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In: Nursing

Health Law In the United States, all medical malpractice law is litigated and resolved in one...

Health Law

In the United States, all medical malpractice law is litigated and resolved in one of two ways. Each state will choose which theory (only one theory is chosen to be used by each state) used to resolve all cases within their jurisdiction. The first is the theory of contributory negligence. In this theory, the original law (and ancient law derived from the Common law of England) states that, under this doctrine, if the patient contributed at all to the harm caused by the medical professional, then the patient was not entitled to any compensatory relief. In other words, no suit for damages would be allowed against the medical provider. This theory insisted that only a completely blameless patient should have recourse against a medical professional.

The second theory is the theory of comparative negligence. This is the more modern doctrine. Under comparative negligence all injured patients could still file a malpractice suit even if the patient contributed to the harm caused. Therefore, if a doctor was 50% at fault and the patient was 50% at fault, the patient could still recover 50% of the damages from the doctor.

Set forth two strengths and two weaknesses for each of these theories and choose which one you believe to be the most just and why.

Solutions

Expert Solution

Contributory negligence

In the pure contributory negligence under the common law doctrine, if Plaintiff in any way caused his injury, he was barred from recovery.

The plaintiff will be responsible for proving his non-negligence

The defendant will be free of charge or recovery if the plaintiff is responsible for the negligence in any way. If the percentage of negligence is more than 0 percentage the recovery will be nil.

This will make sure that the people will be responsible for their safety.

The intentional injury to self will be limited

Protects the defendant in case of accidents he is not responsible

The defence to Contributory Negligence is: show that Defendant's conduct is reckless or unintentional, being a rescuer.

The presumption of negligence by Defendant.
The burden of proof shifts to Defendant, that to prove he was not negligent.

It is unfair that one party has to bear the entire loss even when that loss was caused in part by others

The rule treats the negligent defendants significantly better than negligent plaintiffs.

Many juries would end up finding plaintiffs as less faulty and resulting in defendants being held liable more often.

Comparative negligence

Comparative negligence divides the damages based on each party’s negligence.

It allows the negligent plaintiff to recover from a negligent defendant based on the percentage of damage caused by him.

The shares of the cost will be distributed to both the parties based on the percentage of damage caused by them.

The application of rule becomes difficult when the complexity of apportioning liability with the multiple causations.

There are two different forms of the comparative negligence rule: pure comparative negligence and modified comparative negligence.

The pure comparative negligence: the plaintiff may recover from a negligent defendant even when her own negligence percentage is greater than that of the defendant.

The modified comparative negligence: It bars a negligent plaintiff’s recovery when the plaintiff’s fault exceeds a certain level in comparison to the defendant’s fault. The plaintiff’s compensation will be reduced in proportion to her negligence as in the pure form and she may not receive any recovery at all if her negligence reaches a certain proportion of the defendant’s.

The modified comparative negligence rule is a combination of pure comparative negligence and contributory negligence to an extent. Similarly, when the threshold is exceeded, modified comparative negligence exhibits the properties of contributory negligence, including the placement of a higher burden on plaintiffs than on defendants.

In medical malpractice cases either the contributory or comparative negligence might be a factor, The courts focus on the damage occurred once the patient sought treatment for the health problem or injury at issue in the case.

The percentage rule distributes the burden equitably based on the damage caused by each party. The Contributory negligence in the modified form is the best practice. Which has the modifying factors of 50% rule? The damage caused by both plaintiff and defendant is considered. The modification allows the easy calculation.


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