Is a Plaintiff Partly at Fault for Bad Outcome?

"Contributory negligence" lessens liability

When a woman presented to an ED complaining of a migraine and requesting a narcotic injection, two nurses and a physician advised this patient she would need a ride home if she received a narcotic.

"She told them all that she did [have a ride]," says Chris DeMeo, JD, a health care attorney at McGlinchey Stafford in Houston, TX. "Unfortunately, the patient was not telling the truth and, shortly after leaving the hospital, she wound up in a single car accident causing severe injuries."

In this case, the hospital was found liable in the ensuing malpractice lawsuit—but so was the patient herself. "The jury found the patient 50% responsible, which significantly reduced the defendant's liability," says DeMeo.

"Contributory negligence" is a defense involving "the negligent conduct of a patient that is a proximate cause of, i.e., 'contributes' to, his or her injury," says DeMeo.

In another case, after a 30-year-old woman died following open-heart surgery, her family sued the cardiothoracic surgeon, a pulmonologist, an ED physician, her primary care physician, and the hospital. The patient had an EKG which showed some abnormalities, and her primary care physician sent her to a pulmonologist.

The pulmonologist was unable to reach a diagnosis because the patient missed three appointments and failed to obtain an echocardiogram. The patient later came to the ED, where she finally had the echocardiogram and was advised to return in a few weeks for follow-up treatment.

"She never followed up with the ED, her primary care physician, or the cardiologist until her situation deteriorated three months later and she needed emergency surgery," says Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH.

During the course of litigation, the defendants presented their defense of comparative negligence for failure to obtain necessary treatment. The plaintiff dismissed the ED physician and the hospital prior to trial, and reached a small settlement with the primary care physician.

"The matter went to trial against the pulmonologist and cardiothoracic surgeon," says Greenfelder. "The pulmonologist was found not liable by the jury, but the surgeon was found liable. The jury, however, also found the patient to be 22% comparatively negligent for failing to follow medical advice, and the verdict was reduced."

Liability Is Lessened

Generally, the patient's contributory negligence will lessen the physician's ultimate liability. "When there is conduct suggesting negligence by the patient, and the physician pleads and proves such negligence, the jury will be asked to assign a percentage of responsibility for the patient's injury to the patient as well as to the physician," explains DeMeo. "Any percentage assigned to the patient naturally lowers the percentage of responsibility attributed to the physician."

"Most jurisdictions recognize some form of the doctrine of 'joint and several liability.' This provides that if a defendant exceeds a certain percentage of responsibility, it can be responsible for the entire judgment," says DeMeo. In Texas, if a defendant is found to be 51% or more responsible, then it can be made to pay the entire judgment regardless of the percentage of responsibility attributed to other persons, including the patient.

Negligence on the part of a patient can range from reckless driving which causes the accident precipitating the ED visit, to delay in seeking help, to not giving a complete history if the patient knows or should know that the issues not disclosed are pertinent to diagnosis and treatment, to not following physician orders after discharge.

DeMeo gives the scenario of a patient presenting to the ED complaining of chest pain. A workup is done with borderline results that the physician interprets as no evidence of acute cardiac illness or other emergency condition.

The patient is observed briefly, but not as long as recommended, and sent home with instructions to return to ED if the pain reoccurs. The chest pain reoccurs, but the patient does not return to the ED. The patient dies later that night of an acute myocardial infarction (MI).

If the patient had returned as instructed, there would have been time to do an emergent heart catheterization to prevent the MI. The patient's family sues the physician for misinterpreting the EKG and other cardiac workup studies, and for discharging the patient too soon. They allege that if the physician would have acted on the studies or kept the patient longer, he would have been in the ED when the chest pain reoccurred and could have taken action then.

The ED physician then raises the defense of contributory negligence and argues that if the patient had returned to the ED as instructed, he would have been saved. The jury is asked to determine, out of 100%, how much the physician's negligence and patient's negligence contributed to the patient's death.

In a case like this, the jury might find that both parties were negligent and that the damages to the family are $1 million. "If the jury were to find that the physician was 50% responsible and the patient 50% responsible, then the physician would be liable for $500,000 rather than the entire $1 million," says DeMeo.

Document this about Patient

Contributory negligence is typically argued in ED cases involving alleged missed MIs with facts that establish the patient either delayed seeking treatment or received instruction for follow-up care that was ignored. Other cases may involve a patient's failure to follow a physician's orders or recommendations, failure to accept necessary treatment or obtain necessary tests, missed appointments, checking out against medical advice, smoking or other activities contraindicative to the patient's health if advised to stop.

