Defenses to Medical Malpractice

We assume that doctors won't harm us when we receive medical care. We trust that doctors and other healthcare providers will not make existing injuries or illnesses worse. When doctors make mistakes, we should be able to hold them accountable for the damage they have done. But doctors who don't make mistakes should not be punished for the harm they did not cause.

These ideas sound straightforward. But in practice, it is more complex. In medical malpractice cases, doctors have protection for when they make mistakes. In a lawsuit, these protections are called “defenses."

This article is a brief introduction to a few medical malpractice defenses in medical malpractice lawsuits.

Standard Negligence Defenses

Medical malpractice is a form of negligence. The person who caused the personal injury is usually a doctor or healthcare professional. So, defenses used for general negligence claims can be used in malpractice claims.

For example, in defense of a negligence claim, a doctor may argue that:

• Their care was in line with the standard of care upheld in the medical profession
• The patient's injuries were not the result of a medical error
• The healthcare provider was not the cause of the patient's injuries

Disproving an element of medical negligence is one of the most common defenses to medical malpractice. Other defenses may also apply.

Contributory Negligence

Contributory negligence happens when a patient is partly responsible for their injury. Depending upon your state, if a patient is partly responsible, they can't bring a claim against the doctor.

Medical professionals may not be the only cause of an injury, side effect, or misdiagnosis. Sometimes, the patient is also at fault for the injury. A medical professional can use a contributory negligence defense. The healthcare professional must prove the patient participated in the negligent act.

For example, a patient mixes prescriptions against the doctor's orders. Or, if a patient fails to disclose key elements of their medical history, the doctor may not be responsible for any injuries.

But most jurisdictions follow comparative negligence instead of contributory negligence. So, even if the patient was partly responsible, they can still sue the doctor for the doctor's portion of the harm caused.

Respectable Minority Principle

Sometimes, medical professionals decide to use a new or radical form of treatment when caring for a patient. A doctor's decision to use a new treatment may place the doctor outside of common medical treatment. Doctors can have a valid defense to a medical malpractice claim if a respectable minority of medical professionals support the new treatment. Of course, the doctor must first inform the patient about the risks involved. Failing to inform a patient about potential risks adequately can lead to a lack of informed consent claim.

Good Samaritan Laws

When a medical professional volunteers to aid someone, they owe that person a duty of care. The duty of care and treatment is the same standard as a reasonably competent physician (under the same or similar circumstances).

But many states have Good Samaritan laws. These laws shield individuals who come to the aid of those in medical distress. Doctors, nurses, and other medical professionals are often specifically included in such laws. If a doctor aids someone in an emergency, they'll be protected from civil liability if something goes wrong during the rescue.

Statute of Limitations

State laws place time limits on when an action can be brought for medical malpractice. Some states have adopted the “discovery rule." This means that the statute of limitations period does not begin until an injury is discovered. If a medical professional can show the patient discovered the injury at a certain point, and the statute of limitations has expired, the case may be dismissed.

Additional Resources

Medical malpractice laws differ in every jurisdiction. If you think you have a medical malpractice claim, a medical malpractice lawyer can help. If you want to know your legal rights as a patient, consult an experienced medical malpractice attorney for legal advice.

You can also find more information in FindLaw's medical malpractice section.