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Comparative Negligence in Medical Malpractice Claims

Author: Webmaster / August 8, 2016 / Categories:

When an individual suffers an injury as a result of medical malpractice, he or she has the right to file a claim for compensation of damages. As with many types of personal injury cases, a person claiming malpractice must be able to prove that the negligence did indeed occur and that the injuries sustained directly resulted from it.

In many hospital malpractice cases, the person whose negligence caused the injuries (a doctor, nurse or hospital in general) typically pays for the victim’s medical bills and other damages. In the State of Florida, however, the injured person may assume comparative negligence in their own medical malpractice case.

What is Comparative Negligence?

In some cases, more than one person may have contributed to the medical malpractice received by the injured person. Also, the injured person themselves may have contributed in some way to their injuries. Since these types of cases can have multiple negligent parties, the statutes of comparative negligence were created.

In a comparative negligence system, a jury or judge determines and assigns a proportion of fault to each responsible party and then apportions the damage award accordingly. This means that each party will be assigned a proportion of the fault, and then will have to pay that proportion in damages to the injured party.

Using this system, an injured person may recover some of his damages even if he was partially to blame for causing the accident. For example, even if the victim is found to be 99% at fault in causing his injury, he will still be able to receive the 1% in damages caused by the other negligent party. As you can see, the victim’s financial recovery will just be reduced, depending how his own actions caused or contributed to the injury.

Remember that many exceptions to the standard negligence systems are present in several states. Additionally, some states limit the types of cases to which these negligence systems may apply.

What Types of Things can be Used Against Me?

If you have received an injury from some sort of medical malpractice and choose to file a claim, the doctor or other medical care provider under scrutiny will often try to build their own defense. As a result, the doctor may review your medical records and look for certain information such as:

  • Instances of missed appointments
  • Noncompliance with a treatment plan
  • Written documentation of you engaging in lifestyle choices that could be bad for your health

All of these pieces of information could be used as evidence against your claim if the doctor presents these instances to the jury. If the jury feels you are in part responsible for your damages or injury, your award will be lessened by the percent of comparative negligence they ultimately determine.

If you or a loved one believes to have been the victim of a doctor’s negligence, remember that you always have the option of seeking legal help from a malpractice attorney. The Deltona medical malpractice attorney at Rue & Ziffra, P.A. has experience in representing the victims of nursing home abuse, medical malpractice, hospital negligence and other areas of practice.

The above entry is NOT LEGAL ADVICE and should not be intended or construed as such. It is intended only as general information. No individual reading it should act upon it. Reading this entry does not create any relationship between Rue & Ziffra, P.A. and individuals reading it. If you have questions or concerns, please seek professional legal counsel.

Comparative Negligence in Medical Malpractice Claims
Written by: Kim Bouck, Esq.

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