is Modified Comparative Negligence?




In a state jurisdiction that adheres to a modified comparative negligence doctrine, claimants are barred from recovery should the plaintiff be found half or more responsible for the damages party to the malpractice claim.

In Limited Circumstances, A Contributory Negligence Standard May Still Apply

Other states will use the contributory negligence rule, which is far harsher than the comparative negligence rule. Under contributory negligence, if the patient is responsible for even 1% of the fault of the injury, they will not be able to collect any award. Because of the harsh results it can produce, contributory negligence has fallen out of favor in most American jurisdictions. Currently, there are only a handful of locations that still utilize the rule of contributory negligence, including Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.

50 State Comparative, Modified, or Contributory Negligence Standards and Statutes, as of 2016.

  1. Alabama, the District of Columbia, Maryland, North Carolina, and Virginia stand as the few true pure contributory negligence state jurisdictions in which claims are barred from recovery in the event of any plaintiff contributory negligence.
  2. Pure comparative fault states, or those that permit plaintiff recovery less any contributory fault or negligence assigned proportionally by the trier of the fact in the case of plaintiff negligence causing damages party to the malpractice claim. These are true comparative fault states, which permit claims of negligence against a defendant even with the majority of fault of a claims case designated as contributory negligence, including Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington.
  3. A modified comparative negligence rule, which is employed by about twenty percent of states, permits negligence claims with the presence of contributory negligence up to fifty (50%) of fault, after which a plaintiff’s claims for damages relating to negligence are barred from recovery. States practicing a modified comparative negligence standard in tort cases, such as those involving medical malpractice claims, include Arkansas, Colorado, Idaho, Georgia, Kansas, Maine, Nebraska, North Dakota, Tennessee, Utah, and West Virginia.
  4. A slim majority of twenty-two (22) states also employ a modified comparative negligence standard in tort claims cases. However, the bar to recovery in these state jurisdictions stands at fifty-one (51%) assignment of fault to the plaintiff for damages. States exercising the modified comparative negligence standard with the bar to recovery set at fifty-one (51%) percent for plaintiff contributory negligence liability include Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan Minnesota, Montana, Nevada, New Hampshire, New Jersey, Oklahoma, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming.

How to Best Determine Fault Percentages and Comparative Negligence Aspects in Malpractice Case

If a patient has a concern that he or she may be partly at fault for their injuries, consulting with a malpractice attorney about the circumstances of the injury is highly advisable. All conversations between legal counsel and a patient are privileged, and as such, entirely confidential. With sufficient insight and evidence, an attorney can quickly determine on behalf of clients the viability of their possible medical malpractice case, as well as what role comparative negligence doctrines in a given jurisdiction may play in a proposed malpractice lawsuit.


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