In earlier articles, I discussed some basics about medical malpractice. Now I want to briefly review some defenses to negligence. Keep in mind that all negligence claims are not credible; and even if a credible claim exists, there are many avenues to resolution. If the required elements of negligence are present and cannot be contested, defenses to negligence may be considered.
One method for mounting a defense to medical malpractice is to assert that the plaintiff caused their own injury, and because of the plaintiff’s action the defendant should not be held liable for the injury. A jurisdiction that recognizes contributory negligence would bar recovery by the plaintiff if the plaintiff is found to have contributed to the cause of his injury. A jurisdiction that recognizes comparative negligence (of the plaintiff) would decrease any award for a plaintiff’s claim based on the amount of fault the court determines the plaintiff contributed to the injury. Additionally, if the defense can establish the plaintiff knew the risks involved in an activity and voluntarily performed the activity, then assumption of the risk might be the appropriate defense to relive the defendant of liability. Adherence to these theories is ascertained by reviewing relevant case law in the applicable jurisdiction, and review of relevant statutes in the applicable jurisdiction.
Consider this example: Priscilla Patient arrives at Sunshine Valley Ambulatory Surgical Center (ASC) for a laproscopic appendectomy. After completing and signing all of the required forms in the admitting office, Priscilla is led to the dressing room to disrobe and to change into her gown for surgery. Priscilla disrobes leaving only her underwear remaining under the gown. As Priscilla gathers her belonging and opens the door to exit the changing room, Priscilla’s right great toe makes contact with the door of the dressing room. The contact doesn’t initially bother her so she doesn’t tell anyone about it. The next day, during the follow-up post-operative call, when asked if she has any questions or concerns about her procedure the prior day, Priscilla states, “My surgery went fine, but my right big toe is really hurting where the door hit it. Now it’s swollen and really hot.”
This example is hypothetical. However, at this point many options can occur. If Priscilla decides to sue the ASC for her injured toe, all of the required steps (such as fact gathering and determining if the claim is credible) will begin to be pursued by her legal team. In a claim of negligence against the Sunshine Valley ASC, if a defense to negligence for a claim like this were considered, it is reasonable to suggest that Priscilla had something to do with the injury that she now has because she didn’t tell anyone about it when it occurred. If a court believed that proposition, any award to which Priscilla may have been entitled to would be either barred in a contributory negligence jurisdiction, or reduced in a comparative negligence jurisdiction. If the defense can establish that Priscilla chose to exit the dressing room without foot coverings, knew she was injured before she had surgery, and before she left the facility, and she chose not to inform medical personnel who were readily able to assess and treat any injury if any were present, then assumption of the risk might be the choice to rebut Priscilla’s claim of injury to her toe. The legal team will evaluate the facts of the case and apply the law as indicated.
Pamela Chambers, MSN, CRNA, EJD
About the author: Pamela Chambers is a staff CRNA a Central Texas regional trauma center and the affiliated Children’s hospital. Ms Chambers received her MSN in 2000 while on active duty in the U.S. Army; then received her Executive Juris Doctor (EJD) in Health Law in 2008 from Concord Law School. Ms. Chambers owns Lex Terrae Consulting a health law research and consulting firm and also teaches Legal Nurse Consulting for Kaplan University. Ms. Chambers is not an attorney. The information provided is legal research and should not replace consultation with an attorney or physician when warranted. Click here to learn more about Lex Terrae Legal consulting services.
I like the articles that Pamela Chambers is writing for this blog. The topics are good and the content is easy to read. Thanks