Any of these factors, or other activities that show a patient's failure to use reasonable care for his/her own safety and well-being, could become a factor in ED malpractice litigation.

"If an ED physician is sued and believes that the plaintiff may have contributed to his or her own bad outcome, the physician should notify his or her attorney immediately, who will then have the opportunity to evaluate this from a legal perspective," says Greenfelder.

In addition, if you see that a patient is clearly non-compliant with instructions given in the ED, it's a good idea to document this. "Good record-keeping is essential to proof of comparative negligence by a patient," says Greenfelder. "ED physicians should document a patient's history of failure to obtain appropriate treatment. Also document any statements by a patient while in the ED that they do not intend to obtain necessary tests or follow through on the physician's plan of treatment."

Proceed with Caution

The goal of asserting a contributory negligence defense is to lower your own individual liability for the verdict. "However, this defense can backfire if pursued improperly," warns DeMeo. "You can hurt your case if the jury thinks you are picking on the patient."

In situations involving the elderly, parents trying to care for their children, or otherwise "sympathetic" patients, says DeMeo, "not only could asserting contributory negligence not work to lower your liability, it may also make you look uncaring, thus provoking the jury to award higher damages."

"Pursuing comparative negligence vigorously can undermine a unified defense. It can expose weaknesses in your case which will look worse because they are pointed out by a party whom the jury believes is on your 'side,'" says DeMeo.

With these pitfalls in mind, proceed with caution in asserting contributory negligence. The defense can be helpful, though, for patients whom you can prove lied to ED staff or otherwise withheld vital information about their condition or situation, patients who are clear malingerers or who are clearly seeking secondary gain, and patients who deliberately and unabashedly defy doctor's orders.

"Otherwise, treat evidence linking the plaintiff's conduct to the injury as proof that you did not cause the patient's damages," says DeMeo. "Depending on the evidence, and the composition of the jury, the jury may find it easier to say no one was at fault, than to say that the patient was at fault for his or her own injury."

J. Peter Kelley, JD, a health care attorney with Cambridge, MA-based Foster & Eldridge, says that generally speaking, instead of putting the question of plaintiff's contributory negligence to the jury, it is better to argue the facts of the plaintiff's negligence in closing arguments.

"We see some risk in directing a jury to answer a question about the plaintiff's negligence on the verdict slip in highly charged and emotional medical cases," says Kelley. "We prefer to present the issue of plaintiff's negligence in the broader context of the jury answering the question of whether the defendant was negligent."

The issue of plaintiff's negligence, if it appears on the verdict slip, permits the plaintiff to argue that the defendant is "blaming" the patient for the outcome, Kelley explains, "which we consider potentially detrimental to the defense and the provider."

No Liability at All?

The legal concept of contributory negligence establishes that a plaintiff may be partly responsible for his or her own bad outcome. However, is it possible for the patient to be so negligent that the ED physician's liability is wiped away entirely?

DeMeo says that most jurisdictions observe some form of "contributory negligence bar" which provides a complete defense to the defendant, once the plaintiff's negligence reaches a certain amount. In Texas, for example, if a patient is found 51% responsible, then the healthcare provider defendant bears no liability at all, not even for the 49% of responsibility attributed to it by the jury.

In Ohio, once the jury apportions fault to the plaintiff that proximately caused the injury or loss, the court is to reduce damages recovered by the plaintiff by an amount proportional to their degree of negligence. If the percentage of the plaintiff's negligence is found to be greater than the defendants, the court will find in favor of the defendants.

"The effect of the finding of fault on the part of the plaintiff, therefore, is different from what it was under the common-law, contributory negligence rule, and it bars all recovery only if the plaintiff's negligence exceeds that of the other tortfeasors," says Greenfelder.

Kelley says that Massachusetts has a "modified" comparative negligence statute that allows a plaintiff to recover reduced damages only if his or her negligence is not greater than the negligence of the defendant or the combined total of all the defendants' negligence.

"In other words, a plaintiff may be 50% negligent, but not more, and still recover," says Kelley. "The statute does not shift the burden of proof to the plaintiff to prove he or she exercised due care. The burden rests with the defendant to prove the plaintiff's contributory negligence, in order for the fact finder to compare the percentage of fault."


For more information, contact:

• Chris DeMeo, JD, McGlinchey Stafford, Houston, TX. Phone: (713) 335-2132. Fax: (713) 520-1025. E-mail:

• Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail:

• J. Peter Kelley, JD, Foster & Eldridge, Cambridge, MA. Phone: (617) 252-3366. Fax: (617) 252-3377. E-mail: