What Patients Need to Know About Their Legal Options When Negligence Causes Injury

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Suffering an injury due to a medical provider’s negligence is about as traumatic an experience as they come.

Not only are patients in pain, they’re left wondering…

Who is actually at fault?

Can the patient sue?

Does it matter if the patient was partially at fault?

Answers to these questions can mean the difference between taking legal action or not. Unfortunately they are also the questions most injured patients never ask – until it’s too late.

DON’T MAKE THAT MISTAKE.

Inside this guide:

1. Medical Negligence Defined
2. Everything You Should Know About Comparative Negligence
3. Understanding How Comparative Negligence Impacts a Claim
4. The Most Important Things to Do After a Negligence Injury
5. What NOT To Do After Injuring Yourself Due to Negligence

What is Medical Negligence?

Put simply: medical negligence is when a doctor or provider’s care falls below an accepted standard — and that care causes direct harm to a patient.

This is distinct from a poor outcome. Not every injury at the hands of a medical professional is negligent.

That’s because negligence requires an action (or inaction) that would not have been taken by any reasonable provider under the same circumstances.

Typical examples include:

• Misdiagnosis or delayed diagnosis
• Surgery on the wrong patient / body site
• Surgical items left behind
• Wrong medication or improper dosage
• Failure to diagnose warning signs

National statistics vary wildly depending on who is asked. But most sources agree that over 250,000 people die yearly from medical mistakes. That makes errors like negligence the third leading cause of death in the United States.

Just behind heart disease and cancer.

Here’s the crazy part…

Less than 1% of these incidents end up in a malpractice lawsuit. About 1 in 124 adverse incidents actually gives rise to a claim. Millions of injured patients who deserve legal recourse are never represented.

Understanding Comparative Negligence

This is where it gets interesting.

A patient assumes their doctor was at fault. Naturally, they believe that doctor is responsible for 100% of the injury.

But what if that’s not the case?

The legal concept of comparative negligence allows doctors (and their insurers) to argue that patients were partially responsible for their own injuries. When that argument succeeds, it dramatically reduces what patients can recover.

There are two types of comparative negligence:

Pure – Patients can recover damages even if they are found 99% at fault. However, they will lose an equivalent amount of the potential verdict. (If the patient is 25% at fault, they can only recover 75% of total damages.)

Modified – Patients cannot recover if they are found to be more responsible (50% or 51%, depending on the state) for the resulting injury than the medical provider.

Again, this concept is critically important. California follows the pure comparative negligence standard. That means understanding personal injury lawsuits in California is essential — patients who are partially at fault for their own injury can still file lawsuits and recover compensation. Their award would simply be reduced by their own percentage of fault.

This should be understood ahead of filing a claim.

Comparative Negligence Impacts a Claim How?

Okay. Let’s say a patient was frantically tapping their feet during a doctor’s consultation and missed key details that led to their injury. The court decides they were 25% at fault.

How does this impact the actual case?

Let’s use an example.

Dr. Smith prescribes the wrong medication after Susan fails to clearly communicate her drug allergies. The court finds Dr. Smith 75% responsible for prescribing the wrong medicine. But Susan was 25% at fault for not providing complete medical history.

If compensatory damages (a.k.a. total damages) were $100,000 – Susan would only recover $75,000.

(Total Damages – Patient’s Percentage of Fault = Compensation Award)

It doesn’t matter if a patient was 1% or 99% responsible. If it can be proven the provider was at fault too, damages can still be recovered.

Comparative negligence just lowers the award.

Insurance companies and defense lawyers know this. If they can flip the script and prove the patient was partially at fault for their own injuries, they can reduce – or completely eliminate – any potential settlement. Establishing early on what happened – and documenting every detail – cannot be overstated.

Seriously.

What To Do After Injuring Yourself Due to Negligence

Injuries due to medical negligence need to be handled immediately. The sooner action is taken, the better.

Here are the first four things injured patients should do:

1. Gather all medical records, including documentation of all related visits after the injury. Documentation should include doctor’s notes, communications with the provider’s office and records of all medications prescribed.
2. Collect bills from hospitals, pharmacies and doctors alike. These may also be useful later.
3. Do NOT provide a recorded statement to the provider’s insurance company. Doing so signs away patient rights before it is even known whether there is a case.
4. Contact a local personal injury attorney. A good personal injury lawyer will explain how comparative negligence rules impact a potential claim and what it is worth.

As far as time limits go, California patients have three years from the date of injury to file a lawsuit. They also have one year from the date the injury was reasonably discovered. If those windows are exceeded – no claim can be filed at all.

Essentially destroying the case.

What NOT To Do After Injuring Yourself Due to Negligence

Believe it or not, most people hurt themselves before they even speak to a lawyer.

The worst things injured patients do include:

• Waiting to talk to an attorney. Time is everything. When establishing negligence is delayed – key evidence goes missing.
• Speaking directly to the provider’s insurance company. Adjusters work for the provider’s insurance company. Their job is to settle claims for as little as possible.
• Skipping follow-up treatments. Failing to follow a prescribed medical treatment allows the defense to blame the patient for exacerbating their injuries.
• Documenting injuries on social media. If it wouldn’t be shown to the defense, it should not be posted online.
• Thinking there can’t possibly be a case. Patients who bear any responsibility for their injuries automatically assume they have no case. That’s just not true.

Wrapping Up

Injuries due to medical negligence are unfortunately more common than most people think. And the ability for patients to take legal action is much more prevalent than most believe.

If there’s one thing that drives the legality of these cases, it’s comparative negligence. Understanding how negligence percentages are determined — and how they may impact the ability to recover damages — is crucial.

To review:

• Medical negligence is when care falls below a standard. And that negligent care causes harm to a patient.
• Comparative negligence argues that multiple parties were at fault. Which reduces, but does not eliminate, potential recovery.
• Pure comparative negligence states allow patients to still file suit even if they share some of the blame. (California is one of these states.)
• Taking quick action and documenting everything post-injury is paramount.
• Patients harm their own cases by waiting too long to seek legal advice, among others.

It’s time to speak to a lawyer.

Shared fault does not mean being out of luck. Failing to understand the state’s rules – and taking immediate action – are a patient’s and their family’s best options.