Slate's Law Blog Does Comparative Fault Affect Medical Malpractice Claims?

Medical malpractice, or medical negligence, refers to a situation in which a healthcare provider fails to live up to a reasonable standard of care set by other healthcare providers in similar fields and in the same geographic region. Many types of medical malpractice claims arise out of “never events,” or medical mistakes that are entirely avoidable and never should have happened. Examples of “never events” include operating on the wrong body part or leaving a foreign object inside a patient after surgery. Yet not all medical negligence claims result from “never events.” Many successful medical malpractice claims occur when a healthcare provider’s negligence is less clear-cut. In some of these situations, the healthcare provider’s liability may be in question as a result of the plaintiff’s own negligence.

How, if at all, does comparative fault affect medical malpractice claims in New Mexico?

Medical Malpractice Cases Usually are Not Impacted by Comparative Fault

In other types of personal injury cases, comparative fault can be a common defense raised by the at-fault party to avoid full liability. Comparative fault simply refers to the plaintiff’s own contribution to his or her injuries (or, as the name suggests, the plaintiff’s own fault compared to the fault of the defendant). In most types of medical malpractice cases, the injured patient simply does not play a role in the treatment or procedure that results in harm. Unlike a car accident case, for instance, where an injured plaintiff may have been speeding when she was struck by a drunk driver in a head-on collision, the patient in a medical negligence case is not typically involved in the negligent act or omission in the same way.

However, in some instances, a patient’s own negligence can become a factor in a New Mexico medical malpractice claim.

Examples of a Patient’s Own Negligence Affecting a Medical Malpractice Injury

Comparative fault is not as common in medical malpractice cases as in certain other types of personal injury claims, but healthcare providers can cite the patient’s own negligence as a factor in that patient’s harm. Even though a patient may not play an active role in a medical procedure, that patient can still take actions or omit information that can contribute to his or her harm. The following are examples of scenarios in which comparative fault may result in the patient’s recovery being reduced as a result of his or her own negligence:

  • Patient gave false or misleading information to a healthcare provider about a condition or injury;
  • Patient failed to provide a healthcare provider with a complete and relevant medical history;
  • Patient omitted information about using certain types of medications or over-the-counter products;
  • Patient failed to follow a doctor’s post-surgical procedures;
  • Patient did not attend a doctor’s appointment for a necessary follow-up after a treatment or procedure; and/or
  • Patient participated in activities that worsened an existing medical condition or injury.

Under New Mexico’s comparative fault law, even if a patient is partially at fault for the severity of her harm, she can still recover damages. New Mexico is a “pure” comparative fault state, which means a plaintiff can recover damages regardless of her amount of fault (up to 99% of the fault), but her damages award will be reduced by her portion of the fault.

Contact a New Mexico Medical Malpractice Lawyer

If you have questions or concerns about comparative fault in your medical malpractice claim, do not hesitate to get in touch with an experienced medical malpractice lawyer at our firm. Contact Slate Stern Law today for more information.


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