Generally in a medical malpractice case, a patient makes a medical negligence claim against a healthcare provider for breaching the duty of care or failing to use proper skill when providing treatment. The healthcare provider, in their defense, may try to shift the blame onto the patient and prove that their own negligence resulted in harm or hindered in their recovery, deteriorating their condition further.
In such a situation, courts apply the legal concept of comparative negligence to determine the extent of fault of the patient and healthcare provider in the damage. If it is found that the patient is partly responsible for the damage they suffered, it can significantly affect the amount of compensation, or in some cases, bar it altogether. If you are planning to file a medical malpractice case against your healthcare provider, you need to evaluate your own actions and determine how they may affect your case.
What is Comparative Negligence in Medical Malpractice?
Comparative negligence applies to a situation where both parties, the plaintiff and defendant, share the responsibility of the accident where damages were suffered. It helps in determining which party should receive compensation for losses and in what amount. In a case of medical malpractice, courts generally assess the percentage of fault of the patient applicable in a given case.
For example, you went to the ER with pneumonia to get treatment for your condition. The doctor tells you that you should get admitted into the hospital, but did not warn you about the risks and dangers if you do not consider their advice. You feel better with the immediate relief treatment you get in the ER and sign yourself out, ignoring doctor’s advice. Later on, serious complications begin to arise and you file a claim against the doctor or hospital. In such a situation, comparative negligence will come into play to determine the extent of liability.
Effect of Modified Comparative Negligence on a Medical Malpractice Case
As a standard, Illinois courts follow the modified comparative negligence rule for recovery of damages. Under this rule, if the plaintiff is more than 50 percent at fault for the damages, they will not be awarded any recovery. Moreover, the amount of compensation will be reduced with the increase in the percentage, meaning that you may have better chances of getting adequate compensation when you are just 10 percent at fault than being at 40 percent.
If you think you are partly responsible for your injuries, you should consider getting legal counsel of an experienced medical malpractice attorney before making a claim. The attorney will view your situation from different angles and will advise you whether going to the court is a suitable idea. Doing so is highly recommended because if you are found to be more responsible for the damages, your case will be dismissed and you will incur costs of bringing legal action to the other party.
Contact Fisk & Monteleone Ltd. today at 815-209-9030 to schedule a free case consultation with one of our experienced attorneys.