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What is Comparative Negligence in Medical Malpractice?
There may be times when you are partially responsible for your injury. In these instances, this doesn’t mean that you can’t seek damages for someone else’s part in the incident. When you face a situation where a defendant is arguing that you are partially responsible for your injury, you don’t need to panic. Being partially responsible for your injury does not mean you are not owed damages thanks to a legal concept called comparative negligence.
The medical malpractice and personal injury attorneys at Scartelli Olszewski, P.C. can explain.
What is Comparative Negligence?
Comparative negligence is a law that can be used in any kind of personal injury case, not just medical malpractice. It is used to determine compensation in injury lawsuits where more than one party can be held responsible for someone’s injury or injuries, and one of them is the plaintiff.
In these instances, the court has decided to hold all parties accountable for the injury and the victim’s compensation will be determined based on how accountable they are. It’s a system where the responsibility for an injury can be shared among parties based on the degree of fault each party holds.
The court takes the evidence and the arguments into account when deciding who has how much responsibility for the accident that caused the injury.
Comparative Negligence in Medical Malpractice
Medical malpractice does complicate matters when it comes to comparative negligence. More often than not, the individuals involved in an incident are all working for the same company or group.
So, in a medical context with multiple caregivers, if a patient sues a healthcare provider for medical malpractice, it’s rare for the different personnel to be held responsible. In a medical malpractice case, it’s more common for the court to find that the patient also bears some responsibility for their injury and split the costs as if it were between the patient and the hospital.
For example, a patient didn’t follow the doctor’s instructions about post-operative care, which then resulted in an infection. The court might decide that the patient is partially at fault.
How Is Fault Weighed and Divided?
Under comparative negligence law, the damages awarded to the patient will be reduced by their percentage of fault. So if a patient was found to be 30% responsible for their injury, they would only receive 70% of the total damages awarded.
What your legal team can do is consider this before determining an amount to ask for. If there’s a strong argument for comparative negligence, we can work to find evidence for as much compensation as possible while also maintaining expectations.
Types of Comparative Negligence
It’s worth noting that there are two main types: pure and modified.
- Pure comparative negligence: Here, the plaintiff can recover damages even if they were 99% at fault.
- Modified comparative negligence: A plaintiff can only recover damages if they were less than 50% or 51% at fault. They cannot be more at fault than the defendant.
In Pennsylvania, courts operate under modified comparative negligence, so you cannot be at majority fault and still claim damages from the defendant. If you are not sure if your case can overcome comparative negligence, consult with our attorneys. We’ll look at the evidence, and if necessary, pursue more evidence to make an informed recommendation to you.
What Should You Do If You’re Worried About Comparative Negligence?
The first thing you should do after your or a loved one’s injury is to get medical attention. Then once you have healed, collect whatever evidence you can in preparation for a consultation.
Our medical malpractice and personal injury attorneys have significant experience consulting and representing people in cases where they may have been partially responsible for their injuries. We can help you. Contact us today.
