Question

Discuss how the doctrine of comparative negligence ameliorates the effects of the harsher doctrine of contributory negligence?

Answer 1

INTRODUCTION:

Accidents take place everyday and people are injured and property is damaged. When accidents happen, one of the first questions people typically ask is: "Who was at fault?"

The concepts of contributory and comparative negligence address this question and provide a way to allocate fault between parties when the answer to this question is not entirely clear.

Medical malpractice lawsuits are usually looked at from the side of the patient because if he or she is bringing the lawsuit then the doctor has performed some form of negligence.

Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. If you are negligent, and your negligence causes another person to become injured, then you are legally responsible for paying damages.

Contributory Negligence-Meaning

The concept of contributory negligence is used to characterize conduct that creates an unreasonable risk to one's self. The idea is that an individual has a duty to act as a reasonable person. When a person does not act this way and injury occurs, that person may be held entirely responsible for the resulting injury, even though another party was involved in the accident.

Comparative Negligence Meaning

Instead of contributory negligence, most states apply the doctrine of comparative negligence. Under this legal theory a person is compensated depending on his or her proportionate degree of liability. A person may be eligible for damages even if that person's negligence contributed to his her own injury. Each party's negligence for a given injury is weighed when determining damages.

HOW THE DOCTRINE OF COMPARATIVE NEGLIGENCE AMELIORATES THE EFFECTS OF THE HARSHER DOCTRINE OF CONTRIBUTORY NEGLIGENCE?

Under the theory of contributory negligence, a person is prohibited from recovering damages for an injury if his or her own negligence contributed to the injury. Recovery is barred even if a person was only slightly responsible for the injury.

Traditionally, the courts viewed contributory negligence as a total bar to the recovery of any damages. Under this view, if a person had contributed to the accident in any way, the person was not entitled to compensation for his or her injuries.

Contributory negligence statutes barred recovery of a plaintiff in the event of any fault in causing the damages subject to the claims case.

In an attempt to reduce the harsh, often times unfair outcomes resulting from this approach, most states have now adopted a comparative negligence approach.

Medical malpractice claims are always complicated affairs. A wide range of different elements will contribute to the case, and this can make even what seems like the simplest of cases become entangled in a legal mess quickly. It is impossible for a patient to understand all of this on his own, and to understand just how potential damages are calculated. Comparative negligence can play a huge role here.

In the broadest legal sense, comparative negligence involves any defense raised by a defendant in a tort claims case in which assertions are made that the plaintiff is liable, at least in part, for his own damages. In short, comparative negligence seeks to present to the trier of the facts, whether a judge, the probability that a plaintiff contributed to, exacerbated, or caused the damages that are currently being claimed by the plaintiff.

        Situated in a medical malpractice context, comparative negligence is predicated on state-specific and case-specific factors, with the ultimate decision on the degree or proportionality of fault being subject to the terms of a settlement agreement or the determination of the tier of the case, whether a judge or jury.

• In a jurisdiction that has adopted a pure contributory negligence system, a Plaintiff is not allowed to collect if he or she is even 1% at fault for the accident.

For example, if a pedestrian is crossing the street and is hit by a speeding car, the pedestrian will not win a lawsuit for the injuries suffered if he or she failed to look both ways before crossing the street, or if he or she did not cross in a designated crosswalk.

Comparative negligence provides that the total amount he might receive in compensation for his or her injuries will be reduced by the percentage for which that person is responsible for his or her own injuries. Under this framework, a person who is 90% at fault in a car accident can still sue for any injuries he or she suffered, but can only recover 10% of those injuries.

• There are many viable medical mal practice defenses that can be sued in by a lawyer employed by a medical professional or entity to win the case.

In some instances winning the case can be defined as limiting the financial and professional damage done to a doctor or hospital. In these cases, however, there is a certain element of negligence that needs to be admitted in open court. Though not all medical malpractice cases need to fall under this category the personal injury of a patient can be his or her own doing.

• As a legal principle, contributory negligence is often considered overly harsh. Many defendants have no difficulty demonstrating that the plaintiff was 1% responsible for the injury. Thus, most of states have abandoned this doctrine.

In a typical medical malpractice case, a patient sues a health care provider (doctor, hospital, etc.) for medical negligence, which basically means failing to use proper skill and care in providing medical treatment. But as a defense to the medical malpractice allegation, the health care provider may turn around and claim that the patient’s own negligence caused or contributed to his or her own harm, or prevented the patient from recovering.

The legal concepts of contributory negligence and comparative negligence come into play when the defendant claims that the patient is partly at fault for their injuries. And that’s when the behavior of the patient becomes an issue for the court in a law suit or for the insurance company in the investigation of a claim.

If it turns out that the patient is partly responsible for causing or contributing to the harm suffered, then the patient’s economic recovery (compensation for medical malpractice) may be reduced or completely barred.

For the purposes of contributory or comparative negligence in medical malpractice, courts are interested in the patient’s behavior once the health care provider is involved.

Pursuant to comparative negligence, an injured party may seek to recover damages for his injury against a negligent defendant if the injured party's own negligence was less than defendant's negligence.

In situations in which the plaintiff and defendant both exhibited negligent conduct, the parties' negligence is compared. Each party's negligence is lowered to match the percentages of the total amount of negligence that contributed to the injury. Ratios for the relative amount of negligence of each party are applied. If an injured plaintiff is ruled to have been 30 percent negligent in causing the ultimate injury at issue, and defendant is found to have been 70 percent negligent, the trier of fact adds up all of the damages potentially awarded to the plaintiff and reduces the plaintiff's damage award by 30 percent.

Since doctrine of comparative negligence overcomes the harsh, unfair outcomes resulting from Contributory negligence and both the plaintiff and defendent are equally given justice, the doctrine of comparative negligence ameliorates the effects of the doctrine of contributory negligence.