Comparative negligence (or proportionate responsibility) is a legal doctrine that allows a defendant to try and shift blame onto the plaintiff. In the context of a Texas medical malpractice case, this can come up in a few ways.
Failure to disclose past medical history
In a physician-patient relationship, the physician owes a duty to the patient to provide medical care and treatment within the standard care. In the same relationship, though, the Texas Supreme Court has contemplated that a patient may owe a duty to the physician to disclose prior medical conditions or diagnoses.
This is exactly the argument that a hospital made in a case decided back in 2008 by the Texas Supreme Court, styled Columbia Medical Center of Las Colinas, Inc. d/b/a Las Colinas Medical Center v. Hogue, 271 S.W.3d 238 (Tex. 2008).
The hospital contended that the patient contributed to his own injuries by failing to tell the doctors about his previous heart murmur diagnosis. The court sided against the hospital on the big issue, finding that even if there was such a duty, there was no evidence that the patient’s nondisclosure was a cause of his injury. The opinion left open the possibility that such a duty could exist, though.
Even beyond the legal issues of comparative negligence, it’s in every patient’s best interest to try and provide physicians and nurses with as much information as possible about medical history, previous conditions and diagnoses, and medications. This helps in the diagnostic process and medical decision-making.
Patient or family noncompliance
In a medical malpractice case that I’m handling now, the attorney for a defendant nursing provider is asking lots of questions in discovery and deposition, aiming to prove that the patient’s family is the one at fault. The defendant suggests that the nurse trained the family, but the patient’s relatives didn’t follow the nurse’s education and instructions and, as a result, caused the patient’s injury. My clients, by the way, say there’s no way that this is true.
Healthcare providers use the term noncompliance to describe any instance when the patient gets in the way of proper healthcare. This can involve not following physician orders, nursing instruction, or a medication administration schedule.
Why does it matter?
If a medical malpractice defendant believes that it has sufficient evidence to show that the patient contributed to his or her injury in some way, then it may choose to plead comparative negligence.
Texas law has what’s described as a modified comparative negligence statute. In any civil negligence case, it’s up to the jury to decide who’s at fault and by what percentage. With proper pleading and evidence, a defendant can secure the plaintiff’s name on the list of parties who are potentially responsible.
A defendant is only responsible for its proportionate responsibility (percentage responsibility), as defined by the jury, up to the magic number 51%. If the jury finds that a defendant is at least 51% responsible, then the plaintiff can collect the entire judgment against that defendant under doctrine called joint and several liability.
On the other hand, if the plaintiff’s name appears on the jury charge in the jury finds that the plaintiff is over 51% responsible, then the recovery is completely barred. If the plaintiff has some responsibility under that magic threshold, then the plaintiff will be unable to collect that percentage of the judgment.
If you have a potential medical malpractice claim, it's important to select a top-rated attorney who's experienced in this complex area of the law.